PRESENT: All the Justices 

INEZ JACKSON, ADMINISTRATRIX OF THE 

ESTATE OF JAMES M. JACKSON, DECEASED 

v. RECORD NO. 080502 OPINION BY JUSTICE CYNTHIA D. KINSER 

 January 16, 2009 

FAIQA AFTAB QURESHI, M.D., ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Karen J. Burrell, Judge 

In this wrongful death action, the sole issue is whether a 

plaintiff’s proffered medical expert witness satisfied the 

criteria of Code § 8.01-581.20 to testify on the standard of 

care in the defendant’s specialty. Because we find that the 

record clearly demonstrates the witness met the statutory 

“knowledge” requirement and “active clinical practice” 

requirement, see Wright v. Kaye, 267 Va. 510, 518, 593 S.E.2d 

307, 311 (2004), and was therefore qualified to testify as an 

expert with regard to the medical procedure at issue, we will 

reverse the circuit court’s judgment excluding the medical 

expert witness’ testimony. 

BACKGROUND 

The only issue before us concerns the question whether an 

expert witness was qualified to testify. Therefore, “we need 

recite only those facts necessary to our resolution of the 

appeal.” Dagner v. Anderson, 274 Va. 678, 681, 651 S.E.2d 640, 

641 (2007). Accord Budd v. Punyanitya, 273 Va. 583, 587, 643 
S.E.2d 180, 181 (2007); Molchon v. Tyler, 262 Va. 175, 180, 546 

S.E.2d 691, 695 (2001). 

Inez Jackson, (Jackson), administratrix of the estate of 

James M. Jackson, deceased, (infant Jackson), filed a wrongful 

death action against Faiqa Aftab Qureshi, M.D., and her 

employer, Children’s Specialty Group, PLLC. Jackson alleged, 

among other things, that Dr. Qureshi, while acting within the 

scope of her employment, negligently discharged infant Jackson 

and failed to admit him to inpatient hospital care when the 

infant presented at an emergency room with signs of respiratory 

distress and/or pertussis.1 She claimed that, as a direct and 

proximate result of Dr. Qureshi’s failure to comply with the 

applicable standard of care, infant Jackson ultimately died from 

pertussis and other complications caused by the infection. 

Finally, Jackson asserted that, during all times relevant to the 

claim, Dr. Qureshi “was a physician licensed to practice 

medicine in the Commonwealth . . . and was engaged in the 

practice of pediatric emergency medicine and/or pediatric 

medicine.” 

During discovery, Jackson identified John F. Modlin, a 

physician licensed in New Hampshire and board certified in 

pediatrics and pediatric infectious diseases, as her only 

 1

 Pertussis, also known as whooping cough, is a highly 

contagious disease caused by the bacterium Bordetella pertussis. 

2
standard of care expert. Prior to trial, the defendants moved 

the circuit court to exclude Dr. Modlin’s testimony as an expert 

witness on the standard of care. The parties agreed that the 

circuit court could decide the motion by using Dr. Modlin’s 

deposition testimony and voir dire testimony elicited at a 

previous trial.2 Jackson also admitted into evidence a letter 

from the Commonwealth of Virginia Department of Health 

Professions, certifying “Dr. Modlin’s credentials meet the 

educational and examination requirements for licensure in 

Virginia.” Jackson further agreed that if the defendants 

prevailed on the motion to exclude Dr. Modlin’s testimony, she 

would not name a replacement standard of care expert and “the 

case would come to a close.” 

Turning now to the testimony considered by the circuit 

court, Dr. Modlin, during his voir dire direct examination, 

first testified about his qualifications. Dr. Modlin has been a 

professor of pediatric medicine at Dartmouth Medical School for 

the past 15 years. He has served as chairman of the pediatric 

department for approximately seven years and also has worked as 

a physician with the infectious disease group at the Dartmouth 

 2

 Prior to filing the instant action, Jackson had filed an 

identical wrongful death action but had taken a voluntary 

nonsuit during argument on the defendants’ motion to preclude 

Dr. Modlin from testifying. At the trial on the nonsuited 

action, testimony was elicited from Dr. Modlin during the voir 

dire to qualify him as an expert witness. 

3
Hitchcock Medical Center. Dr. Modlin explained that, as 

chairman of the department of pediatrics and as a medical 

director of the Children’s Hospital at Dartmouth Hitchcock 

Medical Center, he has responsibility for both clinical and 

academic missions. 

With regard to his clinical responsibilities, Dr. Modlin 

testified that he spends about 25 to 30 percent of his time in 

direct patient care, divided between two areas, “one as an 

infectious disease physician,” and the other “in a general 

pediatric clinical position.” He explained that, in the latter 

setting, he has direct responsibility for patient care of 

children admitted to “a general pediatric ward,” and that many 

of those patients are infectious disease patients. Dr. Modlin 

testified that the pediatric ward admits from five to thirteen 

patients per day and that he has “direct responsibility for all 

of those patients.” According to Dr. Modlin, a child may be 

admitted to the pediatric ward through several different routes: 

They may be admitted directly from the outside, where 

they do not pass through the emergency room. There 

will be other patients who will first come to the 

emergency room, and because they are sick require 

admission and will be directly admitted to the ward. 

 We at Dartmouth have what we call an urgent care 

clinic, where many of the pediatric patients when they 

first arrive at the emergency room are so called 

triaged by the nurses. They are evaluated, and if 

they don’t have a medical condition that puts them at 

very high risk where their life is clearly being 

threatened right then and there, most of the patients 

4
who are sick are actually sent up to our urgent care 

clinic. 

 So, quite a bit of the care that I provide in the 

acute care setting actually is done in the urgent care 

clinic. Again, it’s mostly in the setting of 

supervising pediatric residents and medical students 

who are maybe providing direct care, but . . . I would 

have ultimate responsibility for the outcome for those 

patients. 

Dr. Modlin testified at length concerning his knowledge of 

the infectious disease, pertussis. He responded affirmatively 

when asked if he is “familiar with the standard of care for a 

reasonably prudent pediatrician physician in the Commonwealth of 

Virginia as to the care and treatment of those who present with 

respiratory problems and/or pertussis.” 

During cross-examination, Dr. Modlin admitted he is not 

board certified in pediatric emergency medicine and does not 

present himself as an expert in “pediatric emergency department 

medicine.” He further admitted that he has not worked in an 

emergency room department since the early 1980s, and that the 

hospital in which he currently works does not have a separate 

emergency department for children. Dr. Modlin, however, 

testified that he “would feel quite confident to deal with most 

any infectious disease that presented to an emergency department 

and . . . that [he] could render an . . . expert opinion, 

regarding any infectious disease that might show up in the 

[emergency department].” 

5
Dr. Modlin admitted that, during the past five years, he 

has not been called upon to diagnose a single patient with 

pertussis in an emergency room setting. However, Dr. Modlin 

pointed out that he has treated such patients in the urgent care 

clinic and that this setting is “very similar to an emergency 

room setting.” 

Dr. Modlin’s deposition, which was taken approximately a 

month before the first trial, provided much of the same 

information. When asked about the clinical activities that 

occupy 25 to 30 percent of his time, Dr. Modlin responded, “I 

see patients principally in the inpatient setting. I see 

infectious disease consultations, both adult and pediatric 

infectious disease consultations; and I also maintain a limited 

pediatric infectious disease outpatient practice.” Dr. Modlin 

testified that he does see patients in the emergency department 

on a consultation basis, but admitted that he “actually [does 

not] work as an emergency room physician.” He further admitted 

that he is “not trained or board certified in emergency 

medicine.” Dr. Modlin, however, testified, “I believe that all 

pediatricians who care for acutely ill children, regardless of 

whether they are [emergency department] physicians or pediatric 

[infectious disease] physicians or general pediatricians should 

appreciate how pertussis can present in an infant.” 

6
Also during his deposition, Dr. Modlin made it clear that 

his “only concern regarding the standard of care [is that infant 

Jackson] should have been admitted to the hospital.” When asked 

whether his “sole opinion” is that “the standard of care under 

the circumstances presented [was] such that the infant . . . 

should have been admitted to the hospital,” Dr. Modlin answered, 

“Correct.” 

After considering the evidence and oral arguments, the 

circuit court granted the defendants’ motion. The circuit 

court, in light of the stipulation reached between the parties, 

then ordered the case dismissed with prejudice. Jackson appeals 

from the circuit court’s judgment. 

DISCUSSION 

The sole issue on appeal is whether the circuit court 

abused its discretion by holding that Dr. Modlin was not 

qualified to testify as an expert on the standard of care. “The 

question whether a witness is qualified to testify as an expert 

is largely within the sound discretion of the trial court.” 

Lloyd v. Kime, 275 Va. 98, 108, 654 S.E.2d 563, 569 (2008) 

(internal quotations omitted); accord Perdieu v. Blackstone 

Family Practice Ctr., 264 Va. 408, 418, 568 S.E.2d 703, 709 

(2002). “ ‘A decision to exclude a proffered expert opinion 

will be reversed on appeal only when it appears clearly that the 

witness was qualified.’ ” Perdieu, 264 Va. at 418, 568 S.E.2d 

7
at 709 (quoting Noll v. Rahal, 219 Va. 795, 800, 250 S.E.2d 741, 

744 (1979)); see also Sami v. Varn, 260 Va. 280, 284, 535 S.E.2d 

172, 174 (2000) (“we will reverse a holding that a witness is 

not qualified to testify as an expert when it appears clearly 

from the record that the witness possesses sufficient knowledge, 

skill, or experience to make him competent to testify as an 

expert on the subject matter at issue”). 

In a medical malpractice action, the qualification of a 

witness as an expert on the standard of care is governed by Code 

§ 8.01-581.20, which states in relevant part: 

Any physician . . . who is licensed to practice in 

Virginia shall be presumed to know the statewide 

standard of care in the specialty or field of medicine 

in which he is qualified and certified. This 

presumption shall also apply to any physician who is 

licensed in some other state of the United States and 

meets the educational and examination requirements for 

licensure in Virginia. . . . An expert witness who is 

familiar with the statewide standard of care shall not 

have his testimony excluded on the ground that he does 

not practice in this Commonwealth. A witness shall be 

qualified to testify as an expert on the standard of 

care if he demonstrates expert knowledge of the 

standards of the defendant’s specialty and of what 

conduct conforms or fails to conform to those 

standards and if he has had active clinical practice 

in either the defendant’s specialty or a related field 

of medicine within one year of the date of the alleged 

act or omission forming the basis of the action. 

Under this statute, a physician is presumed to know the 

statewide standard of care in the physician’s specialty or field 

of medicine either if the physician is licensed to practice in 

Virginia or “[i]f the physician is licensed out-of-state, but 

8
meets the educational and examination requirements of the 

statute.” Lloyd, 275 Va. at 109, 654 S.E.2d at 569. The 

statutory presumption applied to Dr. Modlin. Although he was 

not licensed to practice in Virginia, Dr. Modlin’s credentials 

satisfied the educational and examination requirements for 

licensure in the Commonwealth, according to the letter from the 

Commonwealth of Virginia Department of Health Professions. 

Thus, it was presumed that Dr. Modlin knew the statewide 

standard of care in his specialties of pediatrics and pediatric 

infectious diseases. 

Even with the benefit of the presumption, “to qualify as an 

expert witness on the standard of care, the witness must have 

expert knowledge on the standard of care in the defendant’s 

specialty and an ‘active clinical practice in either the 

defendant’s specialty or a related field of medicine within one 

year of the date of the alleged act or omission forming the 

basis of the action.’ ” Id. (quoting Code § 8.01-581.20). We 

have previously referred to these two requirements as the 

“knowledge” requirement and the “active clinical practice” 

requirement. Wright, 267 Va. at 518, 593 S.E.2d at 311. 

With regard to the “knowledge” requirement, Jackson, as the 

proponent of the expert witness, had the initial burden to 

“show, among other things, that the ‘specialty or field of 

medicine in which [Dr. Modlin] is qualified and certified’ is 

9
the same as [Dr. Qureshi’s] specialty or a related field of 

medicine.” Lloyd, 275 Va. at 109, 654 S.E.2d at 569-70 (quoting 

Code § 8.01-581.20). In other words, Jackson had to demonstrate 

that Dr. Modlin’s “area of qualification and certification” in 

pediatrics and pediatric infectious diseases “had certain 

overlapping medical practices and similar standards of care 

with” Dr. Qureshi’s “area of qualification and certification” in 

pediatric emergency medicine. Id. at 110, 654 S.E.2d at 570. 

This requirement can be shown by evidence that the standard of 

care, as it relates to the alleged negligent act or treatment, 

is the same for the proffered expert’s specialty as it is for 

the defendant doctor’s specialty. Sami, 260 Va. at 283-84, 535 

S.E.2d at 174; see also Griffett v. Ryan, 247 Va. 465, 472-73, 

443 S.E.2d 149, 153-54 (1994) (holding that an internist was 

qualified to testify as an expert because the evidence 

demonstrated that the standard of care applicable to the 

internist did not vary from the standard of care in the 

defendant’s specialty, gastroenterology, a subspecialty of 

internal medicine). 

In Sami, this Court held that a trial court abused its 

discretion by holding that an expert witness whose specialty was 

in obstetrics-gynecology did not demonstrate knowledge of the 

standard of care applicable to the defendant’s specialty in 

10
emergency medicine. 260 Va. at 284, 535 S.E.2d at 174. We 

explained: 

[The expert’s] lack of knowledge regarding certain 

procedures of emergency medicine might disqualify him 

from rendering expert testimony as to those 

procedures, but that lack of knowledge does not 

preclude him from giving expert testimony on 

procedures which are common to both emergency medicine 

and the field of obstetrics-gynecology and are 

performed according to the same standard of care. 

Id. at 284, 535 S.E.2d at 174; see also Wright, 267 Va. at 522, 

593 S.E.2d at 313 (whether an expert has knowledge of the 

standard of care for a defendant’s specialty must be determined 

by reference to the relevant medical procedure at issue in a 

particular case). 

Applying these principles, we conclude that Dr. Modlin 

satisfied the “knowledge” requirement of Code § 8.01-581.20. 

It is undisputed that the only relevant medical procedure at 

issue is Dr. Qureshi’s decision not to admit infant Jackson to 

inpatient hospital care when the infant presented to the 

emergency room showing signs of respiratory distress and/or 

pertussis. Dr. Modlin testified in his deposition, “all 

pediatricians who care for acutely ill children, regardless of 

whether they are [emergency department] physicians or pediatric 

11
[infectious disease] physicians or general pediatricians should 

appreciate how pertussis can present in an infant.”3

That uncontradicted testimony demonstrated that the 

standard of care, as it pertains to the medical procedure at 

issue, is the same for a physician with specialties in 

pediatrics and pediatric infectious diseases as it is for a 

physician with a specialty in pediatric emergency medicine. 

Thus, we hold that Dr. Modlin met the “knowledge” requirement of 

Code § 8.01-581.20. Lloyd, 275 Va. at 109-10, 654 S.E.2d at 

569-70; Sami, 260 Va. at 284, 535 S.E.2d at 174. 

We now move to the question whether Dr. Modlin satisfied 

the “active clinical practice” requirement. To qualify as an 

expert, Dr. Modlin needed an “ ‘active clinical practice in 

either [Dr. Qureshi’s] specialty or a related field of medicine 

within one year of the date of the alleged act or omission 

forming the basis of [the] action.’ ” Sami, 260 Va. at 283, 535 

S.E.2d at 174 (quoting Code § 8.01-581.20). 

 3

 Although Dr. Modlin never stated this opinion to a 

reasonable degree of medical probability, the defendants did not 

contemporaneously, or at any other time, object to this 

testimony. Therefore, the testimony was properly before the 

circuit court to consider and may be relied upon by this Court 

on appeal. See Bitar v. Rahman, 272 Va. 130, 141, 630 S.E.2d 

319, 325 (2006) (medical expert testimony admitted without a 

timely objection was properly considered by the jury 

notwithstanding the fact it was not stated within a reasonable 

degree of medical probability). 

12
In Sami, this Court addressed the application of the phrase 

“related field of medicine” contained in Code § 8.01-581.20. 

There, we stated that “[t]he purpose of the requirement in 

§ 8.01-581.20 that an expert have an active practice in the 

defendant's specialty or a related field of medicine is to 

prevent testimony by an individual who has not recently engaged 

in the actual performance of the procedures at issue in a case.” 

260 Va. at 285, 535 S.E.2d at 175. We therefore concluded that 

“in applying the ‘related field of medicine’ test for the 

purposes of § 8.01-581.20, it is sufficient if in the expert 

witness’ clinical practice the expert performs the procedure at 

issue and the standard of care for performing the procedure is 

the same.” Id.

It should be clear from our discussion concerning the 

“knowledge” requirement that the standard of care for the 

medical procedure at issue was the same with regard to Dr. 

Modlin’s specialties and Dr. Qureshi’s specialty. Thus, the 

only remaining question is whether Dr. Modlin actually performed 

the procedure at issue in his clinical practice within one year 

of the date of the alleged negligent act or omission. 

With regard to the only relevant medical procedure at issue 

in this case, i.e., whether infant Jackson should have been 

admitted to inpatient hospital care when he presented at the 

emergency room showing signs of respiratory distress and/or 

13
pertussis, the record is clear that Dr. Modlin directly treated 

patients who presented with respiratory distress or pertussis 

within one year of the date of the alleged omission in this 

case. Although Dr. Modlin admitted that he had not treated a 

patient presenting with pertussis in an emergency room during 

the relevant time frame, he testified that he had treated such 

patients in the urgent care clinic. According to Dr. Modlin’s 

uncontradicted testimony, the urgent care clinic where he saw 

those patients and an emergency room are “very similar” clinical 

settings. Thus, we conclude that Dr. Modlin met the “active 

clinical practice” requirement with regard to the relevant 

medical procedure at issue in this case. Lloyd, 275 Va. at 109-

10, 654 S.E.2d at 569-70; Sami, 260 Va. at 284, 535 S.E.2d at 

174. 

The defendants, however, argue that the 25 to 30 percent of 

Dr. Modlin’s time spent in direct patient care was insufficient 

to establish that he had an “active” clinical practice with 

regard to the relevant medical procedure at issue. We find this 

argument unpersuasive. The provisions of Code § 8.01-581.20 do 

not set a minimum threshold amount of time a physician must 

spend in clinical practice to establish that such physician 

maintains an “active clinical practice,” and this Court is not 

free to impose one. The statute states simply that the 

proffered expert must have an “active clinical practice” in the 

14
defendant’s specialty or a related field of medicine “within one 

year” of the alleged negligent act or omission. Code § 8.01-

581.20. 

The record clearly demonstrates that, within the relevant 

one-year time frame, Dr. Modlin was engaged in an ongoing 

clinical practice and treated patients presenting with pertussis 

on more than a sporadic basis. In contrast, we held in Hinkley 

v. Koehler, 269 Va. 82, 606 S.E.2d 803 (2005), that a teaching 

and consulting physician did not satisfy the “active clinical 

practice” requirement because he did not provide any direct 

patient care. Id. at 90, 606 S.E.2d at 807. Certainly, there 

may be instances when the expert’s clinical practice with regard 

to the medical procedure at issue is so de minimis that the 

witness would not meet the “active clinical practice” 

requirement. However, in the case at bar, Dr. Modlin’s direct 

involvement in the treatment and care of patients presenting 

with respiratory distress or pertussis was not de minimis. In 

this case, the purpose of the “active clinical practice” 

requirement, i.e., to prevent testimony by a physician who has 

not recently engaged in the actual performance of the medical 

procedure at issue, was clearly satisfied. Thus, we hold that 

Dr. Modlin met the “active clinical practice” requirement of 

Code § 8.01-581.20. 

15
16

CONCLUSION 

 Because it appears clearly from the record that Dr. Modlin 

met the “knowledge” requirement and the “active clinical 

practice” requirement of Code § 8.01-581.20, we conclude that 

the circuit court abused its discretion in holding otherwise. 

See Perdieu, 264 Va. at 418, 568 S.E.2d at 709. Thus, we will 

reverse the judgment of the circuit court and remand for further 

proceedings. 

Reversed and remanded.