Excerpts from the opinion in Webb v. Smith, 276 Va. 305, 661 S.E.2d 457 (2008)



Record No. 071008
Decided: June 6, 2008

Present: Hassell, C.J., Keenan, Koontz, Kinser,
Lemons, and Agee, JJ., and Stephenson, S.J.

    Appeal from a judgment of the Circuit Court of the City of Petersburg. Hon. Pamela S. Baskervill, judge presiding.

Reversed and final judgment.

  SENIOR JUSTICE STEPHENSON delivered the opinion of the Court.

    In this appeal, we determine whether, under the special facts and circumstances of this medical malpractice action, the plaintiff was required to present expert testimony on the issue of causation.


    Tamela H. Webb filed an action against Charles William Smith, III, M.D., alleging medical malpractice by Dr. Smith for negligently performing surgery on her, which caused Webb to undergo a subsequent surgery and incur damages attendant thereto. At the conclusion of Webb's case-in-chief and at the conclusion of all the evidence, Dr. Smith moved the court to strike Webb's evidence on the ground that Webb had not presented expert testimony on the issue of causation. The trial court took the motions under advisement and submitted the case to the jury.

    The jury returned its verdict in favor of Webb in the amount of $75,000, with interest on $25,520.06 from August 30, 2004, until paid. Following the verdict, the trial court considered Dr. Smith's motion to strike Webb's evidence. Upon the parties' post-trial briefs, the court sustained Dr. Smith's motion and entered judgment in his favor. We awarded Webb this appeal.


    For years, Webb had suffered pain associated with her menstrual cycle. She had been advised by her long-time physician that she “might need” to undergo a bilateral salpingo oophorectomy (BSO). Webb decided to undergo the BSO together with a hysterectomy, and she went to Dr. Smith for the surgery. Dr. Smith agreed to perform both procedures in a single surgery. Dr. Smith performed the hysterectomy, but he forgot to perform the BSO.

    At trial, Webb presented an expert witness who testified about the relevant standard of care for a doctor engaged in Dr. Smith's field of practice. The expert witness also testified that Dr. Smith had breached the standard of care by agreeing and obtaining consent to perform the two procedures in one surgery, but failing to do so. The expert witness did not offer any testimony regarding causation.

    Webb testified that, due to Dr. Smith's negligence in performing only one procedure, she had to undergo a second surgery and endure a second round of trauma, associated pain and suffering, and mental anguish.


    Webb contends that the verdict was improperly set aside because the present case presents one of the rare instances in which expert testimony was not necessary or appropriate. Webb asserts that “[n]o specialized training was necessary for a juror to understand that when [Dr.] Smith neglected to perform the surgery he had agreed to perform, [she] would necessarily have to find another physician to finish what [Dr.] Smith had started, but failed to finish.” Webb testified that Dr. Smith told her he had forgotten to perform the second procedure. Webb asserts that, as with forgetting to remove a sponge or scalpel from a patient's body during surgery, her damages for Dr. Smith's forgetting to perform the second procedure “are evident to any normal person” and are the direct and proximate result of Dr. Smith's negligence. Therefore, Webb concludes, the jury did not need expert testimony to find, as it did, that she desired to have her ovaries removed, that Dr. Smith agreed to perform the procedure together with a hysterectomy, that Dr. Smith negligently failed to [Page 308] perform the procedure, and that Dr. Smith's negligence was the proximate cause of her having to undergo a second surgery.

    Dr. Smith contends that Webb, because she brought a tort action for medical malpractice and not a breach-of-contract action, was required to establish the necessary elements of a medical malpractice action, which she failed to do. Dr. Smith observes that, in medical malpractice actions, expert testimony is ordinarily required to establish the necessary elements, including causation, and he contends that the present case is no exception.


    [1-2] We have said that, in medical malpractice cases, “expert testimony is ordinarily necessary to establish the appropriate standard of care, to establish a deviation from the standard, and to establish that such a deviation was the proximate cause of the claimed damages.” Raines v. Lutz, 231 Va. 110, 113, 341 S.E.2d 194, 196 (1986); accord Bly v. Rhoads, 216 Va. 645, 653, 222 S.E.2d 783, 789 (1976). Exceptions to this rule exist only in “those rare cases in which a health care provider's act or omission is clearly negligent within the common knowledge of laymen.” Raines, 231 Va. at 113, n.2, 341 S.E.2d at 196, n.2; see, e.g., Coston v. Bio-Medical Applications of Va., Inc., 275 Va. 1, 5, 654 S.E.2d 560, 562 (2008) (plaintiff placed in defective chair by health care provider); Easterling v. Walton, 208 Va. 214, 218, 156 S.E.2d 787, 790-91 (1967) (foreign object left in patient's body by surgeon).

    [3] We conclude that the present case presents one of those “rare cases” in which expert testimony is not necessary to establish that Dr. Smith's deviation from the standard of care was the proximate cause of Webb's damages. As a result of Dr. Smith's failure to perform the BSO, Webb had to undergo the second surgery and incur damages attendant thereto. A reasonably intelligent juror did not need an expert to explain why Dr. Smith's negligence was the proximate cause of Webb's damages because the issue of causation was within the common knowledge of laymen.


    Accordingly, we will reverse the trial court's judgment, reinstate the jury's verdict, and enter judgment in favor of Webb.

Reversed and final judgment. [Page 309]

Ben Glass
Connect with me
Ben Glass is a nationally recognized Virginia injury, medical malpractice, and long-term disability attorney