Personal Injury Lawyer

Several cases from the Virginia Supreme Court have held that treating physicians may testify regarding their impressions and conclusions formed while treating a patient, that deviations from the medical records does not render testimony inadmissible, and that only testimony constituting a diagnosis must be stated to a reasonable degree of medical probability, as a medical malpractice lawyer, such as from The Law Offices of Ryan Quinn, PLLC, can explain.  

In Pettus v. Gottfried, 269 Va. 69 (2005), the Virginia Supreme Court held admissible under Code § 8.01-399 a treating cardiologist’s testimony that a patient’s change in mental status “could have been” a central nervous system problem. Id. at 77-78. Although the cardiologist’s statement was not rendered within a reasonable degree of medical probability, the court held that the testimony was admissible because it did not constitute a diagnosis. Id. at 78.  The court characterized the testimony as “factual in nature,” and determined that the testimony merely explained the physician’s impressions and conclusions formed while treating the patient.  Id. at 77-78.  The court also disagreed with the contention that the cardiologist’s testimony was inadmissible since it deviated from the entries in the medical records.  The court held that since the medical records mentioned the possibility of a central nervous system embolic event, any distinction to be drawn between the written entry and the cardiologist’s testimony did not affect the admissibility but was a proper subject for cross examination.  Id. at 78.

Similarly, in Holmes v. Levine, 273 Va. 150 (2007), a medical malpractice case against a radiologist, the Virginia Supreme Court considered the medical testimony of a treating urologist to determine whether that testimony involved the rendering of a diagnosis.  Id.  At issue were the portions of § 8.01-399 referring to “diagnoses, signs and symptoms, observations, evaluations, histories, or treatment plan” that are “contemporaneously documented during the course of the practitioner’s treatment” and the requirement that a diagnosis must be “offered to a reasonable degree of medical probability” in order for it to be admissible at trial.  In Holmes, the urinalysis report indicated a “trace” of blood in the plaintiff’s urine.  Id. at 163.  In testimony later elicited by defense counsel, the urologist testified that she “did not think that an occasional red blood cell would qualify for microscopic hematuria.” Id. at 157.  The court held that this statement was not a medical diagnosis but was merely the urologist’s “impression,” formed during the plaintiff’s treatment, and was not her present medical expert opinion about the clinical significance of the results of the urinalysis.  Id. at 162.  The court also found that any distinction between the documentation in plaintiff’s medical records and the urologist’s testimony “did not affect the admissibility of the testimony but was a proper subject for cross-examination of the witness.”  Id. at 163.

And, in Graham v. Cook, 278 Va. 233 (2009), the Virginia Supreme Court considered the challenged testimony of Graham’s two radiologists.  Id. at 244.  At issue were statements that there was a “possibility of avascular necrosis,” that “avascular necrosis cannot be excluded,” that there was a “suspicion for avascular necrosis,” and a bony defect suggested a “fracture and avascular necrosis.”  Id.  The Court concluded that the challenged statements were factual in nature and related the physicians’ impressions and conclusions formed when treating plaintiff.  The court found that as factual impressions formed during these doctors’ treatment of plaintiff, the challenged findings were analogous to the statement from the treating cardiologist in Pettus that the patient’s change in mental status “could have been” a central nervous system problem, and the statement from the treating urologist in Holmes that she “did not think that an occasional red blood cell would qualify for microscopic hematuria.” Id. at 244-45.  The court further found that statements did not constitute diagnoses because they did not purport to identify specifically the cause of plaintiff’s health condition based on his signs and symptoms.  Id. at 245.  Therefore, because the statements did not impart a diagnosis, the statements were admissible under Code § 8.01-399(B), regardless of whether they were stated within a reasonable degree of medical probability.  Id.

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