Medical Malpractice

Expert Witness Requirements for Virginia Medical Malpractice Lawsuits

By David Goguen, J.D., University of San Francisco School of Law
Find out who is qualified to testify as an expert witness in a medical malpractice lawsuit in Virginia, and how the "standard of care" is defined for these kinds of cases.

Like most states, Virginia has enacted a number of laws and procedural rules that must be followed by anyone who wants to file a medical malpractice lawsuit in the state's court system.

These measures have been put in place in part as a response to tort reform efforts, which seek to discourage the filing of meritless lawsuits, especially those brought against health care providers.

In Virginia, one of the most important of these requirements has to do with the qualifications for expert witnesses whose testimony might be relied on in a medical malpractice lawsuit, either to establish the applicable "standard of care" against which the health care provider's conduct will be measured, and/or to prove that the health care provider fell short of meeting that standard when treating the patient. It's important to understand this rule because, in the majority of medical malpractice cases, the plaintiff (the person who is suing a health care provider) will be relying on an expert witness's testimony to prove these and other key aspects of the case. (More: How Do I Prove Medical Malpractice?) And the defendant health care provider will almost always try to refute the plaintiff's allegations with his or her own chosen experts.

Expert Witness Qualifications for Virginia Medical Malpractice Lawsuits

Code of Virginia Section 8.01-581.20 defines who may testify as an expert on the "standard or care" in a medical malpractice lawsuit, declaring that such a witness qualifies if he or she:

  • has, within one year of the date on which the alleged malpractice occurred, had "active clinical practice" in the same specialty or a related field of medicine as that in which the defendant health care provider practices, and
  • can demonstrate "expert knowledge of the standards" of the specialty or field in which the defendant health care provider practices, and
  • can also show "expert knowledge" of the kinds of conduct that conforms with (and fails to meet) those standards.

This code section also specifies that, unless "good cause" is shown to the court, neither the plaintiff nor any defendant health care provider may designate, identify, or call to testify at trial more than two expert witnesses "per medical discipline on any issue presented." But there is usually no limit on the number of "treating health care providers" (meaning they treated the plaintiff) who can be called.

Setting the "Standard of Care" in Virginia Medical Malpractice Cases

Section 8.01-581.20 also lays out the "standard of care" against which a defendant health care provider's actions (or inaction, as the case may be) will be measured in any medical malpractice lawsuit filed in the Commonwealth of Virginia, defining this standard as "that degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in this Commonwealth.")

And the statute goes on to make clear that any health care provider licensed to practice in Virginia -- and any health care provider licensed in another state who otherwise meets the requirements for practicing in Virginia -- is presumed to know the applicable standard of care for his or her specialty or field of practice.

Getting More Information, and Getting Help

For details on two more key procedural hoops that Virginia medical malpractice plaintiffs must jump through, see our companion articles What is the Statute of Limitations for Medical Malpractice Lawsuits in Virginia? and The 'Certification of Expert' Requirement for Virginia Medical Malpractice Lawsuits.

And if you've got questions about filing a medical malpractice lawsuit in Virginia, an experienced attorney will have the answers. Learn more about Choosing the Right Medical Malpractice Lawyer.

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