Speelman v. Schuler

4 Va. Cir. 304, 1985 Va. Cir. LEXIS 16

• Court: Newport News County Circuit Court
• Decided: June 5, 1985
• Docket: Case No. (Law) 8655-S
• Status: Published

Opinion

By JUDGE DOUGLAS M. SMITH

[O]n May 8, 198S, the Court heard a series of motions in connection with the above captioned cause, as well as, a companion cause, which said case was based on breach of warranty. The Court sustained the motion to dismiss this case on the said grounds and I believe an order has been entered disposing of that case. Consequently, in this case a motion for summary judgment was argued, with the allegations of the defendant being that the plaintiff has failed to produce the name and address of an expert witness. Plaintiff’s attorney, Mr. Smith, indicated that he intended to establish the standard of care in this medical malpractice case by calling to the stand Doctor Frank A. Schuler.

The Court requested that any authority on this point would be helpful in making this decision, and after having received Mr. Clarke's letter of May 9 and accompanying enclosures, I am of the opinion that the prevailing thought in Virginia is that the defendant health care provider cannot be called to establish a standard of care and then the Court or the jury [be requested to] find that the defendant violated that standard of care. I find it significant that three circuits have held this in effect and that writs to the Supreme Court have been denied.

I am, therefore, requesting Mr. Clarke [defendant's attorney] to prepare an order granting summary judgment to the defendant on the grounds that the plaintiff cannot produce an expert witness and further that the Court rules that the plaintiff cannot call the defendant doctor for the purpose of establishing a standard of care which he is supposed to have violated. I would further like language in the order that the Court has given the plaintiff every opportunity and many delays to attempt to obtain an expert witness and that this case should not be delayed further.