Bitar v. Rahman

Present: 	All the Justices
GEORGE BITAR, M.D.
v. 	Record No. 051891 	OPINION BY JUSTICE CYNTHIA D. KINSER
June 8, 2006
WAFA RAHMAN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David T. Stitt, Judge
In this medical malpractice action, we address two
issues: (1) the fact that the plaintiff’s only medical
expert witness did not state his opinion to a reasonable
degree of medical probability; and (2) the sufficiency of
the evidence. 	Because the defendant did not make a
contemporaneous objection when the medical expert’s
testimony was introduced, the defendant’s motion to strike
the expert’s testimony made at the close of the plaintiff’s
evidence was not timely, and the objection was therefore
waived. 	Thus, the jury properly considered the expert’s
opinion. 	With regard to the sufficiency of the evidence,
we conclude that the plaintiff presented sufficient
evidence establishing that the defendant breached the
standard of care and that the breach was a proximate cause
of the plaintiff’s injury. 	Thus, the circuit court’s
judgment in favor of the plaintiff was neither plainly
wrong nor without evidence to support it. 	We will
therefore affirm that judgment.

2
RELEVANT FACTS AND PROCEEDINGS
The appellee, Wafa Rahman, underwent an
abdominoplasty, a surgical procedure commonly known as a
“tummy tuck.” 1 The appellant, Dr. George J. Bitar,
performed the surgery in March 2003. 	During an office
visit on the day prior to the scheduled procedure, Dr.
Bitar made pre-operative markings on Rahman’s abdomen in
preparation for the surgery. 	According to Dr. Bitar, he
used those markings as points of reference or guidelines
during the surgery so that he would know if he was cutting
approximately the same amount of skin from the right and
left sides of Rahman’s abdomen. 	Dr. Bitar indicated that
the markings were necessary because tissue moves around
when a patient lies on the operating table.
The day following the surgery, Dr. Bitar noted in
Rahman’s chart that the “[a]bdominal incision [was] healing
well.” 	Two days after the surgery, Dr. Bitar again noted
that the “[a]bdominal incision [was] healing well,” but he
observed a “[s]mall two-by-one centimeter of ischemia” on
1 Rahman also underwent a breast reduction surgical
procedure, but this medical malpractice action pertains
solely to complications that resulted from the
abdominoplasty.

3
Rahman’s mid-abdomen. 2 During the first post-discharge
examination, Dr. Bitar stated that the “[i]ncision looked
good with [a] small area [of] ecchymosis.” 3 In several
follow-up appointments, however, Dr. Bitar had to perform a
“minor debridement” of dead or necrotic tissue in order for
the wound to heal. 	The area of the necrotic tissue
eventually measured 18 by 8 centimeters and was caused by a
loss of blood supply to Rahman’s abdominal flap. 	Because
of the necrosis, Rahman’s wound did not heal until
approximately nine months after the surgery. 4
As a result of the complications Rahman suffered
following the abdominoplasty, she filed an amended motion
for judgment against Dr. Bitar alleging negligence and lack
of informed consent. 5 Rahman alleged that Dr. Bitar
breached the standard of care and was negligent in his
2 Expert witnesses defined the term “ischemia” as a
“decrease in blood supply,” thereby indicating “signs of
blood insufficiency to the tissues.”
3 Expert witnesses defined the term “ecchymosis” as
“bruising when [there is] blood under the skin that can
cause a bluish, purple area which is sometimes
indistinguishable from ischemia” and as “a harbinger of
potential skin damage due to loss of blood supply.”
4 The term “necrosis” is defined as the “death of
living tissue” that is “affected by loss of blood supply.”
Webster’s Third New International Dictionary 1511 (1993).

4
treatment of her, thereby causing, among other things, “a
non-healing abdominal wound, swelling, . . . mutilation,
large irregular scarring and scar tissue.”
At trial, Rahman presented testimony from Dr. Elliot
W. Jacobs, who qualified as an expert in the field of
plastic surgery. 	Dr. Jacobs had reviewed Rahman’s medical
records with regard to the abdominoplasty as well as pre-
operative and post-operative photographs of Rahman. 	He had
also examined her on two occasions after the surgery. 	Dr.
Jacobs described how an abdominoplasty is performed and
discussed the planning and monitoring of the procedure. 	He
explained that, in performing an abdominoplasty, “there is
a limit as to how much tissue you can remove or how much
you can tighten it before the blood supply to the remaining
tissues is compromised. 	And then, as occurred in this
case, the tissues left in place will die due to lack of
blood supply.” 	Based on the photographs of Rahman, Dr.
Jacobs concluded that Dr. Bitar’s pre-operative markings
“turned out to be the place where he made his final
determination of how much tissue would be removed.” 	Dr.
Jacobs explained, however, that a plastic surgeon should
not pre-determine how much tissue to remove because an
5 The circuit court dismissed the count alleging lack
of informed consent. 	That issue is not before us in this

5
abdominoplasty “is an operation in which basically you cut
as you go. . . . [T]he proper way to do it is not to draw a
line but basically to pull it down [and] cut off what [the]
patient gives you.”
With regard to Rahman’s abdominoplasty, Dr. Jacobs
testified that the ecchymosis noted on the second day after
surgery was the first warning of a potential problem. 	The
ecchymosis occurred in the area below the “belly button,”
which is the area “furthest from the predictable blood
supply.” 	According to Dr. Jacobs, the subsequent
appearance of ischemia in the same area was a “red flag.”
Once the ischemia manifested, Dr. Jacobs indicated that
certain remedial efforts were possible, such as cutting
some of the stitches free, but that such efforts were not
made with regard to Rahman. 	Dr. Jacobs did describe how
Dr. Bitar had gradually removed the dead tissue by cutting
it away until he reached “healthy bleeding tissue.”
During cross-examination, Dr. Jacobs was asked whether
he believed that Dr. Bitar had removed too much tissue
because Dr. Bitar had pre-planned the amount of tissue he
would take out during the abdominoplasty. 	Dr. Jacobs
answered, “[y]es,” explaining that “[Dr. Bitar] could have
resected less tissue; and, in my opinion, I believe
appeal.

6
[Rahman] would not have had this problem.” 	Continuing, Dr.
Jacobs testified that, in his 31 years of practice as a
plastic surgeon, he had never seen an area of necrosis as
large as that sustained by Rahman. 	Finally, Dr. Jacobs
clarified his opinion in the following exchange of
questions and answers:
A: 	What I am saying is that the apparent
predetermination of tissue was a deviation. 	It
should not have been predetermined, at least
according to this marking.
Number two, I believe that too much tissue
was removed leading to the suturing of the flap
under such tension that the blood supply was
compromised and the tissue eventually died.
That’s what I’m saying.
Q: 	And if that was not a predetermination of what
tissue would be removed but simply a guideline for him
and what he did was to undermine it, as you indicated,
and he brought the tissue down and trimmed off what
was excess over the lower side of the cut, that’s what
you do, isn’t it?
A: 	Yes.
Q: 	And if he did that, then he didn’t breach the
standard of care, even if it did break down
thereafter?
A: 	I believe, again, with a – with a result of this
magnitude something went horribly wrong. 	And it’s a
matter of judgment as to . . . how much tissue you can
safely remove. 	That comes with experience.
At the close of Rahman’s evidence, Dr. Bitar moved to
strike Dr. Jacobs’ testimony and to enter judgment in favor
of Dr. Bitar. 	He argued that Dr. Jacobs failed to express

7
an opinion to a reasonable degree of medical probability
that Dr. Bitar had breached the standard of care and that
the breach was the proximate cause of Rahman’s injuries.
Dr. Bitar emphasized the point that Dr. Jacobs never
expressed an opinion to a reasonable degree of medical
probability. 	The circuit court took Dr. Bitar’s motion
under advisement.
At the close of all the evidence, Dr. Bitar renewed
his motion to strike Rahman’s evidence and enter judgment
in his favor. 	In support of his motion, Dr. Bitar argued
the following:
[A]t no time was Dr. Jacobs ever asked to express
an opinion with reasonable medical certainty with
respect to the standard of care.
There is no doubt that he stated that in his
opinion Dr. Bitar erred because he planned to
remove more tissue and, therefore, preplanned it
and did, in fact, upon the execution remove more
tissue than he should have removed thereby
creating a situation where excess tension was
placed upon the abdominal flap resulting in
inadequate blood supply to what I guess has been
termed as area two or the area below the navel
and that as a result . . . that area suffered
from ischemia and the death of that tissue
leaving a cosmetically displeasing appearance to
her lower abdomen.
If he had coupled that with the statement
that – with reasonable medical certainty or
reasonable medical probability . . . he would
have perhaps met the standard of care; but he
didn’t do that.

8
The circuit court denied the motion, explaining that
although “the general rule is that medical expert opinion
must be rendered to a reasonable degree of medical
probability[,] . . . the appropriate time for [the motion]
was at the time the witness offered the opinion[,] . . .
not after the opinion is in the record.” 	The circuit court
also denied Dr. Bitar’s motion to reconsider the denial of
his motions to strike Dr. Jacobs’ testimony and to strike
Rahman’s evidence.
The jury then returned a verdict in favor of Rahman
and awarded damages in the amount of $20,000. 	Following
the verdict, Dr. Bitar filed a written motion to set aside
the jury verdict and to enter judgment as a matter of law
in his favor. 	Dr. Bitar argued that Rahman failed to
present expert testimony in three areas: (1) what the
standard of care required Dr. Bitar to do with regard to
Rahman’s surgery; (2) that Dr. Bitar breached the standard
of care; and (3) that any such breach was a proximate cause
of Rahman’s damages. 	Dr. Bitar also asserted that, to the
extent Dr. Jacobs offered an opinion, he did not do so to a
reasonable degree of medical probability. 	The circuit
court acknowledged that Dr. Jacobs had not been asked
whether his opinion was to a reasonable degree of medical
probability. 	Nevertheless, the circuit court again

9
concluded that an objection on that basis was untimely.
The court also stated Dr. Jacobs had testified that Dr.
Bitar had breached the standard of care and that his
testimony went beyond “mere possibilities.” 	Thus, the
circuit court denied the motion and entered judgment for
Rahman in accordance with the jury verdict. 	Dr. Bitar now
appeals to this Court.
II. 	ANALYSIS
Dr. Bitar raises two issues on appeal. 	He asserts
that the circuit court erred by permitting the jury to
consider Rahman’s medical malpractice claim and by
thereafter failing to set aside the jury verdict because:
(1) Rahman’s expert witness failed to state an opinion to a
reasonable degree of medical probability; and (2) Rahman’s
expert witness failed to present sufficient evidence to
establish that Dr. Bitar had breached the standard of care
and that the breach was a proximate cause of Rahman’s
injury. 	We will address the issues in that order.
In doing so, we are guided by well-established
principles of appellate review. 	Armed with a jury verdict
approved by the trial court, Rahman stands in “the most
favored position known to the law.” 	Ravenwood Towers, Inc.
v. Woodyard, 244 Va. 51, 57, 419 S.E.2d 627, 630 (1992).
She is entitled to have the evidence, and all inferences

10
that may reasonably be drawn from it, viewed in the light
most favorable to her. 	Norfolk S. Ry. Co. v. Rogers, 270
Va. 468, 478, 621 S.E.2d 59, 65 (2005); Evaluation Research
Corp. v. Alequin, 247 Va. 143, 147, 439 S.E.2d 387, 390
(1994). 	The judgment of the circuit court will not be set
aside unless it is “plainly wrong or without evidence to
support it.” 	Code § 8.01-680; see also Norfolk Southern,
270 Va. at 478, 621 S.E.2d at 65.
In a medical malpractice action, “a plaintiff must
establish not only that a defendant violated the applicable
standard of care, and therefore was negligent, the
plaintiff must also sustain the burden of showing that the
negligent acts constituted a proximate cause of the injury
or death.” 	Bryan v. Burt, 254 Va. 28, 34, 486 S.E.2d 536,
539-40 (1997); see also King v. Sowers, 252 Va. 71, 76, 471
S.E.2d 481, 484 (1996) (“[t]he relevant issue . . . is
whether the treatment rendered violated the applicable
standard of care and whether any such breach of the
standard of care was a proximate cause of the plaintiff’s
injury”). 	“ '[E]xpert testimony is ordinarily necessary to
establish the appropriate standard of care, to establish a
deviation from the standard, and to establish that such a
deviation was the proximate cause of the claimed
damages.’ ” 	Perdieu v. Blackstone Family Practice Ctr.,

11
Inc., 264 Va. 408, 420, 568 S.E.2d 703, 710 (2002) (quoting
Raines v. Lutz, 231 Va. 110, 113, 341 S.E.2d 194, 196
(1986)); see also Rogers v. Marrow, 243 Va. 162, 167, 413
S.E.2d 344, 346 (1992). 	To be admissible, such medical
expert testimony must be rendered to a “reasonable degree
of medical probability.” 	Pettus v. Gottfried, 269 Va. 69,
78, 606 S.E.2d 819, 825 (2005); see also Spruill v.
Commonwealth, 221 Va. 475, 479, 271 S.E.2d 419, 421 (1980)
(“[a] medical opinion based on a ‘possibility’ is
irrelevant, purely speculative and, hence inadmissible”).
This last principle is central to our consideration of
the first issue, whether the circuit court erred by
allowing the jury to consider the medical malpractice claim
since Dr. Jacobs never expressed his opinion to a
reasonable degree of medical probability. 	Dr. Bitar argues
not only that Dr. Jacobs’ testimony was based on
possibilities instead of probabilities but also that his
opinion lacked an adequate factual foundation and did not
take into account all the variables that could bear upon
the inferences to be drawn from the facts. 6 It is correct
6 According to Dr. Bitar, the variables that Dr. Jacobs
did not take into account were other possible causes for
the loss of tissue such as hematoma and/or seroma, and the
effect of flexing the operating table, Rahman’s sleeping
and standing positions after surgery, releasing sutures
post-operatively, and Rahman’s smoking.

12
that Dr. Jacobs never stated his opinion was based on a
reasonable degree of medical probability. 	Rahman, however,
contends that Dr. Bitar’s argument premised on this
omission in Dr. Jacobs’ testimony is actually an objection
that should have been raised contemporaneously with the
introduction of Dr. Jacobs’ testimony rather than at the
close of Rahman’s evidence, after her other witnesses had
testified. 7 We agree with Rahman’s position.
In Mueller v. Commonwealth, the defendant argued that
portions of a forensic pathologist’s testimony should not
have been admitted because the pathologist expressed
opinions that were not stated to a “reasonable degree of
medical certainty.” 	244 Va. 386, 410, 422 S.E.2d 380, 395
(1992), overruled in part on other grounds by Morrisette v.
Warden of Sussex I State Prison, 270 Va. 188, 202, 613
S.E.2d 551, 562 (2005). 	Because the defendant failed to
make a contemporaneous objection during the pathologist’s
testimony to the admission of objectionable opinions, we
refused to consider the argument on appeal. 	Mueller, 244
Va. at 410, 422 S.E.2d at 395.
Similarly, in Spruill, a psychiatrist testified that
there was a “possibility” that the defendant was insane on
7 Dr. Jacobs was Rahman’s first witness. 	She called
four other witnesses after Dr. Jacobs testified before

13
the day the crimes at issue were committed. 	221 Va. at
479, 271 S.E.2d at 421. 	We upheld the trial court’s
decision refusing to admit the testimony. 	Id. 	We stated,
“[a] medical opinion based on a ‘possibility’ is
irrelevant, purely speculative and, hence, inadmissible.”
Id. (emphasis added); accord State Farm Mut. Auto. Ins. Co.
v. Kendrick, 254 Va. 206, 208-09, 491 S.E.2d 286, 287
(1997); Fairfax Hosp. Sys. v. Curtis, 249 Va. 531, 535, 457
S.E.2d 66, 69 (1995). 	We reached the same conclusion in
Pettus, when a doctor’s answer to a question “offered an
expert opinion that was speculative in nature and
inadmissible because it was not stated to a reasonable
degree of medical probability.” 	269 Va. at 78, 606 S.E.2d
at 825 (emphasis added); see also Vasquez v. Mabini, 269
Va. 155, 160, 606 S.E.2d 809, 811 (2005) (expert testimony
founded upon assumptions having no factual basis is
inadmissible, and failure of the trial court to strike such
testimony upon a timely motion is error); Countryside Corp.
v. Taylor, 263 Va. 549, 553, 561 S.E.2d 680, 682 (2002)
(“expert testimony is inadmissible if the expert fails to
consider all the variables that bear upon the inferences to
be deduced from the facts observed”); John v. Im, 263 Va.
315, 319-20, 559 S.E.2d 694, 696 (2002) (expert testimony
resting her case.

14
is inadmissible if it is based on an inadequate foundation,
is speculative, or is founded on assumptions lacking a
sufficient factual basis).
In sum, these cases demonstrate that an objection
based on the fact that a medical expert’s opinion is not
stated to a reasonable degree of medical probability, lacks
an adequate factual foundation, or fails to consider all
the relevant variables challenges the admissibility of
evidence rather than the sufficiency of evidence. 	As this
Court, however, has stated, “[a]n objection to the
admissibility of evidence must be made when the evidence is
presented. 	The objection comes too late if the objecting
party remains silent during its presentation and brings the
matter to the court’s attention by a motion to strike made
after the opposing party has rested.” 	Kondaurov v.
Kerdasha, 271 Va. 646, ___, ___ S.E.2d ___, ___ (2006).
In some circumstances, a defect in an expert witness’
testimony may not be apparent until the testimony of that
witness is completed. 	Hence, an objection raised at that
first opportunity is timely. 	See Vasquez, 269 Va. at 162,
606 S.E.2d at 812-13 (objection was timely made at the end
of a witness’ testimony when his reliance on unfounded
assumptions became clear); Countryside Corp., 263 Va. at
553, 561 S.E.2d at 682 (objection at the conclusion of an

15
expert’s testimony when reliance on erroneous factual
premise became apparent was timely raised). 	In the present
case, however, as is true in most instances, the omission
rendering Dr. Jacobs’ testimony inadmissible was apparent
as specific questions were posed and Dr. Jacobs failed, in
answering those questions, to express his opinion to a
reasonable degree of medical probability as required by
established law. 	This defect certainly was obvious by the
end of the direct examination. 	Consequently, an objection
could have, and should have, been made at that time. 8
The general standards for timely motions to strike the
evidence for insufficiency are inapplicable to objections
regarding the admissibility of evidence. 	As we have
previously held: “[a] litigant may not, in a motion to
strike [the evidence], raise for the first time a question
of admissibility of evidence. 	Such motions deal with the
sufficiency rather than the admissibility of evidence.”
Woodson v. Commonwealth, 211 Va. 285, 288, 176 S.E.2d 818,
821 (1970); see also Poole v. Commonwealth, 211 Va. 258,
260, 176 S.E.2d 821, 823 (1970).
Since Dr. Bitar did not move to strike Dr. Jacobs’
testimony or raise any objection to its admissibility until
8 In some instances, an objection to the admissibility
of evidence can be raised in a pre-trial motion.

16
after Dr. Jacobs was excused and had returned to New York,
and the testimony of several other witnesses was presented,
the objection was too late. 	Although Dr. Bitar couches the
first issue as a challenge to the sufficiency of the
evidence, it presents only a question regarding the
admissibility of Dr. Jacobs’ testimony, which was waived
because the objection was not timely raised during the
trial. 9 See TransiLift Equip., Ltd. v. Cunningham, 234 Va.
84, 91-92, 360 S.E.2d 183, 187-88 (1987) (if a party does
not timely object to the admission of evidence, the
objection is waived).
Thus, with regard to the first issue, we conclude that
the circuit court did not err by allowing the jury to
consider Rahman’s medical malpractice claim merely because
Dr. Jacobs did not express his opinion to a reasonable
degree of medical probability. 	Dr. Jacobs’ testimony,
having been admitted without objection, was properly
considered by the jury.
9 Dr. Bitar argues on brief that, if he had to object
to the admissibility of Dr. Jacobs’ testimony
contemporaneously with its introduction, he would be
presented with “[a]n untenable dilemma with ethical
implications.” 	He contends that such a rule would alert a
plaintiff that the opinion of her only expert was not
admissible and that, as a defendant, he would lose the
opportunity to move to strike the plaintiff’s evidence on
the basis that she had not proven a prima facie case. 	This
argument has no merit.

17
[I]f a litigant sits by and permits evidence
to go to the jury which the court, if it had been
objected to, would have excluded, the jury have
the right and it is their duty to consider it
along with all the evidence and give it such
weight as they think it is entitled to.
Id. (quoting Newberry v. Watts, 116 Va. 730, 736, 82 S.E.
703, 705 (1914)).
We now consider the second issue, whether the evidence
was sufficient to establish that Dr. Bitar breached the
standard of care and that such breach was a proximate cause
of Rahman’s injury. 	Our resolution of that issue turns on
the testimony of Dr. Jacobs, who was Rahman’s only medical
expert witness.
In addressing the issue, we are mindful that Dr. Bitar
challenged the sufficiency of the evidence at the close of
Rahman’s evidence, at the close of all the evidence, and in
a motion to set aside the jury verdict. 	The standard of
appellate review, however, is the same in each instance.
[W]here the trial court has declined to strike
the plaintiff’s evidence or to set aside a jury
verdict, the standard of appellate review in
Virginia requires this Court to consider whether
the evidence presented, taken in the light most
favorable to the plaintiff, was sufficient to
support the jury verdict in favor of the
plaintiff.
County of Giles v. Wines, 262 Va. 68, 76 & n.*, 546 S.E.2d
721, 725 & n.* (2001) (Lacy, J., dissenting); see also
Lumbermen’s Underwriting Alliance v. Dave’s Cabinet, Inc.,

18
258 Va. 377, 380-81, 520 S.E.2d 362, 364-65 (1999);
Claycomb v. Didawick, 256 Va. 332, 335, 505 S.E.2d 202, 204
(1998); Austin v. Shoney’s, Inc., 254 Va. 134, 138, 486
S.E.2d 285, 287 (1997).
Dr. Jacobs opined that Dr. Bitar, in planning and
performing the abdominoplasty, breached the standard of
care because Dr. Bitar pre-determined the amount of tissue
to be removed. 	Continuing, Dr. Jacobs stated that “too
much tissue was removed leading to the suturing of the flap
under such tension that the blood supply was compromised
and the tissue eventually died.” 	This testimony
established a breach of the standard of care by Dr. Bitar
and that such breach was a proximate cause of Rahman’s
injury. 	See Brown v. Koulizakis, 229 Va. 524, 532, 331
S.E.2d 440, 446 (1985) (in a medical malpractice action,
the plaintiff must establish that the defendant breached
the applicable standard of care and that the negligent acts
were a proximate cause of the injury). 	In other words, Dr.
Jacobs’ testimony provided credible evidence that supports
the jury verdict. 	“A trial court is authorized to set
aside a jury verdict only if it is plainly wrong or without
credible evidence to support it.” 	Bussey v. E.S.C. Rests.,
Inc., 270 Va. 531, 534, 620 S.E.2d 764, 766 (2005).

19
Contrary to Dr. Bitar’s argument, Dr. Jacobs did not
base his opinion on the fact that Rahman suffered
complications after her surgery. 	Instead, in responding to
a question whether Dr. Bitar would have breached the
standard of care if he had merely used the pre-operative
markings on Rahman’s abdomen as a guideline, Dr. Jacobs
stated, “I believe . . . with a result of this magnitude
something went horribly wrong.” 	Furthermore, in arguing
his motion to strike Rahman’s evidence at the close of all
the evidence, Dr. Bitar acknowledged that Dr. Jacobs opined
that Dr. Bitar erred because he pre-planned the amount of
tissue to remove and then took out more tissue than he
should have, thereby causing excess tension upon the
abdominal flap, which resulted in inadequate blood supply,
death of the tissue, and “a cosmetically displeasing
appearance to [Rahman’s] lower abdomen.”
Thus, we conclude that the circuit court did not err
in refusing to strike Rahman’s evidence or to set aside the
jury verdict in her favor. 	We cannot say the judgment was
“plainly wrong or without evidence to support it.” 	Code
§ 8.01-680.
CONCLUSION
Since Dr. Bitar failed to raise a timely objection to
the admission of Dr. Jacobs’ testimony, the circuit court

20
did not err in allowing the jury to consider Rahman’s
medical malpractice claim even though Dr. Jacobs never
stated his opinion to a reasonable degree of medical
probability. 	Viewing the evidence in the light most
favorable to Rahman, we conclude that Rahman presented
sufficient evidence to establish that Dr. Bitar breached
the standard of care and that the breach was a proximate
cause of her injury.
For these reasons, we will affirm the judgment of the
circuit court.
Affirmed.