Doctor Can't Wait For Expert To Leave to Make Objection

Ben Glass

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Settling a long-running debate about the proper form of a question put to an expert, the Supreme Court of Virginia has ruled that medical malpractice experts must state opinions "within a reasonable degree of medical probability." However, a lawyer's failure to make a timely objection to an improperly phrased question means that objection is waived. The doctor loses his appeal.

Cosmetic plastic surgeon George Bitar, MD was sued in Fairfax, Virginia Circuit Court for medical malpractice arising out of a "tummy tuck" operation. The jury found in favor of the patient and awarded her $20,000 for delayed wound healing following her abdominoplasty. Dr. Bitar appealed the verdict.
The doctor's complaint was that the patient's expert witness, while outlining details of the malpractice, failed to couch his opinions using the "magic phrase" "within a reasonable degree of medical probability." Dr. Bitar's lawyers waited, however, until after the expert had left the courtroom to make the objection.
The Supreme Court ruled that the objection had to be made while the expert was testifying, not later. The Court rejected Dr. Bitar's arguments that his lawyers had an ethical duty to not raise the issue while it could be corrected by the patient. The Court upheld the malpractice verdict against Dr. Bitar.