On January 16, 2019, the plaintiff filed a Virginia medical malpractice claim against Nurse Practitioner
Darlene Olive; her company, Working Well, LLC; her supervising doctor, Dr. James W. Ross; and Dr. Ross’s company, Virginia Industrial Medicine. The plaintiff alleged that the defendants’ negligence in treating a chemical burn on his left foot caused further injury and necessitated the amputations of his first and fifth toes, and that the defendants never obtained his informed consent.
One week after the plaintiff’s causation of damages expert was deposed, the expert notified the plaintiff’s lawyer that she was withdrawing from providing testimony in the case. The plaintiff’s attorney did not notify the defendants’ attorney regarding the expert’s withdrawal. It was only after the expert contacted the defense attorney by email that the defendants became aware that the the plaintiff no longer had a causation of damages expert. The defendants filed a motion for summary judgment, arguing the lack of causation of damages testimony doomed the plaintiff’s medical malpractice case from proceeding to trial. The defense subpoenaed the expert to testify during a court hearing regarding her withdrawal from the case, which the plaintiff’s attorney unsuccessfully attempted to preclude. The circuit court subsequently granted the motion for summary judgment, finding that the plaintiff could not present causation testimony at trial and therefore could not establish a prima facie case against the defendants. The plaintiff appealed.
The Court of Appeals of Virginia stated in its unpublished opinion dated August 20, 2024: “Generally, in a medical malpractice action, a plaintiff must present expert testimony to establish “the appropriate standard of care, a deviation from that standard, and that such deviation was the proximate cause of damages” … The issue presented at summary judgment was not whether appellant had experts that could testify as to the standard of care for one or more defendants, but whether he could present the necessary testimony that violation of those standards caused his resulting claimed damages. Thus, the issue of available proof of the standard of care is not dispositive, and the statute specifically forbade his nurse experts from testifying as to that causation element [Code § 8.01-401.2(B)(ii) states that a nurse practitioner cannot testify as an expert witness against “a defendant health care provider in a medical malpractice action regarding causation”].”
The Virginia appellate court held: “He failed to take necessary action in that time to account for Dr. Armstrong’s withdrawal, and only sought to do so after the circuit court heard testimony from the expert witness as to her trial availability, over appellant’s own objection. The circuit court has inherent authority to enforce discovery deadlines to promote “the efficient and orderly administration of justice,” and this Court finds no abuse in the exercise of such discretion here.”
Source Murphy v. Olive, Record No. 0865-23-2.
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