VA Board of Medicine & VA Department of Health Professions v. Leila Hadad Zackrison, M.D.
67 Va. App. 461
| Va. Ct. App. | 2017Background
- The Virginia Board of Medicine (Board) disciplined Dr. Leila Hadad Zackrison for alleged substandard treatment of a single patient (Patient A), finding violations of Code § 54.1-2915 based on diagnoses, extensive antibiotic use, and inadequate records. The Board imposed a reprimand and conditional probation with CME requirements.
- At a two-day administrative hearing, the Commonwealth presented two expert witnesses (an infectious disease specialist and a rheumatologist) who relied in part on IDSA Lyme disease guidelines; Dr. Zackrison testified in her own defense and submitted medical literature and a CV on discs.
- During her testimony, the Board sua sponte refused to recognize Dr. Zackrison as an expert because she was the respondent, though it accepted her credentials as a board-certified rheumatologist and allowed her to testify in her capacity as the respondent.
- Dr. Zackrison nonetheless called Dr. Richard Horowitz, a tick-borne disease expert, who testified for her; the Board found Horowitz’s testimony insufficient to rebut the Commonwealth’s experts and found violations.
- The circuit court vacated the Board’s order, concluding the Board’s refusal to allow Dr. Zackrison to testify as an expert violated her due process right to a meaningful opportunity to be heard. The Board appealed to the Court of Appeals of Virginia.
Issues
| Issue | Zackrison's Argument | Board's Argument | Held |
|---|---|---|---|
| Whether the Board may categorically refuse to accept a respondent as an expert witness | Board’s exclusion violated Virginia law allowing parties to testify on their own behalf; Dr. Z. sought to testify as expert | Board said a respondent cannot simultaneously be an expert; no statutory basis offered but asserted Board discretion | Board erred: Virginia permits a party to serve as own expert if otherwise qualified; categorical exclusion unsupported |
| Whether Dr. Zackrison was qualified to testify as an expert in rheumatology/standard of care | She has long-standing Virginia licensure, board certification in internal medicine and rheumatology, fellowship training, and extensive clinical experience | Board suggested qualification is within its discretion and may apply a standard; argued ultimate finding rebutted presumption | Dr. Z. was qualified under any reasonable standard the Board could adopt; exclusion was wrongful if based solely on respondent status |
| Whether the Board’s exclusion violated due process (deprived meaningful opportunity to be heard) | Exclusion prevented specific expert testimony she intended to offer and thus denied due process | Ruling was evidentiary: she was allowed to testify, present literature, and call experts, so no deprivation of the opportunity to be heard | Not a due process violation: exclusion was an erroneous evidentiary ruling but did not bar her from presenting her case |
| Whether the error was harmless absent a proffer of the excluded expert testimony | Dr. Z. argued prejudice from inability to present specific literature-correlated testimony | Board argued any omitted testimony would have been cumulative to Horowitz’s testimony and the submitted literature | Error harmless: Dr. Z. failed to proffer specifics of what additional expert testimony she would have given; appellate court cannot find prejudice without a proffer, so Board’s order reinstated |
Key Cases Cited
- State Farm Mut. Auto. Ins. Co. v. Kendrick, 254 Va. 206 (Supreme Court of Virginia) (physician plaintiff may testify as own expert under Code § 8.01-396)
- James v. City of Falls Church, 280 Va. 31 (Supreme Court of Virginia) (agency action is arbitrary and capricious when made without determining principle)
- Fitzgerald v. Commonwealth, 273 Va. 596 (Supreme Court of Virginia) (expert qualification requires sufficient knowledge, skill, or experience)
- Hladys v. Commonwealth, 235 Va. 145 (Supreme Court of Virginia) (minimum due process requirements for administrative hearings)
- Massey v. Commonwealth, 67 Va. App. 108 (Court of Appeals of Virginia) (proffer requirement for excluded testimony in appellate review)