                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Beales, Decker and Russell
PUBLISHED


            Argued at Richmond, Virginia


            VIRGINIA BOARD OF MEDICINE AND
             VIRGINIA DEPARTMENT OF HEALTH PROFESSIONS1
                                                                               OPINION BY
            v.     Record No. 1291-16-2                                 JUDGE WESLEY G. RUSSELL, JR.
                                                                              MARCH 14, 2017
            LEILA HADAD ZACKRISON, M.D.


                                FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                             John Marshall, Judge

                           Erin L. Barrett, Assistant Attorney General (Mark R. Herring,
                           Attorney General; Cynthia V. Bailey, Deputy Attorney General;
                           Allyson K. Tysinger, Senior Assistant Attorney General, on brief),
                           for appellants.

                           Jacques G. Simon (Greg Skall; Jason C. Hicks; Womble Carlyle,
                           Sandridge & Rice LLP, on brief), for appellee.


                   The Board of Medicine appeals the decision of the circuit court vacating the Board’s case

            decision and order disciplining Dr. Leila Hadad Zackrison, appellee, for violating certain laws

            governing the practice of medicine and surgery by physicians licensed in Virginia. The Board




                   1
                      This case arises from an order of the Board of Medicine. The Board is one of several
            licensing/regulatory boards that fall under the auspices of the Department of Health Professions.
            Code § 54.1-2503. While the Department generally serves to manage the administrative
            functions of the boards it oversees, Code § 54.1-2505, the Board is vested with the authority to
            regulate the practice of medicine, see Code §§ 54.1-2900 to -2980, to include the ability to
            investigate and discipline physicians. Code § 54.1-2400(7), (9). Although nominally a party, the
            Department took no action against Dr. Zackrison and was not ordered by the circuit court to take
            any action or refrain from taking any action as a result of the circuit court’s review of the matter.
            Furthermore, Dr. Zackrison never specifically challenged an action of the Department,
            appropriately challenging the decision of the Board. Because the Board is the real party in
            interest whose order is the subject of this appeal, references to parties in this opinion will be
            limited to the Board and Dr. Zackrison.
specifically challenges the ruling of the circuit court holding that the Board violated Dr. Zackrison’s

due process right to a meaningful opportunity to be heard when it determined that Dr. Zackrison did

not qualify as an expert witness. Although we find that the Board erred in prohibiting Dr. Zackrison

from testifying as an expert, we, for the reasons that follow, reverse the decision of the circuit court

and reinstate the Board’s finding of a violation and the sanction it imposed.

                                           BACKGROUND

        The Board is charged with the licensure of physicians. Code §§ 54.1-2902, 54.1-2911 to

-2928.1, 54.1-2929 to -2941. The Board specifically may deny, suspend or revoke a medical

license or reprimand a physician based on “unprofessional conduct.” Code § 54.1-2915.

“[U]nprofessional conduct” includes the “intentional or negligent conduct in the practice of any

branch of the healing arts that causes or is likely to cause injury to a patient,” Code

§ 54.1-2915(3), or conducting a practice in a manner dangerous to patients or the public, Code

§ 54.1-2915(13). To carry out these functions, the Board is empowered to investigate, prosecute,

and adjudicate potential violations by individual physicians.2 Code § 54.1-2400(7), (9), (11).

        Pursuant to these statutory responsibilities, the Commonwealth instituted a proceeding

regarding Dr. Zackrison, a graduate of Loma Linda University Medical School. Dr. Zackrison

completed both a residency in internal medicine and a fellowship in rheumatology at

Georgetown University. She has been board certified in both internal medicine and

rheumatology since the 1990s and, at all times pertinent to the issues in this appeal, has been a

Fellow of both the American College of Physicians and the American College of Rheumatology.

Additionally, she sought certifications/credentials in herbal therapy and homeopathy, anti-aging


        2
         Different arms of the Board prosecute and adjudicate the cases. Unless context suggests
otherwise, “we use the term ‘Board’ when referring in this opinion to the Virginia Board of
Medicine acting . . . in its adjudicative capacity and the term ‘Commonwealth’ when referring to
the Virginia Board of Medicine acting in its prosecutorial capacity.” Goad v. Va. Bd. of Med.,
40 Va. App. 621, 623 n.1, 580 S.E.2d 494, 495 n.1 (2003).
                                                 -2-
medicine, and other areas, including pursuing a Master’s degree in Metabolic and Nutritional

Medicine. Without interruption, she has been licensed by the Board to practice medicine in Virginia

since 1991.

        In her practice, Dr. Zackrison has treated over 25,000 patients with rheumatological

diseases. She started treating patients with Lyme disease in 1999, initially seeing 1,500 per year and

seeing approximately 600 per year since 2005.

        By letter dated August 11, 2014, the Commonwealth notified Dr. Zackrison that an

administrative hearing was to be held before the Board to address allegations that she had violated

“certain laws governing the practice of medicine in Virginia” in her treatment of “Patient A” over

the course of several years. Attached to the notice was a Statement of Particulars wherein the

Commonwealth alleged that Dr. Zackrison diagnosed Patient A with several conditions, including

Lyme disease and infections, without adequate support in the medical records to make such a

diagnosis; provided inappropriate treatment, particularly in the form of extensive antibiotic use; and

failed to maintain adequate records documenting her care.

        A two-day review hearing began on February 19, 2015, and the Board stressed that it

“look[ed] at this [case] as a standard of care case for a single patient, nothing more, nothing less.”

The Commonwealth first offered the testimony of a Department of Health investigator and then

called two physicians to testify as expert witnesses: Dr. William Petri, Jr., an infectious disease

specialist, and Dr. Janet Lewis, a rheumatologist.3 The expert opinions and curricula vitae of these

witnesses were admitted into evidence without objection. The Commonwealth’s experts testified to

their opinions regarding the standard of care applicable in Patient A’s case. They described their

views on which tests were appropriate to administer and what conclusions should be drawn from the


        3
         The Board is authorized by statute to retain experts to assist in its investigations and
prosecutions. Code § 54.1-2925.

                                                  -3-
results of those tests. They opined Dr. Zackrison’s testing and treatment methods did not meet the

standard of care applicable to Patient A’s case. In forming their opinions, the Commonwealth’s

experts relied heavily on guidelines promulgated by the Infectious Disease Society of America

(“IDSA”), a private organization of health care professionals often cited by the federal Centers for

Disease Control and Prevention. IDSA has published peer-reviewed guidelines related to the

diagnosis and treatment of Lyme disease.

        After the Commonwealth’s presentation of evidence, Dr. Zackrison testified in her own

defense. Her evidence included two discs, one featuring a “slide presentation from Dr. Zackrison

regarding each of the points in the statement of charges” and the other containing peer-reviewed

materials “backing up the slide presentation.” Dr. Zackrison’s curriculum vitae also was on one of

the discs. During Dr. Zackrison’s testimony, her counsel sought to qualify her as an expert on the

practice of rheumatology and the applicable standard of care. After counsel’s voir dire exploring

her academic and practice credentials, the Board, sua sponte, stated, “Dr. Zackrison is the

respondent. You have an expert who is going to testify tomorrow. [The respondent] needs to focus

on particulars of the statements. . . . [S]he can tell us what she does in her practice; she has an expert

tomorrow.” The following colloquy ensued:

                Counsel: So she is not admitted as both an expert and the
                respondent?

                Board: I would say no.

                Counsel: Despite her —

                Board: She is admitted as the respondent. She’s welcome to talk
                to us about what she does in her practice. She’s welcome to
                address the statement of particulars. Tomorrow you have an expert
                who will be testifying.

                Counsel: Because I believe that when we offered the C.V., we
                identified her as an expert in rheumatology.



                                                  -4-
               Board: She certainly is a rheumatologist. . . . She’s responding,
               she’s here today as the respondent. . . . We accept her credentials
               as a board certified rheumatologist. . . . We accept her credentials
               as a physician. She’s the respondent and needs to respond to these
               particular charges. . . . We accept her board certification. You
               have an expert who is testifying tomorrow, so we are accepting her
               as the respondent and as a board certified rheumatologist. . . .

               Counsel: . . . I just wanted to make the point that she was offered
               as a respondent and as an expert in her field, but I understand your
               ruling of rejecting her as an expert in the field.

       Dr. Zackrison proceeded to address the allegations. Her testimony included references to

the standard of care she applied with respect to Patient A’s varied symptomology. Her testimony

also included references to the materials she had introduced via disc. The Board at one point

interjected, “We’ve had the literature. And as I said, the opportunity for expert testimony and to

rebut those experts today will come from Dr. Horowitz tomorrow. It’s [her] opportunity today to

tell us why she did what she did with this particular patient.” Ultimately, Dr. Zackrison’s counsel

emphasized her objection to the Board’s ruling:

               Mr. Chairman, we are certainly going to make a record this time
               around, and I wanted to make sure that the record is made.
               Number one, you are precluding Dr. Zackrison from testifying as
               an expert here just because she’s a respondent. I am aware of no
               rule, no statute and no case law that supports that particular ruling.
               And she is giving — she[] stands accused here of doing
               non-evidence based medicine. And what she wants to discuss is
               why she — just like you said, she wants to discuss why she did
               something and how she did it, and she’s addressing specifically
               what the witnesses, what the State witnesses said, you are
               precluding her, telling her not to read the expert testimony. So I
               want to understand the ruling correctly for the record. Is she
               precluded from testifying as an expert because she is a respondent?

The Board responded, “Yes,” eventually adding that

               she may testify within her scope of practice as a board certified
               rheumatologist. She may give her opinion, which we give weight
               to because she’s a board certified rheumatologist. You have an
               expert who is coming tomorrow to testify, and we are expecting
               [Dr. Zackrison] to respond to these particular charges as the
               respondent.
                                                  -5-
       After additional back and forth, counsel sought further clarity, asking, “I wanted to make

sure that I know your ruling that Dr. Zackrison is precluded here from testifying as an expert in

rheumatology on her own behalf because she is the respondent; that was your ruling, correct?”

In response, the following exchange occurred:

               Board: Dr. Zackrison is the respondent. She has experts and we
               are accepting her testimony as a board certified rheumatologist.

               Counsel: But the ruling is that she cannot testify as an expert in
               rheumatology today?

               Board: She is a rheumatologist. We are accepting her testimony
               as a rheumatologist. I’m not going to play word games with
               you. . . . She’s here as the respondent . . . .

               Counsel: And as I’m offering her as the respondent and as an
               expert in rheumatology.

       Counsel for the Board then interjected:

               As the respondent, she is in a similar situation to even though this
               is not a criminal proceeding, to a defendant in a criminal trial, she
               would testify as herself. As the defendant, she wouldn’t
               simultaneously testify as an expert witness. She is testifying here
               as the treating physician. She’s responding to the statement of
               particulars here as the treating physician. The [Board] recognizes
               her credentials and her background. I’m not quite sure why [the
               Board’s] ruling is not clear, but hopefully I have shed some light
               on it.

Dr. Zackrison’s counsel then inquired, “[W]hich statute and which regulation of Virginia

supports the fact that a respondent is excluded from testifying as an expert witness on her

behalf?” The Board’s counsel responded, “There is no rule, there is no statute, but this Board is

proceeding in that manner.”

       Dr. Zackrison then continued to explain her diagnostic and treatment methods related to

Patient A. She emphasized her reliance on guidelines offered by the International Lyme Disease

and Associated Diseases Society (“ILADS”), another private physician-based organization that

has promulgated guidelines regarding the diagnosis and treatment of Lyme disease. She
                                                 -6-
explained that in some instances she applied the standards of care recommended by both

organizations, and she stated her disagreements with Dr. Petri with respect to the standard of care

regarding tick-borne diseases generally and regarding Patient A specifically. She emphasized

her clinical approach.

       At times, without objection, Dr. Zackrison provided responses regarding the appropriate

standard of care. Specifically, she gave expert opinion testimony regarding the standards

promulgated by both IDSA and ILADS and how her care and treatment comported with those

standards. On occasion, she made references to the literature that she had submitted.4 At no

point, however, did she proffer the specifics of how her testimony would have been different if

the Board had accepted her as an expert.

       When Dr. Zackrison’s testimony concluded, Dr. Horowitz was qualified as an expert and

testified on Dr. Zackrison’s behalf. Dr. Horowitz, considered a national expert on tick borne

diseases, including Lyme disease, testified to the standard of care as applied to the unique

circumstances of Patient A and offered a rebuttal to the Board’s expert testimony. Throughout

his testimony, he referenced the guidelines promulgated by both IDSA and ILADS and the

medical literature that had been submitted. His literature references were so ubiquitous that the

Board advised him that it “assume[s] [for] everything you say there is an article [submitted] in

here that supports it. You need not quote” the specific articles. On cross-examination, the

Commonwealth elucidated that, although Dr. Horowitz is trained in internal medicine, he had not

completed a fellowship in either rheumatology or infectious diseases.

       On February 25, 2015, the Board issued its decision. In its order, the Board stated that it

“found the opinions presented by the Commonwealth’s experts to provide convincing evidence


       4
         A review of the record reveals that, during her testimony, Dr. Zackrison referenced the
medical literature to bolster her position on at least ten occasions.

                                               -7-
that Dr. Zackrison’s care of Patient A fell below the standard of care.” The Board further noted

that it “reviewed and considered testimony from Dr. Richard Horowitz, a tick-borne disease

expert who was presented on behalf of Dr. Zackrison, [and] reviewed and considered

Dr. Horowitz’s presentation on tick-borne diseases and his review of Patient A’s care.” The

Board “concluded that Dr. Horowitz’s testimony was not sufficient to refute the

Commonwealth’s expert testimony.” Based on its findings, the Board found several violations

of Code § 54.1-2915(A)(3) and (13) arising from Dr. Zackrison’s treatment of Patient A.5 As a

result, the Board issued Dr. Zackrison a reprimand and placed her license on conditional

probation, whereby she was required to complete additional hours of continuing medical

education. Dr. Zackrison’s license to practice medicine was neither suspended nor revoked, and

she was permitted to continue to treat patients during the period of conditional probation. She

appealed the Board’s disciplinary action to the circuit court.

       On appeal to the circuit court, Dr. Zackrison, among other contentions, argued: “The

procedural rulings made by the . . . Board . . . are unsupported by Virginia law and by the record.

Among those holdings were the decision to preclude Dr. Zackrison from being recognized as an

expert and being accorded expert witness status while testifying on her behalf, even though she was

so designated.” Dr. Zackrison further alleged the Board’s actions constituted a “violation of

constitutional due process rights to . . . ‘an opportunity to be heard in a meaningful manner.’”

       The circuit court issued its ruling by order dated July 17, 2016. The circuit court found that

“the Virginia Board of Medicine violated [Dr. Zackrison’s] due process right to a meaningful

opportunity to be heard by refusing to allow [her] to testify as a rheumatology expert and limiting


       5
         The Board found Dr. Zackrison’s treatment of Patient A constituted “[i]ntentional or
negligent conduct in the practice of [medicine] that causes or is likely to cause injury to a patient
or patients” and further found that she had been “[c]onducting h[er] practice in such a manner as
to be a danger to the health and welfare of h[er] patients or to the public.” Code § 54.1-2915(A).

                                                 -8-
her presentation of evidence in her own defense to evidence as a lay witness.” Having found a

constitutional violation, the circuit court vacated the Board’s order and remanded the matter to the

Board for further proceedings. The Board objected to the order and noted its appeal.

                                            ANALYSIS

                                  I. Scope and Standard of Review

       This case arises from the appeal of the Board, an administrative agency subject to the

Virginia Administrative Process Act (“VAPA”), Code §§ 2.2-4000 to -4032. Whether in a circuit

court or this Court,6 VAPA requires that

               the party complaining of agency action . . . designate and
               demonstrate an error of law subject to review by the court. Such
               issues of law include: (i) accordance with constitutional right,
               power, privilege, or immunity, (ii) compliance with statutory
               authority, jurisdiction limitations, or right as provided in the basic
               laws as to subject matter, the stated objectives for which
               regulations may be made, and the factual showing respecting
               violations or entitlement in connection with case decisions,
               (iii) observance of required procedure where any failure therein is
               not mere harmless error, and (iv) the substantiality of the
               evidentiary support for findings of fact. . . . The duty of the court
               with respect to the issues of law shall be to review the agency
               decision de novo.

Code § 2.2-4027.

       In conducting this review of agency action under VAPA, both a circuit court and this Court

are guided by certain familiar principles. Regarding the Board’s factual determinations, our review

is limited to determining whether substantial evidence supports the Board’s conclusion. Id. In

contrast, questions of law are reviewed de novo. Id. We are, however, deferential to legal



       6
         “Under VAPA, the circuit court reviews the agency’s action in a manner ‘equivalent to an
appellate court’s role in an appeal from a trial court.’” Boone v. Harrison, 52 Va. App. 53, 61, 660
S.E.2d 704, 708 (2008) (quoting Mattaponi Indian Tribe v. Dep’t of Envtl. Quality ex rel. State
Water Control Bd., 43 Va. App. 690, 707, 601 S.E.2d 667, 676 (2004)), aff’d sub nom. Alliance to
Save the Mattaponi v. Commonwealth Dep’t of Envtl. Quality ex rel. State Water Control Bd., 270
Va. 423, 621 S.E.2d 78 (2005)).
                                                   -9-
conclusions reached by an agency when “the question involves an interpretation which is within

the specialized competence of the agency and the agency has been entrusted with wide discretion

by the General Assembly . . . .” Evelyn v. Commonwealth Marine Res. Comm’n, 46 Va. App.

618, 624, 621 S.E.2d 130, 133 (2005) (citation omitted). Conversely, if “the legal issues require

a determination by the reviewing court whether an agency has . . . accorded constitutional rights,

failed to comply with statutory authority, or failed to observe required procedures, less

deference is required and the reviewing courts should not abdicate their judicial function and

merely rubber-stamp an agency determination.” Johnston-Willis, Ltd. v. Kenley, 6 Va. App.

231, 243, 369 S.E.2d 1, 7-8 (1988) (emphasis added). Because both the Board’s decision

refusing to accept Dr. Zackrison as an expert and whether that decision violated Dr. Zackrison’s

constitutional rights present such questions, our review, like that of the circuit court, is conducted

de novo.

                   II. The Board’s Refusal to Accept Dr. Zackrison as an Expert

        During the proceedings before the Board, the Board provided only one reason for refusing to

accept Dr. Zackrison as an expert witness regarding rheumatology and the standard of care—that

she would be serving as expert in her own defense. At the hearing, the Board was asked to identify

the provision of Virginia law that prohibited an otherwise qualified respondent from serving as an

expert and candidly responded that “[t]here is no rule [and] there is no statute . . . .” Similarly,

during oral argument before this Court, the Board conceded that it was aware of no authority for

such a prohibition.7


        7
         At times before this Court, the Board argued that there should be a per se prohibition on
a respondent serving as an expert, but, at other times, posited that whether a respondent could
testify was left to the discretion of the Board without any objective standard governing the
decision. As discussed below, not only is there no basis in Virginia law for a rule of per se
disqualification, Virginia law provides the opposite. Furthermore, allowing the Board to
disqualify a witness on nothing more than a whim is the very definition of arbitrary and
capricious, and therefore, is similarly inconsistent with Virginia law. See James v. City of Falls
                                                - 10 -
       At common law, there was a prohibition on serving as one’s own witness, expert or

otherwise. However, Virginia long ago removed the prohibition. As Professors Friend and Sinclair

have observed:

                         As trial by combat gave way to court-based decisions about
                 parties’ rights in the late Middle Ages, evidence in the form of
                 sworn testimony by interested parties was forbidden out of fear
                 that an interested witness would necessarily commit perjury. This
                 was true from the 1600’s to the early 1800’s in Great Britain.
                 American law prior to 1850 was the same: interested parties were
                 not allowed to testify in their own cases for fear of perjury. In
                 cases involving one deceased or incapacitated party, this meant
                 that the “interested” survivor could not testify at all.

                         In the mid-1800’s reforms in England abolished (by statute)
                 the common law disqualification of interested witnesses.
                 American jurisdictions started almost immediately to abolish the
                 disqualification of interested witnesses. Virginia first did so in a
                 statute passed in 1866, ending the common law disqualification of
                 witnesses for “interest.”

                       In Virginia today, parties and interested persons are
                 competent to testify as witnesses.

Charles E. Friend & Kent Sinclair, The Law of Evidence in Virginia § 10-10 (7th ed. 2012)

(emphasis added) (footnotes omitted).

       The current version of the Virginia statute, Code § 8.01-396, provides, in pertinent part,

that

                 [n]o person shall be incompetent to testify because of interest, or
                 because of his being a party to any civil action; but he shall, if
                 otherwise competent to testify, and subject to the rules of evidence
                 and practice applicable to other witnesses, be competent to give
                 evidence in his own behalf . . . .




Church, 280 Va. 31, 42, 694 S.E.2d 568, 574 (2010) (holding that an action is “‘arbitrary and
capricious’ when it is willful and unreasonable and taken without consideration or in disregard of
facts or law or without determining principle, or when the deciding body departed from the
appropriate standard in making its decision” (emphasis added)).

                                                - 11 -
The Supreme Court has recognized that the statute’s reach is not limited to lay witness

testimony, specifically holding that, if otherwise qualified, a physician may serve as his own

expert in contested litigation. State Farm Mut. Auto. Ins. Co. v. Kendrick, 254 Va. 206, 209, 491

S.E.2d 286, 288 (1997) (citing Code § 8.01-396 as grounds for reversing a trial court’s refusal to

allow the plaintiff, a medical doctor who was otherwise qualified to be an expert, to give expert

testimony because his testimony would be “‘self-serving’”).

       Although the formal rules of evidence are relaxed in proceedings under VAPA, Williams

v. Commonwealth Real Estate Bd., 57 Va. App. 108, 130, 698 S.E.2d 917, 928 (2010), we can

think of no reason why this near universally accepted principle, that a party may serve as his own

witness, should not apply. Accordingly, the Board erred in refusing to accept Dr. Zackrison as

an expert solely on the basis that she was also the respondent.8

                         III. Dr. Zackrison’s Qualifications as an Expert

       The fact that Virginia law allows a person to serve as his or her own expert does not

mean that every person is entitled to give expert testimony. Code § 8.01-396 specifically

provides that a person may serve as a witness on his own behalf only “if otherwise competent to

testify” and that the witness remains “subject to the rules of evidence and practice applicable to

other witnesses . . . .” Thus, although the Board’s only stated reason for refusing to accept




       8
          The issue is one of qualification and not weight. Although the Board cannot refuse to
allow an otherwise qualified respondent to testify as an expert, it is free to consider the bias
inherent in serving as one’s own expert in determining the weight to afford the expert opinion
offered. Thus, while we recognize that an otherwise qualified respondent may choose to serve as
his or her own expert, we do not comment on the wisdom of such a choice. Cf. Kay v. Ehrler,
499 U.S. 432, 437-38 (1991) (recalling “[t]he adage that ‘a lawyer who represents himself has a
fool for a client’”).

                                               - 12 -
Dr. Zackrison as an expert was that she was the respondent, she was entitled to testify as an

expert only if she was otherwise qualified.9

       In general, Virginia law provides that, to serve as an expert witness, one

               must possess sufficient knowledge, skill, or experience regarding
               the subject matter of the testimony to assist the trier of fact in the
               search for truth. Generally, a witness possesses sufficient expertise
               when, through experience, study or observation the witness
               acquires knowledge of a subject beyond that of persons of common
               intelligence and ordinary experience.

Fitzgerald v. Commonwealth, 273 Va. 596, 601, 643 S.E.2d 162, 164 (2007) (internal quotation

marks and citations omitted). “[A]ll that is necessary for a witness to qualify as an expert is that

the witness have sufficient knowledge of the subject to give value to the witness’s opinion.”

Velazquez v. Commonwealth, 263 Va. 95, 103, 557 S.E.2d 213, 218 (2002). However, “certain

subject matter is exclusive to a particular field of expertise such that only witnesses trained as

professionals in that field of expertise are qualified to render expert opinions regarding that

subject matter.” Fitzgerald, 273 Va. at 602, 643 S.E.2d at 164.

       Recognizing that the practice of medicine is such a field, the General Assembly has

adopted a more stringent qualification standard for experts in medical malpractice cases. In such

cases, which like the instant proceeding before the Board involve questions regarding the

appropriate standard of care, expert qualification is governed by Code § 8.01-581.20.

Code § 8.01-581.20, provides, in pertinent part, that

               [a]ny health care provider who is licensed to practice in Virginia
               shall be presumed to know the statewide standard of care in the
               specialty or field of practice in which he is qualified and
               certified. . . . A witness shall be qualified to testify as an expert on
               the standard of care if he demonstrates expert knowledge of the

       9
         If Dr. Zackrison was not qualified to testify as an expert for reasons wholly unrelated to
her status as the respondent, the Board’s decision could be affirmed under the “right result/wrong
reason” doctrine, which applies in appeals under VAPA. Reston Hosp. Ctr., LLC v. Remley, 63
Va. App. 755, 771 n.9, 763 S.E.2d 238, 247 n.9 (2014).

                                                - 13 -
               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.

       Board proceedings, however, are not governed by either the rules of evidence or the

Medical Malpractice Act; rather, normal rules regarding the admissibility of the evidence are

relaxed, Williams, 57 Va. App. at 130, 698 S.E.2d at 928, allowing the Board some flexibility in

determining what qualifications a person must possess before qualifying to serve as an expert.

As noted above, this flexibility is not unbounded because a Board’s determination, regarding

who qualifies as an expert or anything else, is arbitrary and capricious when it is made “without

determining principle, or when the deciding body departed from the appropriate standard in

making its decision.” James v. City of Falls Church, 280 Va. 31, 42, 694 S.E.2d 568, 574 (2010)

(emphasis added).

       At oral argument in this Court, the Board was asked what standard the Board applies to

determine whether a proffered expert is qualified to provide expert testimony in Board

proceedings. After initially stating that “we would have to make one up [as we stand] here,” the

Board indicated that the appropriate standard would consist of “the qualifications for a standard

testifying expert” as illustrated by case law delineating those standards.

       Given the deference accorded the Board under VAPA, the ultimate decision of what

standard should be applied belongs to the Board; it is free to adopt the traditional Virginia

standard, the more stringent medical malpractice standard, or a lesser standard so long as the

chosen standard is rational, is otherwise consistent with Virginia law, and provides “determining

principle[s],” James, 280 Va. at 42, 694 S.E.2d at 574, that can be applied consistently and that

do not reduce the qualification decision to mere whim.




                                               - 14 -
       Although the Board ultimately can choose the standard to apply, we can conclude from

this record that Dr. Zackrison was qualified to provide expert testimony on the practice of

rheumatology under any reasonable standard the Board could adopt. After all, she continuously

had been licensed by the Board to practice medicine in the Commonwealth for more than two

decades, had practiced rheumatology for a number of years, and carried board certifications in

both internal medicine and rheumatology. As the Board acknowledged at the hearing, it

“accept[ed] her credentials as a board certified rheumatologist . . . [and] as a physician.” She had

these credentials in common with the Commonwealth’s rheumatology expert, Dr. Lewis, whom

the Board accepted as an expert in rheumatology. In short, under any reasonable standard that

the Board could adopt, Dr. Zackrison is sufficiently qualified by education, training, and

experience to give standard of care testimony regarding the practice of rheumatology.10

       Acknowledging that Dr. Zackrison met the stringent qualification standards for expert

testimony found in Code § 8.01-581.20, the Board argues on appeal that the Code section only

gives rise to a presumption that a licensed, practicing physician is familiar with the standard of

care in his or her specialty and that the Board rebutted the presumption. To reach this

conclusion, the Board contends that its ultimate finding that Dr. Zackrison violated the standard

of care regarding the treatment of a single patient demonstrates a lack of knowledge of the

standard of care. This position suffers from multiple flaws.

       First, the Board confuses a question of qualification with conduct. The fact that a

physician, by education, training, and experience, has sufficient knowledge to be qualified to

give testimony regarding the standard of care does not guarantee that her conduct will always


       10
           We recognize that “[t]he question whether a witness is qualified to testify as an expert
is largely within the sound discretion” of the lower tribunal; however, “[a] decision to exclude a
proffered expert opinion will be reversed on appeal . . . when[, as here,] it appears clearly that the
witness was qualified.” Jackson v. Qureshi, 277 Va. 114, 121, 671 S.E.2d 163, 166-67 (2009)
(internal quotation marks and citations omitted).
                                                - 15 -
comply with that standard in every instance. Similarly, the failure in a particular case to comply

with the standard of care does not erase the education, training, experience, and knowledge that

qualifies one as an expert generally.

        Second, and perhaps more importantly, the Board’s argument is entirely circular.

Because a decision regarding whether Dr. Zackrison was qualified to give expert testimony

necessarily had to be made before the Board reached its ultimate conclusion regarding the

standard of care, that conclusion cannot be used to support the decision to refuse to accept

Dr. Zackrison as an expert. The Board’s ultimate conclusion could only be reached after

consideration of all of the evidence, and thus, was not known to the Board when it decided

whether or not to accept Dr. Zackrison as an expert. In short, the Board cannot justify its

decision to exclude Dr. Zackrison as an expert by pointing to the conclusion it reached in the

absence of the evidence it excluded.

        Having concluded that the Board erred in refusing to accept Dr. Zackrison as an expert,

we now must address whether that error constituted a violation of a “constitutional right, power,

privilege, or immunity” or was otherwise an error of law or “procedure where any failure therein

is not mere harmless error.” Code § 2.2-4027; LifeCare Med. Transps., Inc. v. Va. Dep’t of

Med. Assistance Servs., 63 Va. App. 538, 552-54, 759 S.E.2d 35, 42-43 (2014) (reviewing

exclusion of evidence in a VAPA proceeding as possible “procedural error”).

                                         IV. Due Process Claim

        Dr. Zackrison argues and the circuit court found that the Board’s refusal to accept

Dr. Zackrison to testify as an expert violated her constitutionally protected right to due process.

We disagree.

        Section 1 of the Fourteenth Amendment to the United States Constitution provides, in

pertinent part, that “[n]o state . . . shall . . . deprive any person of life, liberty, or property,

                                                   - 16 -
without due process of law . . . .” Because a physician may not practice medicine in Virginia

without a license, Code §§ 54.1-2902, 54.1-2929, a license to practice medicine is a significant

property interest, and “[t]he due process clause protects a physician’s property interest in his

professional license.” Simopoulos v. Va. Bd. of Med., 644 F.2d 321, 333-34 (4th Cir. 1981)

(Butzner, J., dissenting); see also Schware v. Bd. of Bar Exam’rs of N.M., 353 U.S. 232, 238-39

(1957) (“A State cannot exclude a person from the practice of law or from any other occupation

in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the

Fourteenth Amendment.”). Accordingly, before taking disciplinary action against Dr. Zackrison

related to her practice of medicine, the Board was required to provide Dr. Zackrison with due

process.

         Our Supreme Court has identified “the minimum requirements of constitutional due

process which must attend administrative hearings: timely and adequate notice, the right to

confront adverse witnesses and present one’s own evidence, the right to the assistance of retained

counsel, and an impartial decision-maker.” Hladys v. Commonwealth, 235 Va. 145, 147, 366

S.E.2d 98, 99 (1988) (citing Goldberg v. Kelly, 397 U.S. 254 (1970)). The essence of

Dr. Zackrison’s due process claim is that the Board’s refusal to accept her as an expert prevented

her from presenting her own evidence, and thus, denied her a meaningful opportunity to be

heard.

         As Dr. Zackrison correctly concedes, not every erroneous exclusion of evidence gives

rise to a due process violation.11 See LifeCare, 63 Va. App. at 552-54, 759 S.E.2d at 42-43

(upholding circuit court’s application of non-constitutional harmless error standard to decision of

DMAS not to admit certain evidence during agency proceedings governed by VAPA); Ramsey


         11
         This Court is “not bound by concessions of law by the parties.” Epps v.
Commonwealth, 47 Va. App. 687, 703, 626 S.E.2d 912, 919 (2006) (en banc), aff’d on other
grounds, 273 Va. 410, 641 S.E.2d 77 (2007).
                                            - 17 -
v. Commonwealth, 63 Va. App. 341, 355-57, 757 S.E.2d 576, 583-84 (2014) (reviewing trial

court’s refusal to admit certain evidence under the non-constitutional harmless error standard).

Thus, to evaluate Dr. Zackrison’s due process claim, the nature and scope of the Board’s ruling

must be defined with precision.

       The Board’s ruling did not prevent Dr. Zackrison from testifying. She was allowed to

testify at length, including giving testimony about the standard of care and IDSA and ILADS

guidelines. She even referenced the medical literature on multiple occasions. The Board

specifically noted that it was “accepting her testimony as a board certified rheumatologist” and

that she was permitted under the Board’s ruling to “give her opinion, which we give weight to

because she’s a board certified rheumatologist.” The ruling did not prevent Dr. Zackrison from

calling expert witnesses and, in fact, she called Dr. Horowitz. It did not prevent her from calling

an expert rheumatologist as a witness.12 It simply was a ruling that, because of self-interest, the

Board would not classify her as an expert.

       As such, the Board’s refusal to categorize Dr. Zackrison as an expert was not a bar on her

ability to “present one’s own evidence,” Hladys, 235 Va. at 147, 366 S.E.2d at 99, but rather,

was merely an erroneous evidentiary ruling. Although, like any erroneous ruling, the Board’s

decision affected her presentation of evidence, it did not prevent her from putting on her case or

deprive her of a meaningful opportunity to be heard. Accordingly, the ruling does not rise to the

level of a due process violation, and the circuit court erred in so concluding.




       12
          We recognize that Dr. Zackrison, operating under the assumption that she would be
allowed to serve as her own expert, did not have another rheumatologist available to be called as
a witness at the hearing. We note that Dr. Zackrison, when confronted with the Board’s ruling,
did not request a continuance so another rheumatology expert could be called or seek to call
another rheumatologist. Accordingly, the issue of whether she would have been entitled to a
continuance to allow her to obtain another rheumatology expert is not before us.

                                               - 18 -
                           V. Harmless Error and the Need for a Proffer

       Although not a due process violation, the Board’s erroneous refusal to accept

Dr. Zackrison as an expert still would require vacation of the Board’s order unless the ruling

constituted harmless error. Code § 2.2-4027; LifeCare, 63 Va. App. at 552-54, 759 S.E.2d at

42-43. Accordingly, we must determine whether the Board’s erroneous ruling was such that it

“could have had a significant impact on the ultimate decision . . . .” Jones v. West, 46 Va. App.

309, 327, 616 S.E.2d 790, 799 (2005) (quoting Va. Bd. of Med. v. Fetta, 244 Va. 276, 283, 421

S.E.2d 410, 414 (1992)). A non-constitutional error is harmless if “‘when all is said and done,’”

we can conclude that “‘the error did not influence the [factfinder], or had but slight effect.’”

Mall Amusements, LLC v. Va. Dep’t of Alcoholic Bev. Control, 66 Va. App. 605, 617, 790

S.E.2d 245, 251 (2016) (alteration in original) (quoting Anderson v. Commonwealth, 282 Va.

457, 467, 717 S.E.2d 623, 628 (2011)).

       When, as here, the erroneous ruling results in the exclusion of testimony, we review the

substance of the testimony that would have been given but for the erroneous ruling to see if it

might have affected the outcome. Accordingly, Virginia law requires the proponent of excluded

testimony to proffer the specific substance of the testimony to allow us to determine if its

exclusion was harmless error or not.

       As we recently articulated in Massey v. Commonwealth, 67 Va. App. 108, 132-33, 793

S.E.2d 816, 828 (2016),

               “In Virginia, when testimony is rejected before it is delivered, an
               appellate court has no basis for adjudication unless the record
               reflects a proper proffer.” Ray v. Commonwealth, 55 Va. App.
               647, 649, 688 S.E.2d 879, 880 (2010) (internal quotation marks
               and citation omitted). For a proffer to be sufficient, it must allow
               us to examine both the “admissibility of the proposed testimony,”
               and whether, even if admissible, its exclusion “prejudiced” the
               proffering party. Molina v. Commonwealth, 47 Va. App. 338,
               368, 624 S.E.2d 83, 97 (2006) (citations omitted).

                                                - 19 -
With respect to prejudice, we stated that

               [w]e can determine prejudice only upon “proper proffer showing
               what the testimony would have been.” Holles v. Sunrise Terrace,
               Inc., 257 Va. 131, 135, 509 S.E.2d 494, 497 (1999); Molina, 47
               Va. App. at 368, 624 S.E.2d at 97 (citations omitted). Even when
               “we are not totally in the dark concerning the nature of the
               evidence,” we still must “know enough about the specifics” to be
               able to “say with assurance” that the lower court committed
               prejudicial error. Smith v. Hylton, 14 Va. App. 354, 358, 416
               S.E.2d 712, 715 (1992).

Id. at 133, 793 S.E.2d at 828. Thus, “‘[t]he failure to proffer the expected testimony is fatal to

[the] claim on appeal.’” Id. at 132, 793 S.E.2d at 828 (quoting Molina, 47 Va. App. at 367-68,

624 S.E.2d at 97). The requirement that a party proffer the testimony that it would have adduced

absent the erroneous ruling applies to expert testimony. Black v. Bladergroen, 258 Va. 438, 446,

521 S.E.2d 168, 172 (1999) (holding that the appellate court could find exclusion of expert’s

testimony prejudiced offering party because he “made an appropriate proffer setting forth what

[the medical expert’s] testimony against each defendant would have been”); Holles, 257 Va. at

135, 509 S.E.2d at 497 (holding that failure to proffer the anticipated testimony of a purported

expert nurse was fatal to claim on appeal); Molina, 47 Va. App. at 367-68, 624 S.E.2d at 97

(holding that “failure to proffer [a disallowed medical expert’s] expected testimony is fatal to

[the] claim on appeal”).

       There is no question that, in the proceedings before the Board, Dr. Zackrison created a

sufficient record to establish that the Board erred in refusing to allow her to testify as an expert.




                                                - 20 -
Nevertheless, the record does not reveal the specifics of how her testimony would have differed

if the Board had accepted her as an expert.13

        At oral argument, Dr. Zackrison stated that, if she had been permitted to do so, she would

have correlated the care she rendered with the medical literature that had been admitted on the

discs she submitted. When asked where in the record she proffered the specifics of the testimony

she would have given, she pointed to an exchange in which the Board ruled that the discussion of

literature should be left to her expert.

        Although the cited portion of the record supports the conclusion that, but for the

erroneous ruling, her testimony would have touched on the relationship between her care and the

medical literature to a greater degree than it did, no proffer was made regarding the specifics of

what that testimony would have been.14 We do not know whether her testimony simply would

have recited the literature, which had been admitted into evidence already, or done something

more. We do not know how her citations to the literature would have differed from the

references she was allowed to make or from Dr. Horowitz’s repeated references to the literature

in support of his opinion that Dr. Zackrison’s care and treatment of Patient A was appropriate.

Given Dr. Horowitz’s repeated references to the literature, it is certainly possible that any of the




        13
          At oral argument, Dr. Zackrison acknowledged that her claim was about specific
testimony that she was not allowed to give and not based on her testimony lacking the
imprimatur of the “expert” label. This position is reasonably grounded in the Board’s statements
that it was “accepting her testimony as a board certified rheumatologist” and that she was
permitted under the Board’s ruling to “give her opinion, which we give weight to because she’s a
board certified rheumatologist.”
        14
          We note that, once the Board ruled that it would not accept her as an expert,
Dr. Zackrison never requested that the Board allow her to specify what additional testimony she
would give if the Board had accepted her as an expert. Accordingly, this is not a case where the
lower tribunal refused to accept a proffer. See, e.g., Smith, 14 Va. App. at 358-59, 416 S.E.2d at
715.

                                                - 21 -
unknown references to the literature that Dr. Zackrison would have made would have been

merely cumulative, and thus, not have affected the outcome.

        Accordingly, although “we are not totally in the dark concerning the nature of the

evidence,” the lack of a specific proffer of what her testimony would have been does not allow

us to “know enough about the specifics to be able to say with assurance that the [Board]

committed prejudicial error.” Tynes v. Commonwealth, 49 Va. App. 17, 22, 635 S.E.2d 688,

690 (2006) (internal quotation marks and citation omitted). Accordingly, because we cannot say

that she suffered prejudice from the erroneous ruling, we must reverse the decision of the circuit

court vacating the Board’s order and reinstate the final disciplinary order of the Board.

                                           CONCLUSION

        Although we find that the Board erred in prohibiting Dr. Zackrison from testifying as an

expert, we, for the reasons stated above, reverse the decision of the circuit court and reinstate the

Board’s finding of a violation and the sanction it imposed.

                                                                        Reversed and final judgment.15




        15
           Despite our finding of error, we are reinstating the Board’s disciplinary order.
Accordingly, final judgment is appropriate because Code § 2.2-4029’s prohibition that “the court
shall not itself undertake to supply agency action” does not apply.
                                                - 22 -
