Present: All the Justices 

TIMOTHY I. LLOYD 

v. Record No. 070190 OPINION BY JUSTICE DONALD W. LEMONS 

 January 11, 2008 

ROBERT C. KIME, III, M.D., ET AL. 

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY 

James V. Lane, Judge 

 In this appeal, we consider whether the trial court erred 

in using discovery deposition testimony from the plaintiff’s 

expert witness to sustain a motion in limine excluding the 

witness’s testimony and subsequently granting summary judgment 

for the defendant based on the plaintiff’s lack of an expert 

witness. Further, we consider whether the trial court erred 

in holding that the plaintiff’s witness was not qualified to 

testify as to standard of care, breach of the standard of 

care, and proximate causation in this medical malpractice 

action because the expert failed to meet the requirements of 

Code § 8.01-581.20. 

I. Facts and Proceedings Below 

 On or about June 12, 2001, Timothy Lloyd (“Lloyd”) 

sustained a back injury while at work. On June 25, Lloyd was 

seen by Dr. Robert C. Kime, III (“Dr. Kime”), an orthopaedic 

surgeon who worked for Hess Orthopaedics and Sports Medicine, 

P.L.C. (“Hess Orthopaedics”) and specialized in surgery of the 

spine. Lloyd had a two-week history of severe neck and left 
2

arm pain, as well as motor and sensory deficits on the left 

side. Dr. Kime determined that Lloyd had two herniated disks 

in his neck, one at the C5-6 level and one at the C6-7 level. 

The herniated disks were pressing on nerve roots exiting from 

the spinal cord and on the spinal cord itself. 

 On June 29, 2001, Dr. Kime performed an anterior cervical 

discectomy decompression (a surgical procedure to remove the 

herniated disks from compressing the nerve roots) on Lloyd. 

After the surgery, Lloyd was taken to the Post Anesthesia Care 

Unit (“PACU”). Upon Lloyd’s arrival in the PACU at 3:50 p.m., 

a nurse recorded her assessment that Lloyd “moves left leg, 

feels touch to right leg, no movement.” Between that time and 

7:45 p.m., nurses in the hospital recorded on four more 

occasions that Lloyd was unable to move his right leg, toes, 

and foot. 

 After Lloyd’s surgery, Dr. Kime performed a detailed 

neurological exam, and wrote in his operative note at 6:28 

p.m. that “[Lloyd] has good motor function and no complaints 

of residual numbness or tingling in either upper extremity or 

the left lower extremity. He had no numbness in the right 

side lower extremity but did complain of diffuse weakness of 

the right leg and states he could not actively flex or extend 

the toes.” Dr. Kime recorded that the cause of the symptoms 

was not clear, but that “at worse [sic] the patient has a 
3

small cord contusion and most likely this is a problem that 

will resolve spontaneously over the course of the next several 

days to several weeks.” 

 The following morning, Dr. Kime performed another 

neurological examination at 9:00 a.m. The examination showed 

that Lloyd had not improved. Lloyd had weakness in his right 

arm and leg, milder weakness in his left arm, and numbness in 

his abdomen. He had no tibialis anterior or quadriceps 

function on his right side, but had some function in the other 

muscles in his right leg. Because of these symptoms, Dr. Kime 

started Lloyd on a 24-hour course of the intravenous steroid 

Solu-Medrol to reduce possible swelling around the spinal 

cord. An MRI completed around 12:37 that afternoon indicated 

swelling in the spinal cord at the C6-7 level. Lloyd remained 

in the hospital until July 5, 2001, when he was discharged to 

be treated with physical therapy and medication. Lloyd 

continued to suffer from unsteadiness, weakness in his right 

arm and leg, and pain in his abdomen. He began to develop 

difficulty swallowing and sexual dysfunction. 

 Lloyd filed a motion for judgment against Dr. Kime and 

Hess Orthopaedics for medical malpractice in the performance 

of the anterior cervical discectomy surgery and for his postoperative treatment in the hospital. Specifically, Lloyd 

alleged that Dr. Kime was negligent in performing the surgery 
4

because “Dr. Kime should not have cut Lloyd’s spinal cord with 

his [surgical] instruments so as to leave Lloyd partially 

paralyzed.” Also, Lloyd alleged that Dr. Kime should have 

recognized that Lloyd had suffered a partial spinal cord 

injury during surgery and administered a large dose of SoluMedrol within the first eight hours after the surgery. Lloyd 

designated Dr. Anthony Guy Lace Corkill (“Dr. Corkill”) as his 

only expert witness on the required standard of care, 

deviation therefrom, and proximate causation. 

 Dr. Corkill intended to testify at trial that the 

standard of care for surgeons performing spinal surgeries 

required Dr. Kime to “not cut the spinal cord with the 

surgical instruments in such a way as to cause permanent 

paralysis,” and to “initiate conventional heavy steroid dosage 

immediately post-operatively.” At the time of Lloyd’s 

surgery, Dr. Corkill was a practicing neurologist. Though Dr. 

Corkill had performed spinal surgeries, including anterior 

cervical discectomies, in the past, he had not performed any 

surgeries, worked in a hospital, or had hospital privileges 

since 1997. 

 Dr. Kime moved to exclude the testimony of Dr. Corkill 

because he did not meet the requirements of Code § 8.01-

581.20. The trial court read portions of the depositions of 

Dr. Corkill, Dr. Kime, and the defense expert witness Dr. Adel 
5

S. Kebaish, and found that the relevant medical procedures in 

the case were the performance of the surgery itself and the 

immediate post-operative care following the surgery. The 

trial court held that Dr. Corkill was not qualified to testify 

as to the standard of care for either procedure under Code 

§ 8.01-581.20(A), and was also not qualified to testify as to 

breach of the standard of care or proximate causation. The 

court denied Lloyd’s request to file a supplemental expert 

designation to offer another surgeon to testify on the 

standard of care, because the time for designation of experts 

pursuant to the pretrial scheduling order had expired. 

 After the trial court granted Dr. Kime’s motion in limine 

to exclude Dr. Corkill’s testimony, Dr. Kime moved for summary 

judgment on the grounds that Lloyd had no designated expert 

witness to testify on the standard of care, breach of that 

standard, or proximate causation, and therefore could not 

establish a prima facie case of medical malpractice. The 

court granted the motion for summary judgment. 

 Lloyd appeals to this Court on six assignments of error: 

1. The trial court erred in excluding Lloyd's expert 

witness and entering summary judgment based on deposition 

testimony without allowing Lloyd the opportunity to qualify 

his expert during voir dire at trial. 

2. The trial court erred in holding that one of the 

relevant medical procedures at issue was the immediate postoperative care following surgery. 
6

3. The trial court erred by failing to consider and 

apply the presumption of qualification found in VA Code 

§ 8.01-581.20(A). 

4. The trial court erred in assuming, without any 

evidence, that there was a significant medical distinction in 

evaluating, diagnosing and treating an acute spinal cord 

injury in a post-anesthesia care unit as opposed to an office 

setting or anywhere else. 

5. The trial court erred in excluding Dr. Corkill's 

testimony of the standard of care required during surgery and 

in the use of Solu-Medrol when there was no dispute on the 

applicable standard of care. 

6. The trial court erred in holding that the 

qualification requirements of VA Code § 8.01-581.20 apply to 

expert testimony regarding a breach of the standard of care 

and causation. 

II. Analysis 

A. Use of Discovery Depositions to Disqualify Expert 

 Rule 3:20 states: “No motion for summary judgment or to 

strike the evidence shall be sustained when based in whole or 

in part upon any discovery depositions under Rule 4:5, unless 

all parties to the action shall agree that such deposition may 

be so used.” See also Code § 8.01-420. We have held that 

Rule 3:20 and Code § 8.01-420 “impose a very specific 

condition; namely, the parties must agree to the use of 

depositions before they may serve as a basis in whole, or in 

part, for the entry of summary judgment. This condition 

requires some showing of acquiescence in the use of a 

deposition.” Gay v. Norfolk & W. Ry. Co., 253 Va. 212, 214, 

483 S.E.2d 216, 218 (1997). Whether a trial court’s actions 
7

conflict with the procedural requirements set forth in a rule 

of this Court or a statute is a question of law that is 

reviewed de novo. See Collins v. Shepherd, 274 Va. 390, 397, 

649 S.E.2d 672, 675 (2007). 

 Lloyd argues in assignment of error 1 that the trial 

court erred in using his expert’s discovery deposition to 

disqualify the expert and to then grant summary judgment based 

on the disqualification. Although Dr. Kime did not offer 

deposition testimony in support of his motion for summary 

judgment, he did offer it in a manner that was “functionally a 

motion for summary judgment.” Gay, 253 Va. at 214 n.*, 483 

S.E.2d at 218 n.* (holding that regardless of the label, 

defendant’s motion to dismiss for lack of subject matter 

jurisdiction “was functionally a motion for summary judgment 

and subject to Rule 3:18 [now 3:20] and Code § 8.01-420”). We 

have held that Rule 3:20 and Code § 8.01-420 apply when a 

defendant files a motion in limine seeking the exclusion of 

the plaintiff’s expert testimony, and the court’s ruling 

excluding the testimony is followed by the defendant’s motion 

for summary judgment predicated upon the exclusion. Parker v. 

Elco Elevator Corp., 250 Va. 278, 281 n.2, 462 S.E.2d 98, 100 

n.2 (1995). In such a case, the motion in limine is 

functionally a motion for summary judgment. Rule 3:20 and 

Code § 8.01-420 therefore apply to Dr. Kime’s motion to 
8

exclude Dr. Corkill’s testimony in this case. Deposition 

testimony could not be used to support the motion in limine 

unless Lloyd acquiesced. 

 Dr. Kime argues that Lloyd acquiesced in the use of the 

deposition by quoting it in his “Argument in Opposition to the 

Motion to Exclude” and his “Motion to Reconsider.” Rule 3:20 

and Code § 8.01-420 state that “[n]o motion for summary 

judgment shall be sustained when based in whole or in part” on 

discovery depositions unless the parties agree that 

depositions can be used. Rule 3:20 (emphasis added). Under 

Rule 3:20 and Code § 8.01-420 discovery depositions cannot be 

used to support a motion for summary judgment unless the 

parties agree. The Rule and statute do not apply to the use 

of depositions to oppose a motion for summary judgment. See

W. Hamilton Bryson, Virginia Civil Procedure § 9.05(10)(e) 

(4th ed. 2005). Lloyd’s use of Dr. Corkill’s deposition to 

oppose Dr. Kime’s motion in limine would be a permissible use. 

However, based upon the record of this case, Lloyd did 

not object to the use of the depositions by Dr. Kime in 

support of the motion.*

 See Parker, 250 Va. at 281 n.2, 462 

 *

Lloyd maintains that he objected at a hearing on October 

30, 2006; however, a transcript of that hearing was not filed 

in the circuit court clerk’s office and, consequently, is not 

a part of the record. The transcript is unavailable for our 

consideration. Woodfin v. Commonwealth, 236 Va. 89, 97-98, 

372 S.E.2d 377, 382 (1988) ("[W]e are limited to the appellate 
9

S.E.2d at 100 n.2. Failure to object to the use of the 

deposition is sufficient to establish acquiescence. 

Accordingly, based upon the record before us, the trial court 

did not err in using deposition evidence in the resolution of 

the motion in limine and subsequent motion for summary 

judgment. 

B. Code § 8.01-581.20 

 “The question whether a witness is qualified to testify 

as an expert is ‘largely within the sound discretion of the 

trial court.’ In the context of a medical malpractice action, 

this determination must be made with reference to Code § 8.01-

581.20.” Perdieu v. Blackstone Family Practice Ctr., 264 Va. 

408, 418, 568 S.E.2d 703, 709 (2002) (quoting Noll v. Rahal, 

219 Va. 795, 800, 250 S.E.2d 741, 744 (1979)) (internal 

citations omitted). “ ‘A trial court’s exercise of its 

discretion in determining whether to admit or exclude evidence 

 

record in this case in consideration of issues presented here. 

We are not permitted to supplement the record by referring to 

[other evidence] not made a part of this record."); Dere v. 

Montgomery Ward & Co., 224 Va. 277, 281 n.2, 295 S.E.2d 794, 

796 (1982) (holding the Court was bound by the record and the 

circuit court's certified written statement of fact, and "not 

upon counsel's recollection of what occurred" during 

proceedings in the circuit court); Rountree v. Rountree, 200 

Va. 57, 62-63, 104 S.E.2d 42, 47 (1958) (holding the Court 

would not consider facts in affidavits attached to the 

appellate briefs that were not part of the record from the 

circuit court); Old Dominion Iron & Steel Corp. v. VEPCO, 215 

Va. 658, 212 S.E.2d 715 (1975). See also Godfrey v. 

Commonwealth, 227 Va. 460, 317 S.E.2d 781 (1984). 
10

will not be overturned on appeal absent evidence that the 

trial court abused that discretion.’ ” Wright v. Kaye, 267 

Va. 510, 517, 593 S.E.2d 307, 310 (2004) (quoting May v. 

Caruso, 264 Va. 358, 362, 568 S.E.2d 690, 692 (2002)). 

 The qualification of a witness as an expert on the 

standard of care in a medical malpractice action 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, there are two methods by which a physician 

is presumed to know the statewide standard of care in his 

particular specialty or field of medicine: 

(1) If the physician is licensed in Virginia, 

he is presumed to know the standard of 

care of the specialty or field of medicine 
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in which he is qualified and certified. 

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

(2) If the physician is licensed out-of-state, 

but meets the educational and examination 

requirements of the statute, he is 

presumed to know the standard of care of 

the specialty or field of medicine in 

which he is qualified and certified. Id.

If neither situation applies, a witness nonetheless may be 

qualified to testify as to the standard of care if the witness 

demonstrates “sufficient knowledge, skill, or experience to 

make him competent to testify as an expert on the subject 

matter at issue.” Christian v. Surgical Specialists of 

Richmond, Ltd., 268 Va. 60, 65, 596 S.E.2d 522, 524 (2004); 

Sami v. Varn, 260 Va. 280, 284, 535 S.E.2d 172, 174 (2000); 

Hinkley v. Koehler, 269 Va. 82, 88, 606 S.E.2d 803, 806 

(2005). In all cases, 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.” 

Code § 8.01-581.20. 

 In this case, the parties disagree on the subject of Dr. 

Corkill’s qualification. Lloyd argues in assignments of error 

2, 3, and 4 that the trial court erred by failing to properly 

apply the requirements of qualification in Code § 8.01-581.20. 
12

 In order to qualify a witness as an expert on the 

standard of care, the proponent of the expert must show, among 

other things, that the “specialty or field of medicine in 

which [the expert] is qualified and certified” is the same as 

the defendant’s specialty or a related field of medicine. For 

example, in Griffett v. Ryan, 247 Va. 465, 472-73, 443 S.E.2d 

149, 153-54 (1994), we held that the expert, an internist, was 

qualified to testify because he demonstrated that the standard 

of care in his field did not vary from the standard of care in 

the defendant’s field, gastroenterology, a subspecialty of 

internal medicine. 

 Evidence produced by Dr. Kime indicated that Dr. Corkill 

did not have an active clinical practice in neurosurgery. 

However, for purposes of the motion in limine, the parties 

agreed that Dr. Corkill was a neurologist. Dr. Corkill was 

not licensed in Virginia, but Lloyd presented the trial court 

with a letter from the Virginia Department of Health 

Professions asserting that “Dr. Corkill’s credentials meet the 

educational and examination requirements for licensure in 

Virginia.” Under Code § 8.01-581.20, Dr. Corkill was 

therefore presumed to know the standard of care in Virginia 

for neurologists. It is undisputed that Dr. Kime was an 

orthopaedist performing a surgery that is also performed by 

neurosurgeons. Lloyd had the initial burden to demonstrate 
13

that Dr. Corkill’s area of qualification and certification had 

certain overlapping medical practices and similar standards of 

care with Dr. Kime’s. Griffett, 247 Va. at 472-73, 443 S.E.2d 

at 153-54. In other words, Lloyd had to show that Dr. 

Corkill’s specialty, neurology, is a related field of medicine 

to Dr. Kime’s specialty, orthopaedics, before Dr. Corkill 

would be qualified to testify as to the intraoperative 

standard of care in this case. 

The 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. Therefore, we conclude 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. 

Sami v. Varn, 260 Va. 280, 285, 535 S.E.2d 172, 175 (2000). 

“[T]he term ‘actual performance of the procedures at issue’ 

must be read in the context of the actions by which the 

defendant is alleged to have deviated from the standard of 

care.” Wright, 267 Va. at 523, 593 S.E.2d at 314. 

 Lloyd alleged that Dr. Kime deviated from the standard of 

care in two different ways in this case. The first deviation 

was intraoperative and Lloyd alleges that Dr. Kime performed 

the anterior cervical discectomy negligently. The second 
14

deviation was postoperative and Lloyd alleges that in the 

first seventeen hours after the surgery, Dr. Kime failed to 

recognize that Lloyd had a new neurological injury, to 

properly diagnose it, and to properly treat the new injury. 

 Lloyd argues that Dr. Corkill should be allowed to 

testify as an expert witness on the standard of care 

applicable to intraoperative negligence because the parties do 

not dispute the standard of care for this claim. Lloyd 

asserts that the requirements of Code § 8.01-581.20 are not 

applicable if the standard of care is not in dispute. 

However, “the requirements of Code § 8.01-581.20 are 

mandatory.” Perdieu, 264 Va. at 419, 568 S.E.2d at 709. It 

was undisputed in this case that Dr. Corkill had not performed 

any surgeries, worked in a hospital, or had hospital 

privileges since 1997. Dr. Corkill had no active clinical 

practice in performing spinal surgery, and Lloyd presented no 

evidence to suggest that Dr. Corkill’s practice as a 

neurologist included performing spinal surgery. The trial 

court therefore correctly held that Dr. Corkill was not 

qualified to testify as an expert witness on the standard of 

care as to Lloyd’s allegation of intraoperative negligence. 

 However, as to Lloyd’s allegation of postoperative 

negligence, Lloyd did present evidence of an overlap between a 

neurologist’s practice and a neurosurgeon’s or othopaedist’s 
15

practice. Lloyd’s theory of postoperative negligence was that 

Dr. Kime should have recognized that Lloyd had symptoms of 

having suffered a new neurological injury during surgery, and 

should have performed the appropriate diagnostic tests, 

discovered the injury, and promptly treated the injury with a 

heavy dose of the steroid Solu-Medrol. Lloyd presented 

evidence that the standard of care for neurologists and 

neurosurgeons or orthopaedists in such a scenario is the same. 

Lloyd’s expert, Dr. Corkill, stated in an affidavit that the 

neurological symptoms Lloyd displayed post-surgery 

must be evaluated like any new patient. This 

is done by taking a thorough history, 

performing a complete physical examination for 

neurological function, evaluating and ordering 

proper tests and studies, reaching a diagnosis 

and prognosis, and formulating and implementing 

a treatment plan. . . . The medical procedures 

utilized in the evaluation, diagnosis, and 

treatment of an acute spinal cord injury . . . 

are the same utilized in the hospital setting 

as opposed to the office setting, or anywhere 

else for that matter. There is no “significant 

medical distinction” in how these procedures 

are done in a hospital setting as opposed to an 

office setting or anywhere else. 

 Dr. Kime offered no evidence to contradict Lloyd’s 

evidence or suggest that there is a medical distinction 

between evaluation of a neurological injury post-surgery and 

any other time. In light of the record, the trial court could 

not disregard the uncontradicted testimony that the standard 

of care for evaluation of a neurological injury was common to 
16

neurosurgeons, orthopaedists, and neurologists. Sami, 260 Va. 

at 284, 535 S.E.2d at 174. Therefore, the trial court abused 

its discretion by failing to qualify Dr. Corkill as an expert 

on the standard of care with regard to the allegation of 

postoperative negligence. 

 Although Dr. Kime presented evidence that Dr. Corkill had 

not performed surgery within one year of the date of the 

alleged negligence, he presented no evidence that Dr. 

Corkill’s active practice in the year before Lloyd’s surgery 

was not in a related field of medicine with regard to 

postoperative diagnosis and care. Therefore, Dr. Kime failed 

to rebut the presumption that Dr. Corkill was qualified to 

testify as to the standard of care on the allegation of 

postoperative negligence. We conclude that the trial court 

abused its discretion in holding that Dr. Corkill was not so 

qualified. 

 Additionally, Lloyd argues that the trial court erred in 

holding that Dr. Corkill was not qualified under Code § 8.01-

581.20 to testify as to breach of the standard of care or 

proximate causation for either allegation of negligence. Code 

§ 8.01-581.20 addresses only the qualifications of experts to 

testify on the standard of care and whether the standard of 

care is breached. Hinkley, 269 Va. at 92 n.5, 606 S.E.2d at 

809 n.5. The requirements do not address whether an expert 
17

witness is qualified to testify on proximate causation. 

Therefore, the trial court abused its discretion by holding 

that Dr. Corkill was not qualified to testify on proximate 

causation as to either allegation of negligence 

(intraoperatively or postoperatively). 

III. Conclusion 

 The trial court did not abuse its discretion in its 

holding that Dr. Corkill was not qualified under Code § 8.01-

581.20 to give an opinion on standard of care and breach of 

the standard concerning the allegation of intraoperative 

negligence. Because the trial court did not consider the 

uncontradicted testimony of Dr. Corkill that the standard of 

care for postoperative evaluation of a neurological injury was 

common to neurosurgeons, neurologists, and orthopaedists, we 

hold that the trial court abused its discretion by not finding 

Dr. Corkill qualified to testify on this issue. On this 

record, Dr. Corkill is qualified to testify on standard of 

care, breach of standard of care, and proximate causation as 

to Lloyd’s allegation of postoperative negligence. On this 

record, Dr. Corkill is not qualified under Code § 8.01-581.20 

to testify as to standard of care or breach of standard of 

care as to Lloyd’s allegation of intraoperative negligence, 

but may be qualified to testify as to proximate causation. 
18

 Accordingly, the judgment of the trial court will be 

affirmed in part and reversed in part, and the case is 

remanded for further proceedings. 

Affirmed in part,

reversed in part,

and remanded.