797 S.E.2d 760
Va.2017Background
- Five-year-old Adam Traish underwent outpatient tonsillectomy and adenoidectomy performed by Dr. James J. Lee for severe obstructive sleep apnea; he woke from anesthesia, was discharged, and died at home later that day.
- Autopsy by Dr. Jocelyn Posthumus listed cause of death as “cardiac arrhythmia of unknown etiology,” noting a genetic cause could not be ruled out given parents’ consanguinity and two predeceased siblings.
- Plaintiff (Mariam Toraish, administrator) sued Dr. Lee for malpractice, alleging he breached the standard of care by permitting outpatient surgery for a high-risk child and failing to order overnight monitoring.
- Defendant Dr. Lee testified as a lay witness that, had he known of the consanguineous marriage and sibling deaths, he would not have recommended outpatient surgery; the court allowed this testimony over plaintiff’s objection.
- Defendant offered Dr. Simeon Boyd, a pediatric geneticist, as an expert who diagnosed Brugada syndrome based on family history, records, autopsy, and genetic testing and opined to a high degree of certainty that Brugada caused Adam’s death; plaintiff objected that Boyd failed to adequately exclude postoperative respiratory compromise.
- The trial court admitted Boyd’s causation opinion; the jury found for defendants. On appeal, the Virginia Supreme Court reversed and remanded, holding Boyd’s differential-diagnosis opinion lacked an adequate factual foundation. The Court also considered whether Dr. Lee’s lay testimony improperly functioned as expert testimony and upheld its admission.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dr. Boyd’s expert causation opinion (Brugada as cause of death) had an adequate factual foundation | Boyd failed to exclude postoperative respiratory compromise and relied on assumptions unsupported by the record, so his differential diagnosis was inadmissible | Boyd relied on autopsy, toxicology, records, genetic testing, and standard multidisciplinary practice; his use of the autopsy report to exclude other causes was proper | Court reversed: Boyd’s differential diagnosis rested on an unestablished assumption because the autopsy did not rule out respiratory compromise and Boyd did not rely on any other admissible source that predated his opinion to exclude it; admission was an abuse of discretion |
| Whether Dr. Lee’s testimony as to what he would have done had he known family history was inadmissible expert testimony | Such testimony was effectively expert opinion on standard of care and should have been excluded | As a defendant, Dr. Lee could testify from personal knowledge about actions he took and what would have affected his treatment decision; this was factual lay testimony | Court affirmed: Dr. Lee’s statements were factual, based on personal knowledge/experience, and did not purport to define the professional standard of care |
Key Cases Cited
- Keesee v. Donigan, 259 Va. 157 (expert-admission standard and abuse-of-discretion review)
- Tittsworth v. Robinson, 252 Va. 151 (limitations on expert testimony foundation)
- Lawson v. Doe, 239 Va. 477 (expert testimony cannot rest on assumptions without evidentiary support)
- Norfolk S. Ry. v. Rogers, 270 Va. 468 (expert testimony founded on unsupported assumptions is inadmissible)
- Ford Motor Co. v. Bartholomew, 224 Va. 421 (differential diagnosis and possibility of alternate causes do not automatically render opinion unsupported)
- Smith v. Irving, 268 Va. 496 (treating/defendant physician may give factual testimony about treatment decisions without testifying as an expert)
- Manchester Oaks Homeowners Ass’n v. Batt, 284 Va. 409 (standards for abuse of discretion review)