News Stream

Board cannot exclude licensee from acting as own expert witness

The state medical board erred when it denied a physician the opportunity to testify as an expert witness in her own disciplinary proceeding, a Virginia appellate court ruled March 14. But the court nonetheless upheld the board's decision because the licensee had failed to provide the court with the substance of the testimony she would have offered.

(Virginia Board of Medicine v. Zackrison).

The board brought charges against rheumatologist Leila Zackrison in 2014, alleging that she diagnosed a patient as having Lyme disease without adequate support in the patient’s medical records. During her disciplinary trial, Zackrison attempted to testify as an expert on her own behalf, but the board rejected this attempt on the grounds that Zackrison was the respondent in the case and, therefore, could not testify as an expert.

Despite her non-certification as an expert in this case, Zackrison testified as to the standard of care in related cases and otherwise testified as an expert witness might. Following her testimony, another doctor testified as an expert on her behalf.

After the hearings, the board held that Zackrison’s treatment of the patient had fallen below the standard of care, specifically finding that the testimony of Zackrison’s admitted expert witness was not sufficient to overcome that of the board’s own expert witnesses. Zackrison’s license was placed on probation and she was required to complete additional continuing education courses. She appealed, and the case went to a state circuit court.

On appeal, Zackrison took issue with the board’s decision to deny her expert witness status, arguing that the decision denied her the constitutional due process right for “an opportunity to be heard in a meaningful manner.” The circuit court agreed with this reasoning and vacated the board’s discipline order. The board then appealed, and the case went up to a state Court of Appeals in Richmond.

Reviewing the case law, the Court of Appeals noted that the Virginia Supreme Court has actually specifically held that a physician may serve as their own expert witness, and thus that the board erred to the extent that it denied her expert witness status solely on the basis that she was the respondent.

However, the board, as an administrative agency, has its own standards for expert witness qualification. “Given the deference accorded to the Board under [the Virginia Administrative Process Act], the ultimate decision of what standard should be applied belongs to the Board,” wrote Judge Wesley Russell, Jr.

“It is free to adopt the traditional Virginia standard, the more stringent medical malpractice standard, or a lesser standard so long as the chosen standard is rational, is otherwise consistent with Virginia law, and provides determining principles . . . that can be applied consistently and that do not reduce the qualification decision to mere whim.”

Addressing the substance of Zackrison’s qualifications to act as an expert witness, the court noted an extensive and compelling list of her qualifications, and Judge Russell wrote that “although the Board ultimately can choose the standard to apply, we can conclude from this record that Dr. Zackrison was qualified to provide expert testimony on the practice of rheumatology under any reasonable standard the Board could adopt.” The board, therefore, had erred when it denied her the opportunity to testify as an expert witness.

And, although the board argued that its ultimate decision that Zackrison’s actions fell below the accepted standard of conduct meant that it could conclude that she was not a competent expert, the court rejected this reasoning. “The Board confuses a question of qualification with conduct,” wrote Judge Russell.

The existence of experience to support expert witness status to testify as to the standard of care does not mean that the witness will always meet that standard in his or her own practice, he noted. And, because a decision as to whether Zackrison should be qualified as an expert had to be made before the board made its decision to discipline her, that final decision was irrelevant to the question of expert witness qualification.

Despite the board’s error, the court held that the decision had not violated Zackrison’s due process rights. Zackrison had still been able to present technical testimony to the board on the standard of care, and did not appear to have been prevented from offering any relevant testimony.

“As such, the Board’s refusal to categorize Dr. Zackrison as an expert was not a bar on her ability to present one’s own evidence . . . but rather, was merely an erroneous evidentiary ruling.” Zackrison had received her opportunity to be heard, and thus the board’s decision did not violate her due process rights.

Additionally, unfortunately for Zackrison, in order for improperly excluded testimony to cause the board’s decision to be vacated, a court must evaluate the testimony that would have been offered. This requires that the party denied the opportunity to provide the testimony proffer its substance to the court in its filings, but Zackrison did not provide that testimonial substance.

“We do not know whether her testimony simply would have recited the literature, which had been admitted into evidence already, or done something more. We do not know how her citations to the literature would have differed from the references she was allowed to make or from [her admitted expert’s] repeated references to the literature in support of his opinion that Dr. Zackrison’s care and treatment . . was appropriate,” wrote Judge Russell.

Without the specifics of her potential testimony, the court was unable to rule on whether the board’s error prejudiced Zackrison’s defense, and it upheld the decision of the board to discipline her.