Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and 

 Koontz, JJ., and Whiting, Senior Justice 

SHIRLEY DICKERSON 

OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR. 

v. Record No. 961531 

 April 18, 1997 

NASROLLAH FATEHI, M.D., ET AL. 

 FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE 

Thomas V. Forehand, Judge 

 In this medical malpractice action, the trial court, relying 

solely upon the pleadings and certain pretrial discovery 

material, granted summary judgment in favor of a physician and 

two nurses. The court ruled, inter alia, that expert testimony 

was necessary to establish the appropriate standards of care and 

breaches thereof, and the principal issue in this appeal is 

whether that ruling was erroneous. 

 Shirley Dickerson filed this action against Nasrollah 

Fatehi, M.D., a neurosurgeon, and his professional entity, 

Atlantic Neurosurgery, P.C. (collectively, Fatehi), and against 

Rachel Jacobs, R.N., and Millicent P. Spruill, ORT.1 Dickerson 

alleged that, on February 27, 1989, she was admitted to 

Chesapeake General Hospital for neck surgery to be performed by 

Fatehi. The next day, Fatehi, assisted by Jacobs, the 

circulating nurse, and by Spruill, the surgical technician who 

acted as the scrub nurse, performed an anterior cervical 

diskectomy. 

 

 1Dickerson also filed this action against Chesapeake General 

Hospital. In a separate action which was consolidated with this 

suit, Dickerson sued Edward Habeeb, M.D., and his professional 

entity, Orthopaedic Surgeons, Ltd. (collectively, Habeeb). On 

Dickerson's motion, however, Habeeb and the Hospital were 

nonsuited. 
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 Dickerson further alleged that, during the course of the 

surgery, Fatehi "used a blunt tip 18 gauge hypodermic needle, 

including [a] plastic attachment to the syringe, as a metallic 

marker [which] . . . was intended to be removed prior to closure 

of the operative site." Fatehi, however, negligently "failed to 

remove [the] hypodermic needle" from Dickerson's neck at the 

close of surgery, and Jacobs and Spruill, in violation of their 

duty of care, negligently failed "to maintain a proper needle 

count . . . [to] ensure the removal of the needle" after surgery. 

 Following the surgery, Dickerson allegedly experienced 

"severe pain . . . [in] her right arm, hand and neck." Fatehi 

referred her to Dr. Edward Habeeb, an orthopedic surgeon. Habeeb 

ordered x-rays of Dickerson's neck and shoulder, but was unable 

to determine the cause of her pain. He referred her to Fatehi 

for therapy. 

 Approximately 20 months after the surgery, Dr. Thomas Queen, 

a general surgeon, discovered and removed the needle, including 

the plastic attachment to the syringe, from Dickerson's neck. 

Dickerson alleged that the negligence of Fatehi, Jacobs, and 

Spruill (collectively, the Defendants) was a proximate cause of 

her injuries. 

 Responding to the Defendants' pretrial discovery requests 

that Dickerson identify the expert witnesses she expected to call 

at trial, Dickerson named only a psychiatrist/neurologist and a 

radiologist. Dickerson had not named any other expert witnesses 
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when the court-ordered discovery cut-off date arrived. 

 The Defendants moved for summary judgment on the ground that 

the two experts named by Dickerson were not qualified to testify 

on the appropriate standards of care.2

 The trial court agreed 

and granted summary judgment in favor of the Defendants. At the 

same time, the trial court rejected Dickerson's contention that 

the doctrine of res ipsa loquitur applied. The court reasoned 

that Dickerson's pleadings and "the undisputed facts" showed that 

the needle marker "was not in the exclusive control of any one 

defendant." 

 Dickerson contends, on appeal as she did in the trial court, 

that, based upon the facts shown by her pleadings and the 

Defendants' admissions, expert testimony is not necessary to 

establish the appropriate standards of care and breaches thereof. 

 Dickerson asserts that "whether a reasonably prudent 

neurosurgeon . . . should account for and remove a hypodermic 

needle from a patient's body before closing the operative wound 

is within the range of common experience of a jury." Similarly, 

Dickerson also asserts that "whether a reasonably prudent 

 

 2The Defendants relied upon Code § 8.01-581.20 regarding the 

requisite knowledge, skill, and experience that a proffered 

witness must have in order to qualify as an expert witness on the 

appropriate standard of care. Code § 8.01-581.20, however, does 

not require a plaintiff to present expert testimony in all 

medical malpractice actions, Beverly Enterprises v. Nichols, 247 

Va. 264, 269, 441 S.E.2d 1, 4 (1994), and, given our decision in 

the present case, we do not reach the question whether the 

proffered witnesses were qualified to testify as experts on the 

standard of care. 
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circulating nurse and scrub nurse . . . [made] and report[ed] an 

accurate account of all needles . . . used during the surgical 

procedure . . . [also is a matter] within the common knowledge 

and experience of a jury." 

 In almost all medical malpractice cases, expert testimony is 

necessary to assist a jury in determining a health care 

provider's appropriate standard of care and whether there has 

been a deviation from that standard. Raines v. Lutz, 231 Va. 

110, 113, 341 S.E.2d 194, 196 (1986); Bly v. Rhoads, 216 Va. 645, 

653, 222 S.E.2d 783, 789 (1976). In certain rare cases, however, 

when the alleged negligent acts or omissions clearly lie within 

the range of a jury's common knowledge and experience, expert 

testimony is unnecessary. Beverly Enterprises v. Nichols, 247 

Va. 264, 267, 441 S.E.2d 1, 3 (1994); accord Jefferson Hospital, 

Inc. v. Van Lear, 186 Va. 74, 41 S.E.2d 441 (1947). 

 In considering a motion for summary judgment, a court must 

adopt those inferences from the facts that are most favorable to 

the nonmoving party, unless the inferences are forced, strained, 

or contrary to reason. Carson v. LeBlanc, 245 Va. 135, 139-40, 

427 S.E.2d 189, 192 (1993). "Summary judgment shall not be 

entered if any material fact is genuinely in dispute." Rule 

3:18. 

 This case did not go to trial; consequently, the record on 

appeal is quite limited. In addition to Dickerson's pleadings, 

the record discloses that Fatehi's attorney conceded in argument 
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before the trial court that "anybody . . . without regard to any 

medical training would be able to say that unless the object left 

in the patient has some therapeutic value, you don't leave a 

foreign object in the body." 

 Furthermore, Dickerson submitted the following request for 

admission to Fatehi: 

 15. Admit that it was your responsibility as 

surgeon to remove after surgery the 18 gauge blunt tip 

hypodermic needle placed in . . . Dickerson's neck 

during anterior cervical diskectomy surgery . . . . 

Fatehi responded as follows: 

 15. Denied. It was the obligation of Dr. Fatehi 

to remove the needle, as he did, prior to the removal 

of the disk. The request implies the needle was to be 

removed only after the surgery was performed. Dr. 

Fatehi relies on the counts of the hospital's OR 

Technician and circulating nurse at the end of the 

operation and prior to closing the wound, which counts 

indicated all needles were accounted for and none was 

in the surgical wound site and he believed that the 

counts necessarily included the needle. 

 In the present case, based upon the record before us, we are 

of opinion that, if the facts alleged and admitted by Fatehi were 

presented to a jury, the jurors, absent expert testimony, 

reasonably could determine, by calling upon their common 

knowledge and experience, whether Fatehi was negligent and 

whether his negligence was a proximate cause of Dickerson's 

injuries. Therefore, the trial court erred in ruling that expert 

testimony was necessary to establish the standard of care. 

 With respect to Jacobs and Spruill, we conclude that the 

record has not been developed sufficiently to enable either the 
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trial court or this Court to determine that the alleged 

negligence does not lie within a jury's common knowledge and 

experience so that expert testimony is necessary. Therefore, the 

trial court acted prematurely in entering summary judgment in 

favor of Jacobs and Spruill. Likewise, the record has not been 

developed sufficiently to enable either the trial court or this 

Court to determine whether the doctrine of res ipsa loquitur is 

applicable. See Easterling v. Walton, 208 Va. 214, 216-17, 156 

S.E.2d 787, 789-90 (1967) (doctrine applies where means or 

instrumentality causing injury is in exclusive possession and 

control of person charged with negligence). 

 Accordingly, we will reverse the trial court's judgment and 

remand the case for further proceedings consistent with this 

opinion.3

Reversed and remanded. 

 

 3We need not consider whether the trial court abused its 

discretion in refusing to permit Dickerson to supplement her 

discovery answers by naming additional expert witnesses because 

the case will be remanded for further proceedings. Upon remand, 

the court should establish a new date for the completion of 

discovery, and, therefore, the issue is moot.