Summer 2018

Virginia Supreme Court Finds Expert’s “Process of Elimination” Opinion Lacking

The Virginia Supreme Court has overturned a jury verdict in a medical malpractice case based on the improper admission of expert testimony into evidence.  The Court’s April 13th unanimous decision in Toriash v. Lee, on appeal from the Fairfax County Circuit Court, will require the parties to try the case anew.  It is expected the court’s ruling will have an effect on all expert testimony going forward, particularly in cases requiring medical testimony.

In 2012, otolaryngologist Dr. James J. Lee performed outpatient tonsillectomy and adenoidectomy surgery on five-year-old Adam Traish, who suffered from severe obstructive sleep apnea.  After monitoring in the post-anesthesia care unit, Adam was discharged from the hospital.  Later that afternoon, Adam’s mother, Miriam Toraish, found him unresponsive and he was eventually pronounced dead at the hospital.

An autopsy concluded that the cause of death was “cardiac arrhythmia of unknown etiology.”  Adam’s mother instituted a medical malpractice action on behalf of his estate, alleging that Adam was at a high risk for post-operative respiratory complications and that Dr. Lee violated the standard of care by failing to monitor Adam overnight.

At trial, the defense called Dr. Simeon Boyd, a pediatric geneticist, as an expert on genetics and the cause of Adam’s death.   Over Plaintiff ’s objection, Dr. Boyd testified that Adam died of cardiac arrest due to Brugada syndrome, a rare hereditary disease.  When questioned on cross examination about the basis for his opinion, Dr. Boyd stated that in arriving at his conclusion he either excluded all likely causes of death himself or “relied on the expertise of people who are qualified to exclude them.”

On appeal, Plaintiff argued that Dr. Boyd was not qualified to testify definitively as to cause of death because the differential diagnosis was not based on adequate foundation.  The Virginia Supreme Court agreed.  The autopsy report on which Dr. Boyd partially relied did not rule out respiratory compromise as a cause of death, the Court held.  Similarly, the pulmonologist’s deposition that Dr. Boyd also cited for support was not taken until after Dr. Boyd rendered his findings.  In sum, the Court held that Dr. Boyd’s testimony was based on assumptions that were not in evidence and the trial court judge abused his discretion in allowing Dr. Boyd to testify as to the cause of death.

The holding in Toraish v. Lee affects not just medical malpractice claims, but all cases in which medical expert testimony is necessary to the prosecution or defense of the case.  In personal injury claims where causation of the injury is in dispute, parties should be aware that Virginia courts will take a stringent view of the foundation required for expert testimony, disallowing conclusions that appear to be based on assumptions rather than factual findings.