Todd v. EDWIN L. WILLIAMS, II, MD, LTD.

409 S.E.2d 450, 242 Va. 178, 8 Va. Law Rep. 937, 1991 Va. LEXIS 123
CourtSupreme Court of Virginia
DecidedSeptember 20, 1991
DocketRecord 901665
StatusPublished
Cited by16 cases

This text of 409 S.E.2d 450 (Todd v. EDWIN L. WILLIAMS, II, MD, LTD.) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Todd v. EDWIN L. WILLIAMS, II, MD, LTD., 409 S.E.2d 450, 242 Va. 178, 8 Va. Law Rep. 937, 1991 Va. LEXIS 123 (Va. 1991).

Opinion

JUSTICE RUSSELL

delivered the opinion of the Court.

This appeal arises from a judgment in favor of the defendants in a medical malpractice case. It presents three questions concerning the application of the hearsay rule to expert testimony.

*180 Colleen Mills was 13 years old in 1984 when she was diagnosed as suffering from Hodgkin’s disease. She was admitted to Roanoke Memorial Hospital on April 23 of that year to undergo a staging laparotomy which included a splenectomy. Her surgeon, Dr. Edwin L. Williams, II, was of opinion that she had a 95% chance of complete recovery from Hodgkin’s disease after the surgery. Colleen’s postoperative course seemed uneventful, but on April 30, the day she was scheduled for discharge from the hospital, Colleen collapsed and suddenly died. Although her mother would not authorize an autopsy at the time, the cause of Colleen’s death was thought to be a massive pulmonary embolus.

Margaret Todd, Colleen’s mother, brought this medical malpractice action against Dr. Williams and his professional corporation on August 4, 1989. The case was tried to a jury on June 20 and 21, 1990, ending in a defendants’ verdict. The court denied Mrs. Todd’s post-trial motions and entered final judgment on the verdict on September 13, 1990. We granted Mrs. Todd an appeal.

I. OPINIONS OF OTHER PHYSICIANS

The plaintiff’s theory was that Dr. Williams had departed from the applicable standard of care by failing to obtain a platelet count from Colleen’s blood after the surgery. The plaintiff’s expert witness, Dr. Alfred S. Gervin, testified that a platelet count, if ordered, almost certainly would have revealed such a high level of platelets in Colleen’s blood as to require Dr. Williams to administer anticoagulants immediately, and that such anticoagulants would have prevented the formation of the fatal embolus.

Dr. Jack R. Hutcheson, Jr., an expert witness for the defendants, testified that in cases such as Colleen’s, numerical platelet counts are not particularly revealing. Over the plaintiff’s objection, Dr. Hutcheson testified,

I have also posed that question to some other national authorities in this particular field .... I spoke with Dr. Wendell Ross at Duke and I spoke with Dr. William, Bell at [Johns] Hopkins about this. Their feeling is much like mine, that normal platelets are different from the platelets in the myeloproliferative disorders . . . .”

The court overruled the plaintiff’s objection to this testimony, remarking that the witness was “offered as an expert.” Neither of *181 the two physicians to whom Dr. Hutcheson referred was present at trial.

Mrs. Todd argues on appeal that Dr. Hutcheson’s recital of the confirming opinions of two absent physicians was inadmissible hearsay, citing our decision in McMunn v. Tatum, 237 Va. 558, 379 S.E.2d 908 (1989). We agree. In McMunn, we held that although Code § 8.01-401.1 authorizes the admission into evidence of an expert’s opinion that may be based in whole or in part on inadmissible hearsay, the statute does not authorize the admission of any hearsay opinion on which the expert’s opinion was based. We observed:

The admission of hearsay expert opinion without the testing safeguard of cross-examination is fraught with overwhelming unfairness to the opposing party. No litigant in our judicial system is required to contend with the opinions of absent “experts” whose qualifications have not been established to the satisfaction of the court, whose demeanor cannot be observed by the trier of fact, and whose pronouncements are immune from cross-examination.

Id. at 556, 379 S.E.2d at 912.

Dr. Williams argues that admission of the hearsay was, at most, harmless error because (1) the hearsay merely confirmed the opinion of Dr. Hutcheson, which was subject to the test of cross-examination, and, therefore, the hearsay added nothing new to the case, and (2) the hearsay was admitted on an issue upon which there was little disagreement among the plaintiffs and the defendants’ experts, and therefore could not prejudice the plaintiff.

We cannot accept Dr. Williams’ characterization of the hearsay as harmless. Our review of the record discloses a substantial disagreement between the plaintiffs and the defendants’ experts on the question whether a postoperative platelet count would have shown the need for anticoagulant therapy to forestall the clotting of the blood. More to the point, however, was the nature of the trial as a classic battle of experts. The controlling issue at trial was that of the credibility of expert witnesses whose opinions were conflicting. The jury’s task was to determine which opinion was more worthy of credit and to give credit accordingly. The court’s ruling permitted Dr. Hutcheson to bolster his opinion with the news that two absent “national authorities” from prestigious *182 medical centers agreed with him. That ruling suffered from the same infirmities as those pointed out in McMunn.

II. TRENDS IN MEDICAL LITERATURE

An additional expert witness for the defense was Dr. Rome H. Walker. On his direct examination, defense counsel referred to two articles which had been discussed by Drs. Gervin and Hutcheson, the experts who had testified earlier. Dr. Walker’s direct examination continued as follows:

Q Were these the only two articles that you found in your search?

A No, we found a number of other articles which I did not necessarily reproduce. They were on the literature search provided by the librarian.

Out of the articles that were produced for the last ten years, there were certainly, all of the articles showed a trend toward the fact that platelet counts did not necessarily —

[PLAINTIFF’S COUNSEL]: I respectfully object to his referring to other articles.

THE COURT: This is the basis of his opinion, overruled. The opinion relates to 1984, however.

[DEFENSE COUNSEL]:

Q You can continue.

A The trend of all the articles was that the platelet count does not necessarily predict which patients will develop thrombotic problems down the road in patients who do not have myeloproliferative disorders. The literature strongly supported that.

Mrs. Todd argues on appeal that the court’s ruling was erroneous, citing Hopkins v. Gromovsky, 198 Va. 389, 94 S.E.2d 190 (1956). We agree. In Hopkins, we held that it was proper to cross-examine an expert witness to test his knowledge and accuracy by reading excerpts from scientific articles, which the expert *183 recognizes as standard and authoritative in his field, and to ask him whether he agrees with what has been read.

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Bluebook (online)
409 S.E.2d 450, 242 Va. 178, 8 Va. Law Rep. 937, 1991 Va. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/todd-v-edwin-l-williams-ii-md-ltd-va-1991.