Generally, the trial court has the sole discretion to
determine whether a witness may testify as an expert. However, Virginia case law
is clear that only medical doctors are qualified to testify about the cause of
human physical injury because an opinion concerning the causation of physical
injury involves a diagnosis, which only medical doctors may offer.
Plaintiff Hollingsworth filed a negligence action against
his employer, Norfolk Southern Railway Company. Hollingsworth claimed that as a
result of his usual and ordinary job duties, he sustained injuries to his ankles
and feet. Hollingsworth designated two licensed podiatrists as expert witnesses
who would have testified that they treated Hollingsworth's foot conditions and
that the injuries were caused by repeated walking on irregular surfaces. Norfolk
Southern filed motions in limine arguing that the podiatrist could not testify
as to causation of Hollingsworth's alleged injuries because neither was a
medical doctor.
VA. CODE ANN. §54.1-2900 defines the scope of practice for
medical doctors and podiatrists. The "practice of medicine" is defined as "the
prevention, diagnosis and treatment of human physical or mental ailments,
conditions, diseases, pain or infirmities by any means or method." (Emphasis
added). On the other hand, the "practice of podiatry" is defined as "the
medical, mechanical and surgical treatment of ailments of the human foot and
ankle." The clear distinction between the two definitions is that diagnosis is
not a part of the practice of podiatry, while it is a part of the practice for
medical doctors.
The Court must assume that the General Assembly chose with
care the words it used in enacting the statute. "When the General Assembly
includes specific language in one section of a statute, but omits that language
from another section of the statute, we must presume that the exclusion of the
language is intentional."
Accordingly, both medical doctors and podiatrists may treat
ailments, but only medical doctors may diagnose.
Hollingsworth argues that the practice of podiatry
definition describes different forms of treatment – medical, mechanical, and
surgical. He argues that medical treatment implies that podiatrists may engage
in a diagnosis of conditions and ailments similar to that of medical doctors.
The Court disagreed. Surgical treatment generally refers to the repair of the
foot or ankle by an operative procedure. Mechanical treatment involves repair or
rehabilitation by a device, such as an ankle brace or a foot pad. Finally,
medical treatment generally involves treatment by use of medicine. Medical
modifies treatment. It does not mean that the podiatrist's scope of practice is
defined as broadly as that of a medical doctor.
To allow podiatrists to testify as experts regarding the
causation of human physical injuries would require the Court to insert the word
"diagnosis" into the statutory definition of "practice of podiatry." Such an
amendment falls outside of the authority of the Court and is left only to the
General Assembly.
Accordingly, the Supreme Court of Virginia affirmed the
lower Court's grant of summary judgment in favor of the Norfolk Southern Railway
Company when Hollingsworth was unable to produce experts qualified to testify to
the medical causation of his injuries.
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