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Court Holds Doctorís Differential Diagnosis Was Improperly Admitted Into Evidence

Mariam Toraish v. James Jay Lee
No. 160495 (April 13, 2017) Supreme Court of Virginia

by Julia L. Houp, Law Clerk
Semmes, Bowen & Semmes (

Available at:

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

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

Dr. Jocelyn Posthumus performed an autopsy and 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.”

Toraish, as the administrator of Adam’s estate, filed a medical malpractice suit against Dr. Lee and his practice. She alleged that Dr. Lee violated the applicable standard of care by failing to order that Adam be monitored overnight following surgery. Dr. Lee offered 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 testified with a “high” degree of medical certainty that Adam died of “cardiac arrest due to Brugada syndrome,” based upon his differential diagnosis.1 On cross-examination, when asked whether a postoperative respiratory compromise could have caused Adam’s death, Dr. Boyd stated that he was “not qualified to judge that . . . because [it was] out of the area of [his] expertise.” Dr. Boyd told the court that in order to provide his differential diagnosis, he either excluded all likely causes of death himself or “relied on the expertise of people who [were] qualified to exclude them.”

Toraish objected to Dr. Boyd’s opinion that Adam died from Brugada syndrome, arguing that he was not qualified to exclude postoperative respiratory compromise as a cause of death. Therefore his diagnosis was not based upon an “adequate foundation.” Dr. Lee argued that Dr. Boyd’s testimony was sufficient because he relied upon the genetic testing, autopsy report, toxicology report, medical records, and medical research when forming his opinion. The jury returned a verdict in favor of Dr. Lee and his practice and Toraish appealed.

On appeal, Toraish argued that Dr. Boyd’s expert testimony should have been excluded because it lacked an adequate factual foundation. Expert testimony is usually admissible if it will aid the trier of fact in understanding the evidence. Commonwealth v. Allen, 269 Va. 262, 274 (2005). “However, the admission of expert testimony is subject to certain fundamental requirements, including the requirement that the evidence be based on an adequate foundation.” Keesee v. Donigan, 259 Va. 157, 161 (2000).

Pursuant to Code § 8.01-401.1, experts in civil cases are permitted to form an opinion “from facts, circumstances or data made known to or perceived by such witness[es].” It also allows an expert’s opinion to be based on any information normally considered by experts practicing in the expert’s discipline, even if that information would be inadmissible in evidence. Id. While Code § 8.01-401.1 has “liberalized the admissibility of expert testimony,” Tittsworth v. Robinson, 252 Va. 151, 155 (1996), it does not “sanction[] the admission of expert testimony upon a mere assumption which . . . has no evidentiary support.” Lawson v. Doe, 239 Va. 477, 483 (1990).

In order to opine that Adam died from Brugada syndrome, Dr. Boyd needed to exclude postoperative respiratory compromise as a cause of death. While he acknowledged that he was not qualified to do this, he clarified that he excluded all potential causes of death outside of his area of expertise by “rel[ying] upon the expertise of people who [were] qualified to exclude them.” Dr. Boyd relied on Dr. Posthumus’s autopsy report to exclude respiratory compromise as a cause of death.

The Supreme Court of Virginia found that Dr. Boyd’s reliance upon Dr. Posthumus’s autopsy report was appropriate under Code § 8.01-401.1, however, Dr. Posthumus did not actually exclude respiratory compromise as a cause of death. She only found that Adam died of “cardiac arrhythmia of unknown etiology” and speculated about the possibility of a genetic cause. Additionally, experts for both Toraish and Dr. Lee recognized that respiratory compromise would have led to cardiac arrhythmia. Therefore, instead of excluding respiratory compromise as a cause of death, the autopsy report leaves it open as a possibility.

Accordingly, Dr. Boyd’s differential diagnosis was thus founded upon an assumption that was not established during the trial. The court held that the trial court abused its discretion by admitting it into evidence. As a result, the court reversed the judgment of the trial court and remanded the case for a new trial.


1 Providing a differential diagnosis includes narrowing down the possible cause of death until only one remains.