September 16, 2019

The Supreme Court of Virginia, in its opinion filed on August 29, 2019, upheld an $800,000 jury verdict in a cosmetic medical malpractice case in which the plaintiff claimed that the defendant performed a blepharoplasty procedure on her (i.e., a cosmetic procedure performed to remove puffiness, or excess skin and fat, from the upper eyelids), resulting in permanent injury to the right levator muscle and leaving her functionally blind in her right eye.

The defendant alleged on appeal that the circuit court erred in denying his motion in limine and in permitting the plaintiff’s Virginia medical malpractice lawyer to cross-examine the defense medical expert regarding matters that were the subject of a disciplinary proceeding against the defense expert. The Virginia Board of Medicine had issued a Consent Order that outlined the Board’s findings of fact and conclusions of law with regard to certain instances in which the defense expert violated the Virginia laws and regulations concerning his medical practice in Virginia that occurred in connection with his deployment to Afghanistan.

During the trial, the defendant’s lawyer asked the defense expert about his education, training, licensing, board certification, honors, awards, and teaching and practice experience. The defense expert described his practice during military deployment, the number of his deployments, his treatment of combat injuries, and major reconstructions following combat type injuries. In reliance on his background, knowledge, and experience, the defense expert rendered several opinions, including that the defendant complied with the standard of care.

During cross examination of the defense expert, the plaintiff’s lawyer, without expressly referring to the Consent Order, asked the defense expert whether during his deployment to Afghanistan, certain facts regarding his medical practice in Virginia were true. The plaintiff’s lawyer also asked the defense expert to agree that he “had an opportunity to either admit or deny these allegations in an administrative hearing and [he] chose to not deny these allegations.” On redirect, the defense expert addressed the matters raised by the plaintiff’s lawyer and explained the circumstances surrounding his deployment, the placement of his patients, and the status of his Virginia medical practice during his deployment.

The Supreme Court of Virginia held: “We conclude the circuit court did not abuse its discretion in determining that this evidence was relevant to the jury in determining the weight accorded to [the defense expert’s] opinions and in permitting the cross-examination of [the defense expert] on these matters,” explaining: “[The defense expert] rendered expert opinions regarding the standard of care in Virginia based on his background, knowledge and experience and provided the jury with a detailed account of his medical practice history including his military experience and numerous deployments. [The defense expert] agreed that his opinions were based on how he would expect a reasonably prudent surgeon to practice in Virginia, that all doctors practicing in Virginia should practice within that standard, and that practicing within the standard of care would include complying with state laws concerning the practice of medicine and regulations of the board of medicine. Therefore, evidence of [the defense expert’s] adherence to the standard of care in Virginia and the laws governing his practice was relevant to the basis of his opinions and the weight to be accorded to his opinions by the jury.”

Source Gross v. Stuart, Record No. 180758.

If you or a loved one suffered harm as a result of cosmetic surgery in Virginia or in another U.S. state, you should promptly find a cosmetic surgery malpractice lawyer in Virginia or in your state who may investigate your cosmetic surgery malpractice claim for you and represent you or your loved one in a cosmetic surgery medical malpractice case, if appropriate.

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