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Affirmed: Think Twice Before Retaining An Expert Who Has Been Subject To Disciplinary Proceedings

November 14, 2019

Madelaine A. Kramer

Sands Anderson PC

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If you decide to retain an expert with a past disciplinary history, be prepared for that information to be used at trial to attack your expert’s credibility!  In Gross v. Stuart the Supreme Court of Virginia held that it was permissible and within the Circuit Court’s discretion to permit the cross-examination of a retained medical expert with information from the expert’s past disciplinary proceedings.

To distinguish this case from the many that will undoubtedly arise involving this issue in the future, Gross v. Stuart involved an expert retained by the defendant to opine as to the standard of care in a medical malpractice action.  The expert had previously entered into a Consent Order with the Virginia Board of Medicine related to his own practice of medicine and violation of certain regulations.

At the trial level, the Fairfax County Circuit Court held that information contained in a Consent Order the defendant’s expert had entered into with the Board of Medicine was relevant to the expert’s credibility and the weight of the expert’s opinions and, therefore, was proper evidence for use on cross-examination.  In affirming, the Supreme Court explained the Circuit Court did not abuse its discretion.  The expert rendered opinions regarding the standard of care in Virginia, and thus “evidence of [the expert’s] adherence to the standard of care in Virginia and the laws governing his practice was relevant to the basis of his opinions and the weight to be accorded to his opinions by the jury.”

While the Court’s rationale is sound under the facts and circumstances of this case, it will not be unexpected for the Supreme Court to fine-tune, expand, or elaborate on this holding in subsequent matters. 

There are numerous questions that arise regarding the reach of the Gross v. Stuart opinion:

• Is this decision limited to cases involving retained medical experts? Or will it apply to experts in other fields (i.e., attorney, accounting, engineering experts)?
• Is this decision limited to cases involving medical experts who offer testimony as to the standard of care? Or will it apply to any retained medical expert, regardless of the scope of their opinions (i.e., causation, damages)?
• Is this decision limited to a standard of care expert who was disciplined by the Virginia Board of Medicine? Or will it be permissible to cross-examine an expert who opines as to the standard of care applicable in Virginia with disciplinary proceedings or Board matters from other jurisdictions?
• In Gross v. Stuart the plaintiff did not expressly refer to the Consent Order during cross-examination, using only the information contained therein. Is it relevant or unduly prejudicial to expressly reference the Consent Order by name?
• In Gross v. Stuart the plaintiff did not refer to any sanctions received by the expert during cross-examination, instead focusing on the “Findings of Fact and “Conclusions of Law” set out in the Consent Order. “Findings of Fact” are facts as identified by the Board of Medicine from evidence presented at a hearing or as otherwise agreed to.  “Conclusions of Law” are determinations by the Board of Medicine about whether the healthcare provider violated a law or regulation.  Will a party be permitted to refer to sanctions imposed on the expert on cross-exam?
• In Gross v. Stuart the Circuit Court did not permit the plaintiff to specifically reference the Department of Health Professions during cross-examination, but this was not addressed by the Supreme Court. What is permissible?
• Is this decision limited to the use of information contained within a Consent Order issued by the Board of Medicine? Or will information from other documents, disciplinary proceedings or outcomes be permitted?

As Justices McCullough and Powell warn in their Concurring Opinion, trial courts should “exercise their broad discretion to restrict, where appropriate, the scope of this type of impeachment.”  Thus, it is anticipated we will begin to see a wide range of rulings from the Circuit Courts across the Commonwealth addressing the scope of expert cross-examination as a result of the Gross v. Stuart decision.

Madelaine Kramer is a member of Sands Anderson's Litigation and Healthcare groups, and focuses her practice on managing attorney malpractice, medical malpractice, and product liability defense litigation.