The Court of Appeals of Virginia affirmed the $1,750,000 Virginia medical malpractice verdict in favor of a man who had undergone an appendectomy but the surgeon failed to remove his entire appendix, thereby requiring further surgery. The Virginia appellate court rejected the Defendant’s argument that the trial court had committed error by excluding the testimony of one of its two standard of care experts.
Background Facts
Three days following his laparoscopic appendectomy at Inova Health Care Services (Inova), Plaintiff Gino Agostini returned to the hospital after experiencing pain and fever. A CT scan revealed that “4.7 cm of the distal inflamed appendix” remained in Agostini’s abdomen, and he underwent another surgery to remove it. Agostini then filed a medical malpractice suit against Inova, alleging that the surgeon negligently failed to “properly remove the entirety of [his] inflamed appendix.”
Prior to trial, Inova designated Dr. Herbert Chen and Dr. Brian Carmine to testify as experts. Dr. Chen was the Chief Surgeon at the University of Alabama and had been practicing medicine since 1992. Dr. Carmine was an attending surgeon at Boston Medical Center and had been practicing medicine since 2004. Inova designated both surgeons to testify as experts in the “standard of care, causation, and damages” applicable to the surgeon who performed Agostini’s appendectomy. The designations for both surgeons were nearly identical, with each set to testify generally about (1) the “medical topics relevant to the case”; (2) the nature of Agostini’s “presenting condition” prior to his appendectomy; (3) what Agostini’s surgeon did; (4) common complications in appendectomies; and (5) steps taken after Agostini’s readmission.
As expected, Inova moved to admit testimony from both experts at trial. Dr. Chen testified by de bene esse deposition as an expert in “the field of general surgery.” Dr. Chen opined that Agostini’s surgeon “did not breach the standard of care” when performing the appendectomy because the mere presence of an appendix is not a breach. He also explained that part of the appendix may separate on its own due to inflammation. After Dr. Chen testified, Inova moved to qualify Dr. Carmine as an expert, but Agostini objected to his qualifications “as an expert in the case.” Inova responded by introducing a letter from the Virginia Board of Medicine, stating that Dr. Carmine met the educational and examination requirements to hold a license to practice medicine and surgery in Virginia. The trial court concluded that the letter was insufficient to trigger the presumption of qualification for physicians licensed outside Virginia according to Code § 8.01-581.20 and sustained Agostini’s objection. When the trial court asked if there was “[a]nything further with this witness,” Inova responded, “Nothing, Your Honor.” The jury ultimately found in favor of Agostini, awarding him $1,750,000 in damages. Inova appealed.
The Court of Appeals of Virginia held: “Here, we hold that Dr. Carmine’s testimony would “not have affected the verdict.” Christian Scholars Network, 86 Va. App. at 622 (quoting Proffitt, 292 Va. at 642). To the contrary, the record reveals that Dr. Carmine’s testimony would have been merely cumulative of Dr. Chen’s. See King v. Cooley, 274 Va. 374, 380 (2007) (holding exclusion of expert testimony in a medical malpractice action harmless where the testimony “was merely cumulative of the other medical opinions given by the defendants’ other physician witnesses”). Both physicians were general surgeons licensed outside of Virginia, and both physicians were set to testify about the “standard of care, causation, and damages.” In fact, Inova’s designations for the two experts were nearly identical, with only minor differences in wording and presentation. Dr. Chen had 12 years more experience in medicine than Dr. Carmine, and neither one had “international recognition” as a “world authority” on appendectomies. See Black, 258 Va. at 446. And the mere fact that Dr. Chen testified by de bene esse deposition, whereas Dr. Carmine was to testify in person, does not change the cumulative nature of their testimony. For these reasons, we conclude that the exclusion of Dr. Carmine’s testimony would have had, at worst, “but slight effect” on the jury’s verdict. Shaw, 304 Va. at 234 (quoting Kilpatrick, 301 Va. at 216). Any resulting error therefore was harmless.”
Source Inova Health Care Services v. Agostini, Record No. 0295-25-4.
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