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VARN, et al.
September 15, 2000
Record No. 992345
MILES VARN, M.D. AND
JULIAN ORENSTEIN, M.D.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
Present: All the Justices
OPINION BY JUSTICE ELIZABETH B. LACY
In this appeal, we consider whether the trial
court erred in holding that an obstetrician-gynecologist was not
qualified to give expert testimony on the standard of care for a
pelvic examination performed by an emergency room physician.
Vida Sami went to the emergency room of Fairfax
Hospital on January 26, 1994. She told the hospital personnel she
was pregnant and that she was in pain and experiencing vaginal
bleeding. Three separate pelvic examinations were performed on
Sami: one by a medical resident; another by an emergency room
physician, Dr. Miles Varn; and a third by the resident
obstetrician-gynecologist on call at the hospital, Dr. Barbara
A. Dill. Their conclusions were that Sami had undergone a
spontaneous abortion or miscarriage and, according to Dr. Dill,
the "miscarriage had completed itself." Sami was
discharged from the hospital and given instructions for a
follow-up appointment within four weeks.
Sami returned to the Fairfax Hospital emergency
room in April of that year, and again in June, complaining of
pain. Dr. Julian Orenstein, an emergency room physician,
performed a pelvic examination and discharged Sami, instructing
her to take a non-prescription pain medication.
In late June 1994, Sami went to the office of
Dr. Herbert Roberts, an obstetrician-gynecologist, complaining of
continuing abdominal pain. Dr. Roberts performed an abdominal
examination, administered a sonogram, and found a "pelvic
mass." When Dr. Roberts operated on Sami to remove the mass,
he discovered that the mass was a second uterus containing a
twelve to fifteen-week-old dead fetus.
Sami filed a motion for judgment against a
number of physicians at Fairfax Hospital, including Drs. Varn and
Orenstein, alleging negligence and "infliction of emotional
distress." Sami filed a second motion for
judgment against Fairfax Hospital on the same theories, claiming
that the Hospital breached its duty to properly supervise its
employees. The motions for judgment were consolidated.
During a jury trial, Sami sought to qualify Dr.
Roberts as an expert witness on the standard of care. Following voir
dire of Dr. Roberts, the trial court concluded that Dr.
Roberts was qualified as an expert on the standard of care
applicable to the actions of Dr. Dill, an
obstetrician-gynecologist, but that he was not qualified to
testify to the standard of care applicable to Drs. Varn and
Orenstein, emergency room physicians. The trial court held that
Dr. Roberts did not "demonstrate expert knowledge of the
standards of defendant[s’] specialty," and that he did not
"have an active clinical practice in ER" or a related
field. Without Dr. Roberts’ testimony, Sami did not have an
expert to establish the standard of care and breach thereof by
Drs. Varn and Orenstein, and the trial court sustained a motion
by those defendants to dismiss Sami’s claims against them.
Following further testimony, the jury returned
a verdict in favor of the hospital. Sami filed this appeal
asserting that the trial court erred in holding that Dr. Roberts
was not qualified to offer expert testimony on the standard of
care applicable to the pelvic examinations performed by Drs. Varn
The qualification of a witness as an expert is
governed by Code ? 8.01-581.20, which states, in relevant
A witness shall be qualified to testify as an
expert on the standard of care if he demonstrates expert
knowledge of the standards of the defendant’s specialty and of
what conduct conforms or fails to conform to those standards and
if he has had active clinical practice in either the defendant’s
specialty or a related field of medicine within one year of the
date of the alleged act or omission forming the basis of that
Drs. Varn and Orenstein argue that the trial
court properly declined to qualify Dr. Roberts as an expert on
the standard of care applicable to them on two grounds: (1)
because Dr. Roberts did not demonstrate expert knowledge of their
specialty, emergency room medicine; and (2) because he had not
had a clinical practice in their specialty or a related field
within one year preceding the date of the alleged malpractice. We
disagree with both of these arguments.
Whether a witness demonstrates expert knowledge
of the appropriate standards of the defendant’s specialty is a
question largely within the sound discretion of the trial court. Lawson
v. Elkins, 252 Va. 352, 354, 477 S.E.2d 510, 511
(1996)(citing Grubb v. Hocker, 229 Va. 172, 176, 326
S.E.2d 698, 700 (1985)). However, we will reverse a holding that
a witness is not qualified to testify as an expert when it
appears clearly from the record that the witness possesses
sufficient knowledge, skill, or experience to make him competent
to testify as an expert on the subject matter at issue. Noll
v. Rahal, 219 Va. 795, 800, 250 S.E.2d 741, 744 (1979).
In this case, Dr. Roberts testified that he was
familiar with the standards of care applicable to pelvic
examinations and that these standards were the same for an
emergency room physician and an obstetrician-gynecologist. Dr.
Dill, a defense witness, testified that she knew of no
"variation among the medical profession on performance of a
Nothing in the record in this case contradicts
the testimony of Drs. Roberts and Dill, that the standards
applicable to the performance of a pelvic examination by an
obstetrician-gynecologist and an emergency room physician are the
same. Dr. Roberts’ lack of knowledge regarding certain procedures
of emergency medicine might disqualify him from rendering expert
testimony as to those procedures, but that lack of knowledge does
not preclude him from giving expert testimony on procedures which
are common to both emergency medicine and the field of
obstetrics-gynecology and are performed according to the same
standard of care. See Griffett v. Ryan, 247 Va.
465, 472-73, 443 S.E.2d 149, 153-54 (1994).
In light of the record in this case, the trial
court was not entitled to ignore the uncontradicted testimony
that the standard of care for the performance of pelvic
examinations was common to both specialties. Cheatham v.
Gregory, 227 Va. 1, 4, 313 S.E.2d 368, 370 (1984). In
qualifying Dr. Roberts to testify as an expert regarding Dr.
Dill’s performance of a pelvic examination, the trial court
acknowledged Dr. Roberts’ knowledge of the relevant standard of
care for that procedure. Therefore, we conclude that the trial
court abused its discretion in holding that Dr. Roberts did not
demonstrate sufficient knowledge of the standard of care at issue
in this case to qualify as an expert witness on that standard.
Drs. Varn and Orenstein also argue that the
trial court’s ruling was correct because Dr. Roberts did not have
an active clinical practice in their specialty or a field related
to their specialty, as required by ? 8.01-581.20. Dr.
Roberts does not have an active clinical practice in emergency
medicine, but he does have an active clinical practice in
obstetrics-gynecology. Sami argues that obstetrics-gynecology and
emergency medicine should be considered related fields of
medicine for the purposes of ? 8.01-581.20 in the instant
case because the procedure at issue is performed in both
specialties and the standard for performance is identical. We
agree with Sami.
We have not previously considered the
application of the phrase "related field of medicine"
in circumstances similar to those presented in this case.
The phrase contemplates a clinical
practice which differs from that of the defendant, but the
statute provides no guidance for determining whether a clinical
practice is "related." The purpose of the requirement
in ? 8.01-581.20 that an expert have an active practice in
the defendant’s specialty or a related field of medicine is to
prevent testimony by an individual who has not recently engaged
in the actual performance of the procedures at issue in a case.
Therefore, we conclude that, in applying the "related field
of medicine" test for the purposes of ? 8.01-581.20,
it is sufficient if in the expert witness’ clinical practice the
expert performs the procedure at issue and the standard of care
for performing the procedure is the same.
In this case, as recited above, the procedure
at issue, a pelvic examination, is governed by the same standard
of care in both the emergency room and obstetric-gynecology
practice settings. Nothing in this record indicates that the
emergency room setting required the procedure to be performed in
a manner different than it would be performed under other
circumstances. Dr. Roberts had an active clinical practice which
included the performance of pelvic examinations within one year
of the alleged malpractice. Thus, we conclude that Dr. Roberts
had an active clinical practice in a related field of medicine
for purposes of ? 8.01-581.20.
Because Dr. Roberts satisfied both requirements
of ? 8.01-581.20, it was an abuse of discretion by the
trial court to rule that Dr. Roberts was unqualified to give
expert testimony on the standard of care for the performance of a
pelvic examination by the emergency room physicians in this case.
Accordingly, we will reverse the judgment of the trial court and
remand the case for further proceedings consistent with this
Reversed and remanded.
 The other defendants in this
action were dismissed by the trial court and are not involved in
 In Fairfax Hospital System, Inc. v. Curtis, 249
Va. 531, 537, 457 S.E.2d 66, 70 (1995), the proffered expert had
previously practiced as an attending physician in the defendant’s
specialty, but at the time of the alleged malpractice was the
"director of a helicopter transport service," an
activity which did not qualify as any type of clinical practice.