RICHMOND, Va. — A physician facing the Virginia Board of Medicine had the right to appear as an expert, the Virginia Court of Appeals said on March 14, but the board’s violation of that right did not spare the doctor from a sanction by the disciplinary board.
The board could offer no good reason for refusing to allow the doctor, who was board-certified in internal medicine and rheumatology, to offer expert testimony about her experience treating Lyme disease and related conditions.
An appeals court panel said the doctor, who had been treating Lyme patients since 1999, was not disqualified from offering expert testimony simply because she was the respondent in the board action.
She failed, however, to prove she was prejudiced by the board’s error, the panel said. It reversed a trial court decision vacating the board’s disciplinary order and reinstated the sanction of a reprimand and conditional probation.
The board’s resistance to the respondent as expert was “surprising” and “seemed wrong from the start,” according to Charlottesville lawyer Jason C. Hicks, one of the attorneys who represented the doctor on appeal.
The published decision in Virginia Board of Medicine v. Zackrison, MD (VLW 017-7-065), recognizing a respondent’s right to qualify as an expert will have wider application in representation before other Virginia licensing boards, according to Hicks.
‘There is no rule’
The respondent, Dr. Leila Hadad Zackrison, graduated from Loma Linda University Medical School and completed a residency in internal medicine and a fellowship in rheumatology at Georgetown University. A Fellow of both the American College of Physicians and the American College of Rheumatology, Zackrison also sought certifications in herbal therapy and homeopathy, and pursued a master’s degree in metabolic and nutritional medicine.
Zackrison began treating patients with Lyme disease in 1999, initially seeing 1,500 per year, and seeing approximately 600 per year since 2005, according to the appellate opinion written by Judge Wesley G. Russell Jr.
In 2014, the board charged Zackrison with violating “certain laws governing the practice of medicine in Virginia” in her treatment of Patient A over the course of several years, beginning in 2003. The board’s notice stated the doctor had diagnosed Patient A with several conditions, including Lyme disease and infections and provided inappropriate treatment, including extensive antibiotic use, without adequate support in the medical records or documentation of her treatment.
At the administrative hearing, the doctor’s lawyer sought to qualify her as an expert on the practice of rheumatology and the applicable standard of care. In a series of exchanges with counsel, the board insisted that Zackrison, as respondent, should focus on the particulars of the charges and defer to her separate expert who would appear before the board the following day.
The lawyer asked the board which Virginia statute and regulation supported excluding Zackrison from testifying as an expert witness on her own behalf.
The board’s counsel responded, “There is no rule, there is no statute, but this Board is proceeding in that manner,” according to Russell’s opinion.
Finding the board’s two experts more persuasive than the doctor’s expert, the board reprimanded Zackrison and placed her license on conditional probation, requiring her to complete additional hours of continuing education.
On appeal, the Henrico County Circuit Court said the board had violated Zackrison’s due process rights by rejecting her expert testimony and vacated the board’s sanction.
Before the Court of Appeals, the board conceded there was no authority for prohibiting an otherwise qualified respondent from serving as an expert in the administrative proceeding.
In fact, “not only is there no basis in Virginia law for a rule of per se disqualification, Virginia law provides the opposite,” the panel said in a footnote to its March 14 opinion.
Allowing the board “to disqualify a witness on nothing more than a whim is the very definition of arbitrary and capricious, and therefore, is similarly inconsistent with Virginia law,” Russell wrote.
Virginia long ago removed a common law prohibition on serving as one’s own witness, expert or otherwise, and Va. Code § 8.01-396 and Virginia Supreme Court case law authorize such a dual role in a civil proceeding.
The board erred in refusing to accept Zackrison as an expert because she was the respondent.
As evidentiary rules are relaxed in practice before the board, the panel said the ultimate decision of what standard should apply to qualify the expert – whether the more stringent medical malpractice standard or a lesser standard – should be left to the board.
Under any reasonable standard, Zackrison was qualified to appear as an expert on rheumatology, Russell said, based on her education, training and experience.
But refusing to allow Zackrison to testify as an expert ultimately did not violate the doctor’s due process rights because she did not show that she was prejudiced by the refusal, the panel said.
Zackrison testified at length about the relevant standards of care and cited supporting medical literature. She had another rheumatologist testify as an expert in her defense and the board said it gave weight to Zackrison’s opinion because she is a board-certified rheumatologist.
The doctor indicated that, approved as an expert, she could have correlated the care she rendered with supporting medical literature.
The board’s ruling did not prevent the doctor from putting on her case or deprive her of a meaningful opportunity to be heard, the panel said. It reversed the circuit court decision and reinstated the board’s penalties.