Negligence- Court won’t limit expert testimony at alleged malpractice trial

Where both parties sought to exclude or limit the other side’s experts in advance of a trial alleging medical malpractice, the court denied all the motions.

Background

Larry K. Peyton is the executor of Rita C. Peyton, who expired following an aborted lung biopsy performed by a physician employed by Blue Ridge Radiology P.C. Plaintiff claims that the physician violated the standard of care in the performance of the procedure and the handling of complications which lead to his wife’s death. Blue Ridge responds that the physician did not violate the standard of care applicable to the procedure and that she would have survived had she been treated properly in the emergency department.

Blue Ridge has filed motions to exclude or limit the testimony of two of plaintiff’s expert witnesses: Dr. Bream and Dr. Fulton. Mr. Peyton has filed motions to exclude or limit the testimony of one of Blue Ridge’s expert witnesses: Dr. Mistretta.

Dr. Bream

Dr. Bream is an interventional radiologist whose testimony is offered to support the claim that Mrs. Peyton died as a result of the physician’s violations of the standard of care applicable to the biopsy procedure. Blue Ridge takes issue with the statement in Dr. Bream’s report that the emergency care Mrs. Peyton received after the biopsy was reasonable and appropriate.

Blue Ridge argues that because Dr. Bream is not an expert in emergency or critical care, he is not qualified to provide an opinion regarding the reasonableness or necessity of the emergency care that was provided to Mrs. Peyton. The plaintiff responds that Dr. Bream is not providing an opinion on the standard of care relevant to emergency and critical care. Rather, he argues that Dr. Bream was stating his opinion that it was medically necessary to transfer Mrs. Peyton to the emergency department for additional treatment given her condition.

Given the plaintiff’s stated intention to offer Dr. Bream’s opinion on emergency care to show that a radiologist would transfer someone in Mrs. Peyton’s condition to the emergency department, I find that Dr. Bream is not testifying outside his specialty.

Dr. Fulton

Dr. Fulton is an anesthesiologist and expresses in his report that the performing physician did not undertake appropriate airway management when he instructed Mrs. Peyton to sit up after she began coughing up blood. Blue Ridge argues that because Dr. Fulton is not a radiologist and does not perform CT-guided lung biopsies, he should not be permitted to render a standard of care opinion regarding the approach to airway management.

Mr. Peyton responds that Dr. Fulton is offering his standard of care opinions solely with regard to the physician’s post-biopsy treatment of the complications. Mr. Peyton argues that this treatment is separate from the biopsy procedure itself and is common to both interventional radiologists and anesthesiologists.

Because I find from the evidence presented that the management of the post-biopsy complications are sufficiently distinct from the biopsy procedure itself, I will deny Blue Ridge’s motion to exclude Dr. Fulton’s standard of care opinions. There is no indication that the standard of care applicable to pneumothorax, hemorrhage or hemoptysis is different if those complications emerged after a procedure performed by an interventional radiologist, rather than a physician of another specialty.

As an anesthesiologist, Dr. Fulton has knowledge of and experience with the relevant complications that emerge in surgical contexts. He is not disqualified because he does not perform CT-guided lung biopsies.

Dr. Mistretta

Mr. Peyton moves to exclude the causation opinions of Michael Mistretta, M.D., who opines that Mrs. Peyton’s death was caused by the emergency treatment she received, not the procedure performed. Mr. Peyton argues that these opinions are inadmissible because Mrs. Peyton would not have suffered the complications if not for the alleged malpractice. Mr. Peyton therefore claims that Mrs. Peyton’s death is an aggravation of the initial injuries the physician caused, making the alleged negligence of the emergency department irrelevant.

In general, “[w]hether the physician’s negligent acts cause a mere aggravation of the original injury or cause instead a separate and distinct injury should . . . be left to the determination of a jury, guided by ordinary principals of proximate cause.” Here, whether the allegedly negligent acts of the emergency department were foreseeable is not a question of law for me to determine. Further, I do not find that evidence regarding Mrs. Peyton’s treatment would unfairly prejudice or confuse the jury.

Plaintiff’s motions in limine to exclude or limit denied. Defendant’s motions in limine to exclude or limit denied.

Peyton v. Blue Ridge Radiology, P.C., Case No. 1:25-cv-00015, April 13, 2026. WDVA at Abingdon (Jones). VLW 026-3-173. 9 pp.

Full-Text Opinion

VLW 026-3-173
Virginia Lawyers Weekly