In Virginia, a nursing assistant molested and raped an 85-year-old resident at a nursing home. The administrator of the resident’s estate brought suit the nursing assistant and the nursing home, and the jury returned a verdict against both defendants.
On appeal, the nursing home argued, inter alia, that the trial court made erroneous evidentiary rulings on the admissibility of expert testimony.
The trial court excluded testimony from a licensed nursing-home administrator who Nursing Home had offered “as an expert in standard of care for skilled nursing facilities in relation to employment issues and dealing with staff care issues and training, and those matters.” The trial court found that the expert didn’t have an “active clinical practice” as required by Virginia Code § 8.01-581.20(A) because supervising and administering a nursing home doesn’t constitute a clinical practice.
In addition, the trial court refused to exclude testimony by the Estate’s expert to the effect that Nursing Assistant‘s actions had violated the standard of care governing nursing assistants. Nursing Home argued that the expert shouldn’t be allowed to testify on such matters because they were within the common knowledge of the jury. The court held that the proposed testimony was within the jurors’ common knowledge but nonetheless held that the expert would be allowed to testify on these matters.
Nursing Home challenged these evidentiary rulings: (i) the trial court’s decision to preclude its standard-of-care expert, a licensed nursing-home administrator, from testifying because he didn’t have an “active clinical practice” required by Code § 8.01-581.20(A); and (ii) the trial court’s decision to admit testimony from the Estate’s expert regarding the nursing assistant’s conduct constituting a breach of the standard of care.
Judge D. Arthur Kelsey of the Virginia Supreme Court explained in his opinion that, while the court “generally review[s] evidentiary rulings under an abuse of discretion standard,” when the admissibility of testimony is contingent on the interpretation of a statute, the question is one of law that we review de novo.
In particular, Nursing Home claimed that the trial court erroneously interpreted and applied Code § 8.01-581.20(A), which states, in relevant part:
A witness shall be qualified to testify as an expert on the standard of care if he demonstrates expert knowledge of the standards of the defendant’s specialty and of what conduct conforms or fails to conform to those standards and if he has had active clinical practice in either the defendant’s specialty or a related field of medicine within one year of the date of the alleged act or omission forming the basis of the action.
The statute doesn’t define the term “active clinical practice,” but the concluding sentence of subsection A states, “The provisions of this section shall apply to expert witnesses testifying on the standard of care as it relates to professional services in nursing homes.” Code § 8.01-581.20(A).
Judge Kelsey explained that the Code also defines “health care” to include “any act, professional services in nursing homes, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider” and in turn defines a “Health care provider” to include “a nursing home” and “a director, officer, employee, independent contractor, or agent of” such nursing home.
The specific inclusion of nursing homes, their services, and their directors and employees in the definitions of “Health care” and “Health care provider,” provides strong support for the conclusion that the legislature intended nursing-home administrators to constitute those with “active clinical practice” qualified to offer expert testimony regarding the standard of care for professional services in nursing homes. As a result, Judge Kelsey held that the trial court improperly found that Nursing Home‘s expert fail to have an “active clinical practice” as required by the statute.
Judge Kelsey said that the Court saw no reason to question the expert’s qualifications to testify regarding the standard of care. At the time of trial, the expert was a nursing home administrator at another facility and had been so within the requisite one-year time frame. He also had nearly 30 years of experience managing nursing homes.
Nursing Home also argued that the trial court erred in allowing the Estate’s expert to testify that several of Nursing Assistant‘s actions — including raping a resident — were violations of the standard of care. According to Nursing Home, these opinions weren’t appropriate topics for expert testimony because they were within the common knowledge of the jurors. The Supreme Court agreed.
The trial court specifically found that the contested expert testimony was within the common knowledge of the jurors but nonetheless admitted the testimony. The court assessed the evidence correctly. Judge Kelsey said that it was “implausible that any lay juror would think that Nursing Assistant‘s abhorrent actions were not violations of the standard of care,” and [t]hat alone should have ended the admissibility analysis.”
Although the trial court erred in admitting the expert testimony, Judge Kelsey and the Supreme Court found that the error was harmless. Applying the “imperative demands of common sense,” the Court couldn’t say that the testimony of the Estate’s expert impacted the outcome of the case.
Judge Kelsey opined that it was “wholly implausible that the jurors would not have known that Nursing Assistant‘s actions were violations of the standard of care without an expert telling them so.” As such, while the error should not be repeated on remand, the judge said that it didn’t serve as a predicate for reversing the final judgment on appeal. The admission of expert testimony on matters within the common knowledge of the jury may not of such importance to constitute reversible error; however, this evidence shouldn’t be admitted at a new trial.
The case was reversed and remanded.