On April 13, 2017, the Virginia Supreme Court issued Toraish v. Lee, No. 160495, reversing a medical malpractice defense verdict in a wrongful death case. It held that the defense medical genetics expert’s opinion about death causation was inadmissible differential diagnosis for being “based upon an assumption that has no basis in fact,” i.e., that the autopsy report supposedly ruled out respiratory compromise as a cause of death. Id. at 4-6, 10.

Toraish also upheld the defendant physician offering opinion testimony as a lay witness. Id. at 8-10. Indeed, in dicta the Virginia Supreme Court observed: “A doctor who is a defendant in a medical malpractice case may serve as an expert witness in his defense.” Id. at 8.