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Toraish v. Lee

Supreme Court of Virginia

April 13, 2017


          FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Brett A. Kassabian, Judge



         In this appeal, the Court considers whether expert testimony was based upon an adequate foundation. The Court also considers whether the circuit court abused its discretion by permitting a defendant physician to offer an opinion as a lay witness.

         I. Background and Procedural History

         James J. Lee, M.D. is a board certified otolaryngologist. In May 2012, he began treating five-year-old Adam Traish for severe obstructive sleep apnea. Following a sleep study, Dr. Lee recommended that Adam undergo tonsillectomy and adenoidectomy surgery. He scheduled the procedure on an outpatient basis so that Adam could go home following surgery.

         Dr. Lee performed the surgery without complications. He transferred Adam to the post-anesthesia care unit where he was monitored by nurses and anesthesiologists. After awakening, he was discharged from the hospital with instructions to take prescribed pain medication every four hours. That afternoon his mother, Mariam Toraish, administered his medication and laid him down for a nap. Thirty minutes later, she found him unresponsive. He was rushed to the hospital where he was pronounced dead.

         Jocelyn Posthumus, M.D., performed an autopsy. She concluded that the cause of death was "cardiac arrhythmia of unknown etiology." Her report noted that "[a]lthough nothing of significance was identified microscopically in the heart, an underlying cardiac channelopathy or cardiac conduction system disorder cannot be ruled out especially given that the child was the product of a consanguineous marriage."[1]

         Toraish, as the administrator of Adam's estate, instituted a medical malpractice action against Dr. Lee and his practice. Her complaint alleged that Adam was at a high risk for postoperative "respiratory compromise" due to his severe obstructive sleep apnea, and that Dr. Lee violated the applicable standard of care by failing to order that he be monitored overnight following surgery. In the subsequent jury trial, Dr. Lee, who was not offered or qualified as an expert witness, testified that he was not informed prior to surgery that Adam's parents are first cousins. He also testified that he was not aware that Adam had two siblings who predeceased him. Dr. Lee was then asked,

Had you been aware of either the consanguineous marriage or the fact that two siblings had died of genetic problems, would you have recommended a [tonsillectomy and adenoidectomy surgery] on an outpatient basis . . .?

Dr. Lee responded, "I would not - knowing that there could be a genetic defect, there would be no way that I could recommend any surgery at that time." Toraish objected, arguing that this testimony was "in the nature of expert testimony." The circuit court overruled the objection.

         Dr. Lee sought to offer the testimony of Simeon Boyd, M.D., a board certified pediatric geneticist, as an expert witness on genetics and on Adam's cause of death. Dr. Boyd investigated Adam's case with the goal of providing a "differential diagnosis, " whereby he would narrow down the possible causes of death until only one remained. His investigation began with the parents' consanguineous marriage and two predeceased siblings. He also found evidence of developmental delay and "dysmorphic facial features, " symptoms of an underlying genetic disorder. After reviewing Adam's medical records, toxicology reports, and Dr. Posthumus's autopsy report, he ordered targeted gene testing on a sample of Adam's DNA. The testing revealed a variant in one of Adam's genes that allowed Dr. Boyd to opine with a "high" degree of medical certainty that Adam died of "cardiac arrest due to Brugada syndrome."[2]

         On cross-examination, Dr. Boyd acknowledged that he was not a forensic pathologist, toxicologist, cardiologist, or otolaryngologist. When asked whether postoperative respiratory compromise could have caused Adam's death, Dr. Boyd answered that he is "not qualified to judge that . . . because it's out of the area of [his] expertise." He explained that to provide his differential diagnosis he either excluded all likely causes of death himself or "relied on the expertise of people who are qualified to exclude them."

         Toraish did not object to Dr. Boyd's qualifications as an expert in genetics or to his diagnosis of Brugada syndrome. She did object, however, to his opinion that Adam died from Brugada syndrome. She contended that because Dr. Boyd was not qualified to exclude postoperative respiratory compromise as a cause of death, his differential diagnosis was not based upon an "adequate factual foundation." Dr. Lee argued that Dr. Boyd's testimony should be admitted because he relied upon the genetic testing, autopsy report, toxicology report, medical records, and medical research when forming his opinion. Over Toraish's objection, the circuit court qualified Dr. Boyd "to testify not only of the conclusion that the boy suffers from Brugada syndrome, but also . . . that manifestations of that syndrome were the cause of death in this case."

         The jury returned a verdict in favor of Dr. Lee and his practice. ...

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