VIRGINIA BOARD OF MEDICINE AND VIRGINIA DEPARTMENT OF HEALTH PROFESSIONS
LEILA HADAD ZACKRISON, M.D.
THE CIRCUIT COURT OF HENRICO COUNTY John Marshall, Judge
L. Barrett, Assistant Attorney General (Mark R. Herring,
Attorney General; Cynthia V. Bailey, Deputy Attorney General;
Allyson K. Tysinger, Senior Assistant Attorney General, on
brief), for appellants.
Jacques G. Simon (Greg Skall; Jason C. Hicks; Womble Carlyle,
Sandridge & Rice LLP, on brief), for appellee.
Present: Judges Beales, Decker and Russell Argued at
G. RUSSELL, JR., JUDGE
Board of Medicine appeals the decision of the circuit court
vacating the Board's case decision and order disciplining
Dr. Leila Hadad Zackrison, appellee, for violating certain
laws governing the practice of medicine and surgery by
physicians licensed in Virginia. The Board specifically
challenges the ruling of the circuit court holding that the
Board violated Dr. Zackrison's due process right to a
meaningful opportunity to be heard when it determined that
Dr. Zackrison did not qualify as an expert witness. Although
we find that the Board erred in prohibiting Dr. Zackrison
from testifying as an expert, we, for the reasons that
follow, reverse the decision of the circuit court and
reinstate the Board's finding of a violation and the
sanction it imposed.
Board is charged with the licensure of physicians. Code
§§ 54.1-2902, 54.1-2911 to -2928.1, 54.1-2929 to
-2941. The Board specifically may deny, suspend or revoke a
medical license or reprimand a physician based on
"unprofessional conduct." Code § 54.1-2915.
"[U]nprofessional conduct" includes the
"intentional or negligent conduct in the practice of any
branch of the healing arts that causes or is likely to cause
injury to a patient, " Code § 54.1-2915(3), or
conducting a practice in a manner dangerous to patients or
the public, Code § 54.1-2915(13). To carry out these
functions, the Board is empowered to investigate, prosecute,
and adjudicate potential violations by individual
physicians. Code § 54.1-2400(7), (9), (11).
to these statutory responsibilities, the Commonwealth
instituted a proceeding regarding Dr. Zackrison, a graduate
of Loma Linda University Medical School. Dr. Zackrison
completed both a residency in internal medicine and a
fellowship in rheumatology at Georgetown University. She has
been board certified in both internal medicine and
rheumatology since the 1990s and, at all times pertinent to
the issues in this appeal, has been a Fellow of both the
American College of Physicians and the American College of
Rheumatology. Additionally, she sought
certifications/credentials in herbal therapy and homeopathy,
anti-aging medicine, and other areas, including pursuing a
Master's degree in Metabolic and Nutritional Medicine.
Without interruption, she has been licensed by the Board to
practice medicine in Virginia since 1991.
practice, Dr. Zackrison has treated over 25, 000 patients
with rheumatological diseases. She started treating patients
with Lyme disease in 1999, initially seeing 1, 500 per year
and seeing approximately 600 per year since 2005.
letter dated August 11, 2014, the Commonwealth notified Dr.
Zackrison that an administrative hearing was to be held
before the Board to address allegations that she had violated
"certain laws governing the practice of medicine in
Virginia" in her treatment of "Patient A" over
the course of several years. Attached to the notice was a
Statement of Particulars wherein the Commonwealth alleged
that Dr. Zackrison diagnosed Patient A with several
conditions, including Lyme disease and infections, without
adequate support in the medical records to make such a
diagnosis; provided inappropriate treatment, particularly in
the form of extensive antibiotic use; and failed to maintain
adequate records documenting her care.
two-day review hearing began on February 19, 2015, and the
Board stressed that it "look[ed] at this [case] as a
standard of care case for a single patient, nothing more,
nothing less." The Commonwealth first offered the
testimony of a Department of Health investigator and then
called two physicians to testify as expert witnesses: Dr.
William Petri, Jr., an infectious disease specialist, and Dr.
Janet Lewis, a rheumatologist. The expert opinions and
curricula vitae of these witnesses were admitted
into evidence without objection. The Commonwealth's
experts testified to their opinions regarding the standard of
care applicable in Patient A's case. They described their
views on which tests were appropriate to administer and what
conclusions should be drawn from the results of those tests.
They opined Dr. Zackrison's testing and treatment methods
did not meet the standard of care applicable to Patient
A's case. In forming their opinions, the
Commonwealth's experts relied heavily on guidelines
promulgated by the Infectious Disease Society of America
("IDSA"), a private organization of health care
professionals often cited by the federal Centers for Disease
Control and Prevention. IDSA has published peer-reviewed
guidelines related to the diagnosis and treatment of Lyme
the Commonwealth's presentation of evidence, Dr.
Zackrison testified in her own defense. Her evidence included
two discs, one featuring a "slide presentation from Dr.
Zackrison regarding each of the points in the statement of
charges" and the other containing peer-reviewed
materials "backing up the slide presentation." Dr.
Zackrison's curriculum vitae also was on one of
the discs. During Dr. Zackrison's testimony, her counsel
sought to qualify her as an expert on the practice of
rheumatology and the applicable standard of care. After
counsel's voir dire exploring her academic and
practice credentials, the Board, sua sponte, stated,
"Dr. Zackrison is the respondent. You have an expert who
is going to testify tomorrow. [The respondent] needs to focus
on particulars of the statements. . . . [S]he can tell us
what she does in her practice; she has an expert
tomorrow." The following colloquy ensued:
Counsel: So she is not admitted as both an expert and the
Board: I would say no.
Counsel: Despite her -
Board: She is admitted as the respondent. She's welcome
to talk to us about what she does in her practice. She's
welcome to address the statement of particulars. Tomorrow you
have an expert who will be testifying.
Counsel: Because I believe that when we offered the C.V., we
identified her as an expert in rheumatology.
Board: She certainly is a rheumatologist. . . . She's
responding, she's here today as the respondent. . . . We
accept her credentials as a board certified rheumatologist. .
. . We accept her credentials as a physician. She's the
respondent and needs to respond to these particular charges.
. . . We accept her board certification. You have an expert
who is testifying tomorrow, so we are accepting her as the
respondent and as a board certified rheumatologist. . . .
Counsel: . . . I just wanted to make the point that she was
offered as a respondent and as an expert in her field, but I
understand your ruling of rejecting her as an expert in the
Zackrison proceeded to address the allegations. Her testimony
included references to the standard of care she applied with
respect to Patient A's varied symptomology. Her testimony
also included references to the materials she had introduced
via disc. The Board at one point interjected, "We've
had the literature. And as I said, the opportunity for expert
testimony and to rebut those experts today will come from Dr.
Horowitz tomorrow. It's [her] opportunity today to tell
us why she did what she did with this particular
patient." Ultimately, Dr. Zackrison's counsel
emphasized her objection to the Board's ruling:
Mr. Chairman, we are certainly going to make a record this
time around, and I wanted to make sure that the record is
made. Number one, you are precluding Dr. Zackrison from
testifying as an expert here just because she's a
respondent. I am aware of no rule, no statute and no case law
that supports that particular ruling. And she is giving -
she stands accused here of doing non-evidence based
medicine. And what she wants to discuss is why she - just
like you said, she wants to discuss why she did something and
how she did it, and she's addressing specifically what
the witnesses, what the State witnesses said, you are
precluding her, telling her not to read the expert testimony.
So I want to understand the ruling correctly for the record.
Is she precluded from testifying as an expert because she is
Board responded, "Yes, " eventually adding that
she may testify within her scope of practice as a board
certified rheumatologist. She may give her opinion, which we
give weight to because she's a board certified
rheumatologist. You have an expert who is coming tomorrow to
testify, and we are expecting [Dr. Zackrison] to respond to
these particular charges as the respondent.
additional back and forth, counsel sought further clarity,
asking, "I wanted to make sure that I know your ruling
that Dr. Zackrison is precluded here from testifying as an
expert in rheumatology on her own behalf because she is the
respondent; that was your ruling, correct?" In response,
the following exchange occurred:
Board: Dr. Zackrison is the respondent. She has experts and
we are accepting her testimony as a board certified
Counsel: But the ruling is that she cannot testify as an
expert in rheumatology today?
Board: She is a rheumatologist. We are accepting her
testimony as a rheumatologist. I'm not going to play word
games with you. . . . She's here as the respondent . . .
Counsel: And as I'm offering her as the respondent and as
an expert in rheumatology.
for the Board then interjected:
As the respondent, she is in a similar situation to even
though this is not a criminal proceeding, to a defendant in a
criminal trial, she would testify as herself. As the
defendant, she wouldn't simultaneously testify as an
expert witness. She is testifying here as the treating
physician. She's responding to the statement of
particulars here as the treating physician. The [Board]
recognizes her credentials and her background. I'm not
quite sure why [the Board's] ruling is not clear, but
hopefully I have shed some light on it.
Zackrison's counsel then inquired, "[W]hich statute
and which regulation of Virginia supports the fact that a
respondent is excluded from testifying as an expert witness
on her behalf?" The Board's counsel responded,
"There is no rule, there is ...