Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee, 

JJ., and Carrico, S.J. 

MARIE M. SMITH, 

EXECUTOR OF THE ESTATE OF MICHAEL R. SMITH 

v. Record No. 040349 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 November 5, 2004 

DECLAN IRVING, M.D., ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE 

Russell I. Townsend, Jr., Judge Designate 

 In this appeal of a judgment in favor of a defendant 

physician in a medical malpractice action, we consider whether 

the circuit court abused its discretion in refusing to permit 

the plaintiff to cross-examine the defendant regarding “standard 

of care” issues. 

 We will state the evidence in the light most favorable to 

the defendant, Declan Irving, M.D., the prevailing party in the 

circuit court. See City of Richmond v. Holt, 264 Va. 101, 103, 

563 S.E.2d 690, 691 (2002); Tashman v. Gibbs, 263 Va. 65, 68, 

556 S.E.2d 772, 774 (2002). Dr. Irving is a general surgeon 

whose practice includes treating obese patients by performing 

gastric bypass surgery to help them lose weight. In January 

1999, Dr. Irving evaluated the plaintiff’s decedent, Michael R. 

Smith, for this purpose and ordered gastric bypass surgery to 

reduce the size of his stomach. 

 Dr. Irving performed the surgery in February 1999. After 

the surgery, Dr. Irving and other physicians conducted several 
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tests to ensure that the surgery was successful and that the 

decedent’s gastrointestinal tract was not leaking its contents. 

The tests did not reveal a leak, and the decedent’s condition 

improved over the next few days. 

One week after the surgery, the decedent’s stomach 

unexpectedly perforated at the location where it had been 

surgically “closed off.” The contents of the decedent’s stomach 

escaped into his abdominal cavity, causing a condition known as 

peritonitis. After surviving surgery to repair his ruptured 

stomach, the decedent died from complications related to the 

peritonitis. 

 Marie M. Smith, executor of Michael R. Smith's estate, 

filed a wrongful death action against Dr. Irving and his 

professional corporation, Coastal Surgical Associates, Inc., 

alleging that Michael Smith died as a result of Dr. Irving's 

negligent medical treatment. Smith alleged that Dr. Irving was 

negligent in the manner that he conducted the gastric bypass 

procedure, in failing to identify and properly treat the 

symptoms of a gastric leak, and in delaying corrective surgery.

At trial, Smith and Irving each presented the testimony of 

two general surgeons who qualified as expert witnesses and 

testified about the applicable standard of care for the 

performance of gastric bypass surgery and the postoperative 

management of surgical patients undergoing this procedure. Dr. 
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Irving was not designated as an expert witness by either party, 

but testified in his own defense about his treatment and care of 

the decedent. 

 On direct examination, Dr. Irving testified regarding the 

general procedures involved in gastric bypass surgery: 

Q: Can you explain to us what the surgery was that 

you performed using [a diagram displayed in 

court]? 

A: The surgery consists of stapling right across the 

stomach with a device that has four rows of 

staples. And what you have to do is get across 

the top of the stomach and leave a little area 

here that’s roughly the size of a shot glass.... 

What we do is divide this roughly, I think it’s 

about 18 inches on average, but 45 centimeters 

from here to here. You divide that, then we 

bring this part all the way up here to the 

stomach. What happens now is the food comes into 

the stomach. It’s a very small, tiny stomach, 

quickly fills up and empties fairly slowly into 

this loop and it is moved with the rest of the 

colonic contents. It allows only very, very 

small food intake and is a metabolically 

satisfactory operation that doesn’t cause any 

side effects. 

In response to his counsel’s questions, Dr. Irving 

explained the techniques usually employed by physicians 

performing this type of surgery, and the actions he took during 

the course of the decedent’s surgery: 

A: The tissues lay together and at that time you 

have to test it for a leak at the end because a 

leak can occur. And what we do is we use saline 

which is a physiologic form of water with salt 

and blue dye and force that into the stomach 

under pressure and also into the bowel that’s 

hooked up to it. So that’s inserted under 
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pressure by the anesthesiologist and they blow it 

up to a preset tension and you can feel it with 

your hand. And if it doesn’t leak under 

pressure, you’re usually pretty certain that 

there is no leak at that time. 

Q: Why didn’t you place a surgical drain in [the 

decedent]? 

A: There was no evidence of a leak. It went 

together. It was a good anastomosis. The thing 

about putting in a surgical drain is you don’t 

know if it’s going to be at the site where the 

leak might occur. It could leak a centimeter 

away and it wouldn’t pick it up. It will only 

pick it up right where the leak was. If it 

leaked on the other side it wouldn’t help at all. 

Also, they’re a pathway for infection to come 

into the body as well as for drainage to come 

out. So unless you have certainty that you’re 

going to actually have drainage, I don’t think 

you should do it. 

Dr. Irving also referred to his experience and knowledge when 

testifying about his treatment decisions: 

Q: Now, we talked a lot in this case about 

gastrografin and swallows. Are you familiar with 

that study? 

A: Yes, after each of these procedures many 

surgeons, not all, do a gastrografin swallow. 

And I thought that it was important in this 

particular case because he had a little, what I 

call at the time a little tension getting 

everything together. And I have never not done 

one on anybody, but many doctors don’t. But in 

this case I thought that he needed a swallow to 

determine is there a leak after the surgery, is 

everything together and working okay. 

 On cross-examination, Smith’s counsel questioned Dr. Irving 

about his training and knowledge of postoperative procedures: 
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Q: If [patients] have a suspicion of a leak they 

should not be given anything by mouth? 

A: Probably not, no, depending on the situation. 

Q: And you were trained at that? 

A: Correct. There are many other parts of the 

intestine that can leak besides this and it 

depends on the situation. There’s no hard and 

fast rule about it. 

Q: Well, the standard of care requires that a 

patient with a leak should not have fluids by 

mouth, correct? 

Defense counsel objected to this last question on the ground 

that Dr. Irving had “not been designated as an expert witness on 

what the standard of care is.” The circuit court sustained the 

objection, stating that Smith could not “ask the doctor to be an 

expert witness against himself.” 

 The jury returned a verdict in favor of Dr. Irving, and the 

circuit court entered final judgment in accordance with the jury 

verdict. Smith appeals. 

 Smith argues that the circuit court abused its discretion 

in sustaining defense counsel’s objection to questions about the 

standard of care posed by Smith’s counsel on cross-examination. 

Smith asserts that Dr. Irving held himself out as an expert in 

general surgery and, therefore, was presumed to know the 

standard of care applicable to general surgeons practicing in 

Virginia. Smith further contends that Dr. Irving gave expert 

opinion testimony on direct examination, thereby “opening the 
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door” for Smith to inquire into the same matters on crossexamination. Thus, Smith maintains, Dr. Irving was subject to 

cross-examination as an expert witness. We disagree with 

Smith’s arguments. 

 The standard of review that we apply is well established. 

A court’s decision regarding the admission or exclusion of 

evidence is discretionary in nature and, thus, will not be 

overturned on appeal unless the record shows an abuse of that 

discretion. Wright v. Kaye, 267 Va. 510, 517, 593 S.E.2d 307, 

310 (2004); May v. Caruso, 264 Va. 358, 362, 568 S.E.2d 690, 692 

(2002); John v. Im, 263 Va. 315, 320, 559 S.E.2d 694, 696 

(2002). 

 Under “the American rule” applied in this Commonwealth, the 

cross-examination of a witness is limited to matters elicited on 

direct examination. Duncan v. Carson, 127 Va. 306, 318, 103 

S.E. 665, 668 (1920); see Velocity Express Mid-Atl., Inc. v. 

Hugen, 266 Va. 188, 206, 585 S.E.2d 557, 567 (2003); 1 John W. 

Strong, McCormick on Evidence § 21 (5th ed. 1999). Therefore, 

if counsel’s attempted cross-examination of a witness addresses 

matters exceeding the scope of direct examination, a court’s 

refusal to allow this cross-examination will be approved on 

appeal as a proper exercise of the court’s discretion. Russell 

v. Commonwealth, 261 Va. 617, 621, 544 S.E.2d 311, 313 (2001); 

Spruill v. Commonwealth, 221 Va. 475, 485, 271 S.E.2d 419, 425 
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(1980); see N. & W. Railway v. Chrisman, 219 Va. 184, 190, 247 

S.E.2d 457, 460-61 (1978). 

 In this context, we consider whether Dr. Irving’s testimony 

on direct examination addressed the standard of care applicable 

to a general surgeon in Virginia. The standard of care imposed 

on physicians and other health care providers in Virginia is 

defined as “that degree of skill and diligence practiced by a 

reasonably prudent practitioner in the [same] field of practice 

or specialty in this Commonwealth.” Code § 8.01-581.20; see

also Tashman, 263 Va. at 73, 556 S.E.2d at 777. A physician 

licensed in Virginia is presumed to know the statewide standard 

of care in the practice field or specialty in which he is 

qualified and certified. Code § 8.01-581.20; Wright, 267 Va. at 

518, 593 S.E.2d at 311; Black v. Bladergroen, 258 Va. 438, 443, 

521 S.E.2d 168, 170 (1999). 

 Our review of Dr. Irving’s testimony on direct examination, 

as illustrated by the testimony set forth above, shows that Dr. 

Irving did not give expert testimony on the standard of care for 

general surgeons performing gastric bypass surgery and providing 

related postoperative care. Instead, Dr. Irving’s direct 

testimony addressed factual issues in the case, including what 

actions he took and his reasons for taking those actions. His 

testimony regarding what “many surgeons . . . do” also was 

factual in nature and did not constitute expert testimony 
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concerning the standard of care applicable to his treatment of 

Michael Smith. 

This factual testimony was materially different from 

standard of care testimony, which involves an expert opinion 

whether a physician’s treatment of a patient demonstrated that 

degree of skill and diligence employed by a reasonably prudent 

practitioner in the same field of practice or specialty in 

Virginia. See 8.01-581.20; Tashman, 263 Va. at 73-74, 556 

S.E.2d at 777; Raines v. Lutz, 231 Va. 110, 113, 341 S.E.2d 194, 

196 (1986). Thus, we hold that because Dr. Irving’s direct 

testimony did not address any standard of care issue relating to 

his treatment of Smith, the circuit court did not abuse its 

discretion in refusing to permit cross-examination on that 

subject. See Velocity Express, 266 Va. at 206, 585 S.E.2d at 

567; Duncan, 127 Va. at 318, 103 S.E. at 668. 

Our conclusion is not altered by the fact that Dr. Irving, 

as a licensed general surgeon in Virginia, was presumed to be 

familiar with the standard of care applicable to general 

surgeons in this Commonwealth. See Code § 8.01-581.20. In the 

absence of any testimony on direct examination by a defendant 

physician addressing the standard of care, that physician’s 

presumed knowledge of the standard of care does not render him 

subject to cross-examination on that issue. 
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 For these reasons, we will affirm the circuit court’s 

judgment. 

Affirmed.