Virginia Injury Lawyers Blog
In Virginia medical malpractice cases, the issues presented to the jury are often of a complex nature that may be beyond the understanding of the average juror. For that reason, Virginia lawmakers passed Virginia Code section 8.02-20.1, which outlines when expert witness testimony is required.
The idea is that in cases in which there are complex issues beyond the understanding of the average juror, an expert in the field can view the facts and present their opinion. Unlike the opinion of lay witnesses, an expert’s opinion can be used by the jury as substantive evidence.
Under section 8.02-20.1, an affidavit of support from a qualifying expert is required in all medical malpractice cases. However, “if the alleged act of negligence clearly lies within the range of the jury’s common knowledge and experience,” an expert is not needed. This leaves two questions for prospective medical malpractice plaintiffs. First, is a claim truly one of medical malpractice? And second, if it is a medical malpractice claim, are the issues presented within the range of a jury’s common knowledge? A recent appellate opinion wrestles with these issues.
The Facts of the Case
The plaintiff was the representative of a nursing home resident who was found on the floor of his bathroom, suffering from a serious laceration to his head. The resident suffered from advanced dementia and was supposed to have been restrained to his bed when he was not supervised by nursing home staff. The plaintiff made several claims, arguing that the nursing home was negligent in failing to supervise, restrain, or medicate the resident.
The plaintiff failed to obtain an affidavit in support of her petition, however. Thus, the nursing home asked the court to dismiss the plaintiff’s case because it failed to comply with the procedural requirements. The plaintiff argued that her case was not one of medical malpractice but instead one of traditional theories of negligence. In the alternative, the plaintiff claimed that even if her claim was based on a medical malpractice theory, the issues presented were within the common understanding of the jurors.
The court disagreed and dismissed the plaintiff’s case. The court held that the claim arose in the course of the defendant providing medical care to the resident, and thus it was properly classified as a medical malpractice case. The court then went on to explain that by claiming that the doctors and nurses in the nursing home failed to do what reasonable medical professionals would have done in that same situation, the plaintiff needed to present some expert testimony to explain to the jury what exactly that duty was. Without such testimony, there was no evidence showing that the defendant nursing home violated any duty it may have owed to the resident. As a result, the plaintiff’s case was dismissed.
Have You Been Injured Due to an Act of Medical Malpractice?
If you or a loved one has recently been provided with what you believe to have been negligent medical care, you may be entitled to monetary compensation through a Virginia medical malpractice lawsuit. At the law offices of The Schupak Law Firm, we represent victims and their families in all types of Virginia medical malpractice cases. With our experience and skill behind you, you can rest assured your case is in good hands. Call 703-491-7070 to schedule a free consultation with a dedicated Virginia medical malpractice attorney today.
See More Blog Posts:
Virginia Supreme Court Finds Plaintiffs Were Too Late in Amending Complaint, Virginia Injury Lawyers Blog, January 17, 2018.
Court Applies the “Continuing Storm Doctrine,” Dismissing Slip-and-Fall Plaintiff’s Case, Virginia Injury Lawyers Blog, February 1, 2018.