Sunday, November 07, 2004

Med mal panelists cannot be retained experts

In Chandler v. Graffeo, the Virginia Supreme Court in an opinion by Senior Justice Stephenson held, among other things, that experts who serve on a Medical Malpractice Review panel cannot then be retained as experts to testify in the subsequent trial of the case.

Justice Stephenson explained: "We find nothing in the statutory scheme respecting a panel's procedures that gives either party the right to retain an impartial panel member as an expert. In addition, we think that the impartiality required by Code 8.01-581.3 must remain through the conclusion of the trial. Indeed, impartiality would become an impossibility if either party were permitted to retain panel members as experts because no potential panel member would be without any anticipation concerning future consultation regarding the claimant or his family. Moreover, the panel members' appointment to and service on the panel would tend to clothe the expert, in the jury's view, with superior qualifications and greater credibility. We hold, therefore, that the trial court erred in
permitting the Panel members to testify as the Defendants' retained experts. Their testimony violated the intent and spirit of the statutory scheme; i.e., the impartiality of the Panel proceeding."

On this point, Justice Agee, joined by Justice Keenan dissented. Justice Agee concluded: "Nothing in the statutory scheme prohibits the additional step, should a party chose to do so, of retaining a Panel member as an expert witness to testify at trial on matters beyond the Panel opinion, once that opinion has been rendered."

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