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Doctor may testify as expert in wrongful death suit

Where a doctor had maintained an active clinical presence in the defendant’s specialty, and had performed the contested procedure in the past, he satisfied the active clinical practice requirement to be qualified as an expert witness in Virginia.


This suit involves the quality of medical care a detainee, Robert Boley, received while experiencing chest pains that ultimately resulted in his death. The two major questions are (1) whether Dr. Alvin Harris exercised the appropriate standard of medical care after learning that Boley was complaining of chest pain and (2) whether Boley contacted Arleathia Peck LPN regarding his chest pains on the night of April 16, 2019.

Defendants sought to exclude the testimony of Dr. William Bethea for failing to meet the active clinical practice requirement under Virginia law. They also sought to exclude the testimony of Lisa Shawler RN and Lori Roscoe RN regarding Peck’s purported treatment and care of Boley for being based on speculation and assumptions.

The magistrate judge denied their motion. Now before the court is defendants’ motion to set aside that decision.

Dr. Bethea

The Virginia Code provides that “[a] witness shall be qualified to testify as an expert on the standard of care if,” among other things “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 the action.” The provisions of § 8.01-581.20(A) require the expert witness to have had an active clinical practice in a related field within one year of the alleged negligence but require the expert to have performed the actual procedure only “at some point” to prove that the witness’s specialty is related to the defendant’s specialty.

Dr. Bethea has maintained an active clinical presence in defendant Dr. Harris’s specialty – internal medicine. Whether the procedure in question is defined as “assessment of acute or potentially emergent chest pain” or assessing whether chest pain indicates an emergent condition, Dr. Bethea has performed the procedure at some point in his career. Therefore, Dr. Bethea meets the active clinical practice requirement.

The magistrate judge found that Dr. Bethea “performed the same medical procedure at issue with respect to the Decedent within one year of April 16, 2019.” Defendants contend that the magistrate judge should have defined the procedure as the “assessment of acute or potentially emergent chest pain.” But the procedure that defendants assert is at issue never appears in the complaint.

After reading the complaint in its entirety, the magistrate judge could have reasonably found that the procedure at issue was the “determin[ation] [of] whether the chest pain indicates an emergent condition … or is ‘otherwise,’” which is what the plaintiff now asserts is the procedure at issue. Medical literature supports the magistrate judge’s finding. Additionally, the case law does not support defendants’ contention that the court should define the procedure in question so narrowly as to preclude Dr. Bethea’s clinical experience in diagnosing chest pain.

Defendants’ next two sub-arguments – that the magistrate judge’s opinion overstates portions of Dr. Bethea’s deposition testimony and is based on an overly broad interpretation of the clinical practice requirement – both rely on the court using defendants’ narrow definition of the procedure in question. As the court has declined to do so, it will not set aside the magistrate judge’s decision to deny defendants’ motion to exclude Dr. Bethea’s testimony.

RNs Roscoe and Shawler

The magistrate judge reasonably concluded that the admissibility of Shawler’s and Roscoe’s opinions on whether Peck was involved with the decedent’s care on the day he died was conditioned on whether the court found that there was a genuine issue of material fact regarding whether Peck actually saw the decedent on that day.

Defendants’ motion to set aside denied.

Boley v. Armor Correctional Health Services Inc., Case No. 2:21-cv-197, Nov. 14, 2022. EDVA at Norfolk (Young). VLW 022-3-515. 10 pp.