Riverside Hosp., Inc. v. Johnson

Present: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and
Agee, JJ., and Carrico, S.J.

RIVERSIDE HOSPITAL, INC., t/a
RIVERSIDE REGIONAL MEDICAL
CENTER, ET AL.

v. Record No. 060392 OPINION BY JUSTICE ELIZABETH B. LACY
November 3, 2006

TERRY ALLAN JOHNSON, EXECUTOR
OF THE ESTATE OF ELAINE DUDLEY
JOHNSON, DECEASED

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
David F. Pugh, Judge

Terry Allan Johnson, the executor of the estate of Elaine

Dudley Johnson (the Estate), filed a motion for judgment

against Riverside Regional Medical Center (Riverside) and its

employee Nurse Nicole Green 1 alleging that the defendants

failed to accurately assess Elaine Dudley Johnson's risk of

falling and then failed to institute appropriate measures to

prevent her from falling. A jury returned a verdict in favor

of the Estate. In this appeal, Riverside and Nurse Green (the

Defendants) challenge four of the trial court's evidentiary

rulings and a jury instruction. For the reasons set out

below, we conclude that there was no error in the trial

court's rulings and, consequently, we will affirm the judgment

of the trial court.

1
At the time of trial, Nicole Green was identified as
Nicole Green Miles. For purposes of this opinion we will
refer to her as Nicole Green or Nurse Green.
 FACTS

Seventy-nine year old Johnson was admitted to Riverside

for "profound generalized weakness and new-onset confusion,

disorientation, hallucinations and agitation," and

dehydration. Johnson suffered from lymphoma, which had been

diagnosed ten years earlier. Riverside staff completed an

"Adult Data Base" form, which listed pertinent information

about Johnson's medical history and condition. The form also

contained an assessment of Johnson's risk of falling based on

several factors. Johnson was not identified as a high fall-

risk patient, and no fall prevention procedures were initiated

for her.

Nurse Green testified that on October 31, 1997, she

placed a call bell within Johnson's reach and that the top

rails were in place on Johnson's bed. Green did not install a

bed alarm, which would have sounded had Johnson gotten out of

bed unassisted. Rather, Green testified that she instructed

Johnson not to get out of bed without assistance, but to use

the call system to request assistance in getting up.

Sometime after 10:00 p.m. on October 31, 1997, Johnson

fell in the hallway outside her room. After the fall, Johnson

complained of pain in her left hip. An x-ray on November 1,

1997 revealed that Johnson's left hip was fractured.

2
 Several months later, Johnson died of lymphoma. The

Estate filed suit against Nurse Green and Riverside, seeking

$1 million in compensatory damages and $350,000 in punitive

damages. In the Motion for Judgment, the Estate alleged that

although Riverside was aware of numerous patient falls, it

failed to "implement restraints, bottom bed rails or even a

bed check alarm" for Johnson. The Estate further alleged that

Riverside was negligent in, inter alia, failing to (1) assess

Johnson as a high fall-risk patient; (2) initiate a fall

prevention plan; and (3) utilize a prompt and reliable nurse

call system.

The Estate nonsuited the punitive damages claim following

the close of evidence. A jury returned a verdict for the

Estate and against Nurse Green and Riverside in the amount of

$1 million, with interest from October 31, 1997. The court

removed the interest award and entered a $1 million judgment

for the Estate.

The Defendants timely filed this appeal, raising five

assignments of error challenging the trial court's rulings

primarily related to the admission of evidence. The Defendants

claim the trial court erred in admitting statistical evidence

concerning patient falls at other, non-party institutions and

previous patient falls at Riverside Hospital, in admitting

evidence of Riverside Hospital's staff-orientation instructions

3
and nurse training materials from non-party Riverside School of

Professional Nursing, in admitting privileged communications

and reports, and in limiting testimony of the Defendants'

standard of care expert. The Defendants also claim that the

trial court erred in submitting a jury instruction containing

an incorrect statement of law. We will consider these issues

in order.

DISCUSSION

I. ADMISSION OF STATISTICAL EVIDENCE

In their first assignment of error, the Defendants

challenge the trial court's decision to admit statistical

evidence consisting of information from bar graphs contained

in a nursing journal article and information kept and compiled

by Riverside regarding other patient fall cases at Riverside.

Our review of the record, as discussed below, shows that the

Defendants failed to preserve their objections to this

evidence.

A. BAR GRAPH CHARTS

During opening statements, the Estate showed the jury bar

graphs displaying various information about patient falls in

the general hospital population, and referred to the

information on the graphs. The Defendants objected, stating

that although the graphs could be properly relied on by

experts and read to the jury pursuant to Code § 8.01-401.1,

4
the graphs and articles were "not evidence and [it was]

certainly impermissible to argue to the jury statistics in

this case." The trial court overruled the objection.

Nurse Wendy E. Jenvey, the Estate's expert witness, then

testified that the journal article containing the bar graphs

was the type of source normally relied upon by others in the

nursing field to form opinions, and that she considered the

article to be a reliable authority. Jenvey described the

content of the article and the graphs to the jury. The

Defendants did not object to this testimony. The Estate again

referred to information in the bar graphs during closing

argument, again without any objection from the Defendants.

Although shown to the jury, neither the journal article nor

the bar graphs were introduced into evidence.

In the absence of any objection to the bar graph

references during Jenvey's testimony or closing arguments,

only the Estate's reference to the bar graphs made in opening

argument is before us in this assignment of error. Rule 5:25.

In objecting to statements made in the opening argument, the

Defendants argued that the bar graphs and journal article were

"not evidence" and that arguing such statistics to the jury

was "impermissible." The assignment of error challenges the

admission of evidence; however an opening statement is

argument of counsel, and does not involve admission of

5
evidence. To the extent the assignment of error addresses the

propriety of the Estate's argument and the trial court's

determination that including reference to the bar graphs was

permissible, that ruling, if error, is harmless error. As the

record reflects, the jury heard the same information during

Jenvey's testimony without objection.

B. RIVERSIDE HOSPITAL PATIENT FALL REPORTS

The Defendants next contend that the trial court erred in

admitting statistical evidence about other patient falls at

Riverside (the Fall Evidence). This evidence consisted of

testimony based on a report generated by Riverside listing

patient fall data from January through October 1997.

In a pre-trial motion in limine, the Defendants argued

that this information was irrelevant, prejudicial, and likely

to confuse and mislead the jury. The Estate countered that

the information was relevant to establishing notice under the

punitive damage claim. The trial court agreed with the Estate

and ruled that patient falls which took place after the

patient had gotten out of bed were similar to Johnson's fall,

and that data about those falls was admissible for purposes of

notice for the punitive damage claim. The trial court

suggested that a cautionary instruction could be given to the

jury to clarify the purpose of such information.

6
 At the close of evidence, the Estate nonsuited the claim

for punitive damages. The Defendants did not renew their

objection to the Fall Evidence on the basis of relevance, and

did not ask for any cautionary jury instruction regarding

consideration of the Fall Evidence. The Estate maintains that

the Defendants waived their objection to the Fall Evidence

because they did not renew their relevancy objection following

the nonsuit of the punitive damage claim. The Defendants

contend that once they noted their exception to the denial of

their motion in limine, they were not obligated to renew their

objection to the Fall Evidence.

The purpose of Rule 5:25 is to afford the trial court the

ability to address an issue. If that opportunity is not

presented to the trial court, there is no ruling by the trial

court on the issue, and thus no basis for review or action by

this Court on appeal. Furthermore, Rule 5:25 requires that

parties state objections with "reasonable certainty." See

Fisher v. Commonwealth, 236 Va. 403, 413-14, 374 S.E.2d 46, 52

(1988) (holding defendant had waived objection pursuant to

Rule 5:25 by offering a general objection that "failed to put

the trial court on fair notice").

In this case, the Defendants, in their pre-trial motions

and during Friend's testimony, clearly objected to the

admission of the Fall Evidence as irrelevant, immaterial and

7
confusing or prejudicial to either the issue of notice or

negligence. The trial court allowed the Fall Evidence for the

purpose of notice; however, the punitive damage claim

ultimately was not presented to the jury. Although the

Defendants are correct that they did not have to renew their

objection to the introduction of the Fall Evidence as it

related to the notice claim, 2 under the circumstances of this

case, we conclude that the Defendants' failure to reassert

their objection that the Fall Evidence was irrelevant to the

issue of negligence, or to ask the trial court to give the

jury a cautionary instruction regarding the use of such

evidence, precluded the trial court from considering whether

further action or ruling should be made regarding that

evidence after the Estate's punitive damages claim was

nonsuited.

In Riner v. Commonwealth, 268 Va. 296, 601 S.E.2d 555

(2004), the defendant did not object when the trial court took

defendant's pre-trial motion for change of venue under

advisement. We held that because the defendant did not renew

2
The punitive damage claim was not submitted to the jury.
Therefore, a ruling by this Court on whether the admission of
the evidence for purposes of notice was error would be an
advisory opinion because our ruling would not have any effect
on the verdict that was rendered. This Court does not issue
advisory opinions. Commonwealth v. Harley, 256 Va. 216, 219,
504 S.E.2d 852, 854 (1998); City of Fairfax v. Shanklin, 205
Va. 227, 229-30, 135 S.E.2d 773, 775-76 (1964).

8
the motion or remind the court that the motion was still

pending prior to the seating of the jury, the change of venue

motion was waived and could not be raised on appeal. Id. at

309-310, 601 S.E.2d at 562-63.

In this case, while the trial court did not take under

advisement the Defendants' objection to the admission of the

Fall Evidence as irrelevant and prejudicial to the negligence

issue, the court also did not specifically address this

objection in ruling that the evidence could be admitted for

the limited purpose of notice in connection with the punitive

damage claim. 3 When the punitive damage claim was nonsuited,

the complexion of the litigation changed significantly. The

Defendants recognized this change and sought to strike

portions of the motion for judgment relating to the punitive

damage claim and co-authored a joint statement read to the

jury explaining that punitive or exemplary damages were no

longer part of the litigation. They took no steps, however,

to bring to the attention of the trial court the irrelevance

of the Fall Evidence in light of the changed circumstances of

the case, nor did they seek a cautionary instruction regarding

3
Implicit in the limitation of the use of the Fall
Evidence to the notice issue, is the proposition that the
evidence was not relevant to other issues. However,
Defendants have characterized the trial court's ruling as
denying their objection to the evidence with regard to the
negligence issue.

9
the jury's use of that evidence. Thus, as in Riner, the

Defendants did not afford the trial court in this case an

opportunity to rule on their objections to the Fall Evidence

in the sole context of the negligence issue.

We reject the Defendants' argument that they renewed

their relevance objection by moving to strike portions of the

Motion for Judgment affected by the nonsuit. Nothing in this

motion referred to either the statistical evidence of which

they now complain or to its relevance to the negligence count.

Thus, this motion also fails to meet the "reasonable

certainty" requirement contained in Rule 5:25.

For these reasons we conclude that the Defendants did not

preserve their objections to the statistical evidence

involving patient falls at other hospitals and at Riverside

Hospital and we will not consider this assignment of error

further. Rule 5:25.

II. ADMISSION OF ORIENTATION INSTRUCTIONS
AND NURSE TRAINING MATERIALS

The Defendants next assign error to the trial court's

decision to admit evidence of Riverside's staff orientation

instructions and nurse training materials from the Riverside

School of Professional Nursing.

In pre-trial motions, the Estate sought discovery of

Riverside orientation materials on high fall-risk assessment

10
or prevention and nurse training materials on that subject

from Riverside School of Professional Nursing, arguing such

information was relevant to notice under the punitive damage

claim and to the standard of care. The trial court granted

the Estate's motions to compel over the Defendants' objection.

Following discovery, the Defendants filed a motion in

limine again arguing that the orientation material and nursing

school curriculum should not be admitted because they

constituted private rules which cannot establish the standard

of care, were otherwise irrelevant, and would be confusing to

the jury. In response, the Estate asserted that these

materials were not policies and procedures of the hospital,

and would not be offered as the standard of care. The Estate

maintained that standard of care testimony would come only

from an expert, that the materials were relevant as

establishing education, and would be "corroborative" of the

expert's standard of care testimony. The trial court denied

the Defendants' motion in limine.

At trial, the Defendants again objected to the admission

of the orientation and nursing school curriculum evidence when

offered through the testimony of Flo A. Hicks and Debra

Sullivan-Yates, respectively. The Estate again asserted that

the evidence was not introduced as the standard of care, but

11
as foundation and corroboration of its expert's testimony. 4

The trial court allowed the testimony of both witnesses.

We review a trial court's evidentiary rulings applying an

abuse of discretion standard. We will not overturn a trial

court's exercise of its discretion in determining whether to

admit or exclude evidence on appeal unless the evidence shows

that the trial court abused its discretion. Hinkley v.

Koehler, 269 Va. 82, 91, 606 S.E.2d 803, 808 (2005). While a

"trial court has no discretion to admit clearly inadmissible

evidence," Norfolk & Western Ry. Co. v. Puryear, 250 Va. 559,

563, 463 S.E.2d 442, 444 (1995) (quoting Coe v. Commonwealth,

231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)), "a great deal

must necessarily be left to the discretion of the court of

trial, in determining whether evidence is relevant to the

issue or not." Peacock Buick, Inc. v. Durkin, 221 Va. 1133,

1136, 277 S.E.2d 225, 227 (1981) (internal quotation marks

omitted).

We first address the Defendants' arguments that, pursuant

to Virginia Ry. & Power Co. v. Godsey, 117 Va. 167, 83 S.E.

1072 (1915) and Pullen v. Nickens, 226 Va. 342, 310 S.E.2d 452

(1983), the evidence at issue was inadmissible because it

4
The Defendants also argued that the material was
inadmissible because there was no evidence that Nurse Green
attended the Riverside School of Nursing or that she saw the

12
served as private rules, which cannot establish the standard

of care. We reject this argument for two reasons. First,

Godsey and Pullen involved policies and procedures that

employees were expected to follow and as such were described

as "private rules." Godsey, 117 Va. at 168-70, 83 S.E. at

1072-73; Pullen, 226 Va. at 349-51, 310 S.E.2d at 456-57. In

this case, the evidence of the staff orientation instruction

and nursing curriculum, although dealing with the issue of

fall-risk assessment and prevention, were not hospital

policies or procedures of the type involved in Godsey and

Pullen. More importantly, it was clear throughout this

proceeding that the trial court ruled, and the Estate agreed,

that the evidence in question would not be admitted to

establish the standard of care. That limitation was repeated

during the admission of the evidence and the jury was

instructed that the standard of care for Nurse Green's actions

could be established only through expert testimony.

In addition, the Estate's expert witness, Jenvey,

testified that the orientation material and nursing

instruction were among the materials she consulted in

formulating her opinion on the standard of care. The

Defendants did not object to Jenvey's reference to and

orientation video. In light of our disposition of this issue,
we need not address that objection.

13
reliance on this evidence. 5 Furthermore, Nurse Green, who

testified after Hicks and Sullivan-Yates, and before Jenvey,

stated that she had attended the Riverside orientation,

described the contents of the orientation, and testified that

her nursing education entailed a "general nursing curriculum."

Considering this record, we cannot say the trial court

abused its discretion in admitting evidence of Riverside's

orientation materials and the nursing school curriculum on

high fall-risk assessment and prevention. Under the trial

court's rulings, the evidence at issue was not offered to

establish the standard of care. Rather, the jury was

instructed to rely on the expert testimony regarding the

standard of care. There was no objection to the relevancy of

the evidence when the Estate's expert testified she referred

to it in formulating her opinion on the standard of care, and

similar evidence was admitted through the testimony of Nurse

Green.

III. ADMISSION OF QUALITY CARE CONTROL REPORT
AND INFORMATION FROM HOSPITAL FALL DATABASE

We next turn to the Defendants' contention that the trial

court erred in admitting into evidence certain reports made

and maintained by Riverside because they were privileged

5
The Defendants' only objection to this testimony was
that some of the materials Jenvey identified as credible

14
documents pursuant to Code § 8.01-581.17. Over the Defendants'

objection, the trial court admitted into evidence a document

which Riverside termed a Quality Care Control Report (QCCR).

This report consists of a form onto which Green had entered

information about Johnson's fall. In the blocks provided,

Green indicated the date, place, and time of the fall, the

severity of the fall, the facts of the fall, whether the

patient was aware of the fall and her reaction to it, and her

status before the fall including the use of any restraints,

side rails, or call bell. The trial court also admitted a

redacted page from Riverside's Quality Management Services

(QMS) database report. This page contained entries about

Johnson's fall, as well as that of a 61 year-old Riverside

patient who fell the same day as Johnson. 6

Joanne Friend, Riverside's Director of Risk Management,

testified that the QCCR is an incident report that Green

authority for determining the standard of care were not
contained in the designation submitted pre-trial.
6
The entry about Johnson stated in relevant part:
"Patient was found on the floor in the hallway; had
gotten OOB [out of bed] without assistance –
unsteady gait/confused. Patient c/o left hip pain
after fall." The entry about the other patient
stated: "Patient was found on the floor of the
doorway to his room with IV pole in hand. The
patient states he can't remember why he got OOB, and
he did not hurt himself. Pt. stated that he 'got
down on his L knee and crawled to the door.' . . .
ACTIONS: Bedcheck on; nurse call system down.
Patient refuses restraints . . . ."

15
prepared "in the course of her job." Such reports, Friend

stated, were completed for all falls regardless of whether

there was an injury or litigation was expected. Friend

testified that after the QCCRs were completed, some of the

information on the forms would be entered into the QMS

database by an employee in Friend's office. The QCCRs were

generally destroyed after three months, although Friend

retained the QCCR describing Johnson's fall in anticipation of

litigation. Reports were generated based on the information

in the QMS database and those reports were provided to

Riverside's "quality committee which was made up of

administrators and physicians," and then ultimately to

Riverside's board of directors. Not every report was given to

the hospital's quality committee, but the information

contained in the reports was always available to committee

members. 7 According to Friend, QCCR's were generated for the

purpose of "improvement efforts."

The Defendants argue that the information on the QCCR was

a qualitative analysis of Johnson's fall and that the QMS

database is a digest of QCCR forms intended to improve the

delivery of healthcare at Riverside. As such, the Defendants

7
It is not clear from the record whether the specific
QCCR at issue was given to a peer review or quality care
committee, although it is clear that some information from the

16
contend, the information was privileged material, exempt from

disclosure under Code § 8.01-581.17.

The Estate replies that the reports at issue were

actually routine accident reports that were designated as

quality care control documents in an attempt to invoke the

privilege afforded under Code § 8.01-581.17(B). According to

Johnson, neither the QCCR nor the page from the QMS database

contains any qualitative information about either fall

incident, only the circumstances of the falls. Such

information, the Estate argues, should not be entitled to the

privilege under Code § 8.01-581.17 merely because it may be

ultimately reviewed by a medical staff, quality assurance,

peer review, or other type of committee identified in the

statute. The incident reports or QCCR's and the database

report made from those reports are medical records kept in the

course of operating a hospital and thus under Subsection (C)

of Code § 8.01-581.17 are not entitled to the presumption,

according to the Estate.

As relevant here, Code § 8.01-581.17 provides as follows: 8

B. The proceedings, minutes, records, and
reports of any (i) medical staff committee,
utilization review committee, . . . (iii) quality
assurance, quality of care, or peer review

QCCR would be contained in reports given to various quality
review committees.
8
Code § 8.01-581.17 was amended in 2006 but those
amendments are not relevant to the issues in this appeal.

17
 committee . . ., together with all communications,
both oral and written, originating in or provided
to such committees . . . are privileged
communications which may not be disclosed or
obtained by legal discovery proceedings unless a
circuit court, after a hearing and for good cause
. . . orders the disclosure of such proceedings,
minutes, records, reports, or communications. . . .
Oral communications regarding a specific medical
incident involving patient care, made to a quality
assurance, quality of care, or peer review
committee established pursuant to clause (iii),
shall be privileged only to the extent made more
than 24 hours after the occurrence of the medical
incident.
C. Nothing in this section shall be
construed as providing any privilege to health care
provider . . . medical records kept with respect to
any patient in the ordinary course of business of
operating a hospital . . . nor to any facts or
information contained in such records nor shall
this section preclude or affect discovery of or
production of evidence relating to hospitalization
or treatment of any patient in the ordinary course
of hospitalization of such patient.

The documents at issue are not documents generated by a

peer review or other quality care committee referred to in the

statute. Thus they are not proceedings, minutes, reports, or

other communications "of" or "originating in" such committees.

The question is whether they qualify for the privilege because

they are "communications . . . provided to" such peer review

or quality care committees.

A literal application of the phrase "all communications,

both oral and written, . . . provided to such committees"

would impress the privilege on every document and every

statement made available to a committee or entity identified

18
in the statute. Such an application would allow a health care

facility to immunize from disclosure every statement or

document maintained by the facility simply by insuring that

such statement or document was provided or available to a peer

or quality review committee. Considering this phrase in the

context of the entire section, however, shows that the General

Assembly did not intend such a broad application of the

privilege. For example, the privilege attaching to oral

communications regarding a specific medical incident involving

patient care is limited. Code § 8.01-581.17(B). Similarly,

the section is not to "be construed" as applying the privilege

to the facility's medical records of a specific patient kept

in the ordinary course of operating such facility, or to

evidence of a patient's treatment or hospitalization kept in

the ordinary course of the patient's hospitalization. Code

§ 8.01-581.17(C).

These limitations on the application of the privilege are

consistent with preserving the confidentiality of the quality

review process while allowing disclosure of relevant

information regarding specific patient care and treatment.

"The obvious legislative intent [of the statute] is to promote

open and frank discussion during the peer review process among

health care providers in furtherance of the overall goal of

improvement of the health care system. If peer review

19
information were not confidential, there would be little

incentive to participate in the process." HCA Health Services

of Virginia, Inc. v. Levin, 260 Va. 215, 221, 530 S.E.2d 417,

420 (2000). It is the deliberative process and the

conclusions reached through that process that the General

Assembly sought to protect. See Code § 8.01-581.16 (providing

immunity for actions taken by persons involved in the peer

review process).

The deliberative process involving evaluation of patient

safety conditions and the design of initiatives to improve the

health care system both necessarily begin with factual

information of patient care incidents occurring within the

health care facility. The use of this factual information in

some way in the peer review or quality care committee process

alone is insufficient to automatically cloak such information

with the protection of non-disclosure. Factual patient care

incident information that does not contain or reflect any

committee discussion or action by the committee reviewing the

information is not the type of information that must

"necessarily be confidential" in order to allow participation

in the peer or quality assurance review process. Rather such

information is the type, contemplated by Subsection (C) of

Code § 8.01-581.17, which the General Assembly has

specifically instructed should not be brought within the scope

20
of those items entitled to the privilege under any other part

of the section. 9

Applying these principles, we conclude that the documents

at issue here are of the nature of those described in Code

§ 8.01-581.17(C) and are not privileged. The QCCR, or

incident report, was a written documentation of the

circumstances of Johnson's fall, kept in the normal course of

business. The QCCR was a factual recitation of a fall that

occurred during Johnson's hospitalization and the immediate

action taken when Johnson was found on the floor. Likewise,

the redacted page from the QMS database report was a factual

description of Johnson's fall and that of another patient

which, according to Friend's testimony, was based on a QCCR.

Like the QCCR, the information on this page related to the raw

data about the hospitalization and treatment of specific

patients. 10 Both documents were medical records of the

hospital, made and kept in the normal course of the operation

of the hospital. Accordingly, the trial court did not err in

9
The Defendants argue that such records must be the
medical chart of the specific patient. However, the statute
refers to medical records of the health care facility. Thus,
this provision is not limited to what is contained in the
documents generally considered to be the patient's medical
chart.
10
Our consideration here is limited to the specific
entries contained on this page and not to a QMS database
report in general.

21
ruling that the documents were not privileged pursuant to the

statute.

IV. TESTIMONY OF NURSE FRANCIS A. VICKERS

At trial, the Defendants proffered Nurse Francis A.

Vickers as an expert to testify about assessing patient fall-

risk and risk-reducing interventions. The Estate argued that

because Vickers had not had experience in activating bed

alarms, she did not fulfill the active clinical practice

requirement for a testifying expert. Code § 8.01-581.20. The

trial court agreed with the Estate and allowed Vickers to

testify about fall-risk assessment and fall-risk intervention

measures other than bed alarms. The Defendants, after

objecting to the court's ruling, indicated that they wished to

avoid telling the jury that Nurse Vickers was not qualified to

testify on bed alarms, and ultimately offered Nurse Vickers as

an expert only in patient fall-risk assessment. Nurse Vickers

testified that Johnson was not a high fall-risk patient.

On appeal, the Defendants present the following

assignment of error:

The trial court erred in prohibiting
defendants' standard of care expert, Nurse Francis
Vickers, from testifying that Ms. Johnson did not
require fall-prevention measures because she was
not a high-fall-risk patient.

It is not clear from this assignment of error exactly which

ruling of the trial court the Defendants challenge. This

22
assignment of error does not address the limitation the trial

court placed on Nurse Vickers' qualification as an expert.

Nor does this assignment of error challenge Vickers' ability

to testify on fall-risk assessment, because she did present

such testimony. And although she did not present testimony on

fall prevention measures other than bed alarms, she was

entitled to do so. Furthermore, the Defendants' counsel

agreed that Vickers could not be asked whether "any

intervention" was necessary because a negative answer, based

on Vickers' opinion that Johnson was not a high fall-risk

patient, would imply that Vickers had also excluded bed

alarms, a subject about which she was not qualified to

testify.

On brief here, the Defendants assert that Vickers should

have been allowed to testify as to the need for initiation of

fall prevention measures, regardless of the nature of the

types of fall prevention interventions. We do not find any

ruling of the trial court, however, specifically prohibiting

such testimony. Rather, the trial court ruled that the

Defendants could not question Vickers about the need for "any

intervention," without indicating that the question was not

meant to include bed alarms. Furthermore, implicit in Nurse

Vickers' opinion that Johnson was not a high fall-risk patient

is the conclusion that, therefore, fall-risk prevention

23
measures were not necessary. For these reasons, we reject

this assignment of error.

V. JURY INSTRUCTIONS

In their final assignment of error, the Defendants assert

that the jury verdict must be set aside because of an error of

law in a jury instruction and the resulting jury confusion.

The jury received the following instructions:

Instruction 14: The Court instructs the jury that
a hospital has the duty to exercise reasonable care
and attention for a patient's safety as her mental
and physical condition, if known, may require.

If a hospital fails to perform this duty, then it
is negligent.

Instruction 15: The Court instructs the jury that
a nurse has a duty to use the degree of skill and
diligence in the care and treatment of her patient
that a reasonably prudent nurse in the same field
of practice or specialty in this State would have
used under the circumstances of this case. If
Nurse Green and/or any other Riverside nurse failed
to perform that duty . . . then each such nurse and
Defendant, Riverside, is negligent.

Instruction 18: The Court instructs the jury that
you must determine the degree of care that was
required of Defendant, Riverside, Nurse Green,
and/or Riverside's other nurses by considering only
the expert testimony on that subject.

The Defendants argue that Instruction 14 was improper

because it failed to inform the jury of the correct negligence

standard to be applied to a hospital in a medical malpractice

case. The Defendants claim Instruction 14 improperly told the

jury to determine the standard of care based on common

24
knowledge. Rather, the standard of care should be determined

by expert testimony on the issue. Perdieu v. Blackstone

Family Practice Ctr., 264 Va. 408, 422, 568 S.E.2d 703, 711

(2002) ("Furthermore, the appropriate standard of care

required by a nursing home to prevent falls by residents is

not within the common knowledge or understanding of a jury.").

The Defendants further argue that Instruction 14 misled

and confused the jury. During deliberations, the jury asked

if it could find the hospital negligent without finding Nurse

Green negligent. The Defendants claim that the jury's

question evidences confusion as to the interplay between

Instruction 14 and Instructions 15 and 18. Citing Blue Stone

Land Co. v. Neff, 259 Va. 273, 526 S.E.2d 517 (2000), the

Defendants argue that because the harmless error doctrine is

never applied when the jury has been erroneously instructed,

the jury's verdict must be set aside and the case remanded.

This Court has often found that where an erroneous

instruction conflicts with an instruction that correctly

states the law, the verdict must be set aside because it is

impossible to determine which instruction was the basis for

the jury's decision. See, e.g., Doe v. Scott, 221 Va. 997,

1002-03, 277 S.E.2d 159, 162-63 (1981) (reversing due to

instruction that incorrectly stated statutory duty); Redd v.

Ingram, 207 Va. 939, 942, 154 S.E.2d 149, 152 (1967) (setting

25
aside jury verdict because even though erroneous instruction

was counterbalanced by correct instruction, "we cannot know

whether the jury followed [the erroneous] Instruction E(1) or

[the correct] Instruction 2."); American Locomotive Co. v.

Whitlock, 109 Va. 238, 243, 63 S.E. 991, 993 (1909)("The fact

that [Instruction] No. 4 correctly stated the law does not

cure the error of No. 1, which was a complete instruction in

itself, and may have controlled the jury in their finding.").

Nevertheless, a jury verdict based on an erroneous

instruction need not be set aside if it is clear that the jury

was not misled. Shifflett v. Commonwealth, 221 Va. 191, 194,

269 S.E.2d 353, 355 (1980)(error in instruction cured by other

instructions given); Tolston v. Reeves, 200 Va. 179, 183, 104

S.E.2d 754, 757 (1958)(instruction which misstates the law may

be cured by a correct statement of the law in a separate

instruction if it "plainly appears that the jury could not

have been misled by the defective instruction").

Applying these principles, we conclude that, assuming

without deciding that Instruction 14 was an erroneous

statement of the law, such error does not require the jury

verdict be set aside in this case. Instructions 15 and 18 set

out the proper standard for determining Nurse Green's

negligence. Thus the jury's verdict against Nurse Green was

based on correct instructions.

26
 Instruction 15 also stated, correctly, that if the jury

found Nurse Green negligent, then Riverside also was

negligent. "A jury is presumed to follow its instructions."

Weeks v. Angelone, 528 U.S. 225, 234 (2000). Therefore,

having found Nurse Green negligent, a verdict against

Riverside was required based Instruction 15. Because

Instruction 15 ensured that the jury was not misled with

respect to finding Riverside negligent, Tolston, 200 Va. at

183, 104 S.E.2d at 757, any error in Instruction 14 would not

require that the verdict be set aside.

For the reasons stated, we find no error in the rulings

of the trial court. Thus, we will affirm the judgment of the

trial court.

Affirmed.

JUSTICE AGEE, with whom JUSTICE KEENAN joins, concurring in
part and dissenting in part.

I agree with the majority opinion except as to Part I.B.,

which holds that Rule 5:25 applies to the Defendants’

assignment of error on the admission of statistical evidence

of other falls at Defendants’ hospital (“Fall Evidence”). The

majority opines in Part I.B. that Rule 5:25 required

Defendants to reassert their prior objection to the Fall

Evidence on the basis of relevance, or to ask the trial court

to give the jury a cautionary instruction regarding the use of

27
such evidence, once the Estate nonsuited its punitive damages

claim. In my view, the Defendants correctly and adequately

objected to the admission of the Fall Evidence, and Rule 5:25

does not apply. Further, I would find the trial court erred

in denying Defendants’ objections to the Fall Evidence, which

requires reversal of the judgment of the trial court.

Under Rule 5:25, we must examine whether an objection was

made “with reasonable certainty” and that the objection was

made “at the time of the ruling.” My review of the record

indicates the Defendants did so.

The Defendants first objected to the Fall Evidence in

their motion in limine. The objection was clear, unequivocal

and not limited to the “notice” argument on punitive damages,

but went to the underlying negligence claim on the merits:

[s]uch evidence is irrelevant, immaterial, likely to
confuse and/or prejudice the jury, and should therefore
be excluded in its entirety.

. . . .

Evidence of any previous falls is also misleading
and confusing, because absent specific context,
allowing the jury to hear such evidence could lead the
jury to believe that a “patient fall” equals
“negligence.”

At the pre-trial hearing on the motion in limine,

Defendants again objected to the relevance of the Fall

Evidence and noted an exception to the trial court’s ruling to

admit the evidence. Although the trial court offered to

28
consider a cautionary instruction, it ruled the Fall Evidence

would be admissible at trial.

When the Fall Evidence was offered at trial during the

testimony of Joanne Friend, the Defendants again objected to

its receipt for any purpose: “to show the jury the raw number

of falls it’s absolutely without any context whatsoever. It’s

confusing, it’s misleading and reversible error, and I object

to it.” The Defendants then offered, and the Estate agreed to

a “continuing objection” to avoid recurring argument during

trial over whether the Fall Evidence was admissible. The

Estate thereafter took a nonsuit as to its claim for punitive

damages, thereby removing the argument that the narrow purpose

of showing “notice” legitimized the introduction of the Fall

Evidence.

The majority agrees that the Defendants, in their pre-

trial motions and during Friend’s testimony, “clearly objected

to the Fall Evidence as irrelevant, immaterial and confusing

or prejudicial to either the issue of notice or negligence”

(emphasis added). However, the majority holds today that

Defendants nonetheless waived their argument on appeal by not

objecting yet again after the Estate nonsuited the punitive

damages claim, citing as authority Riner v. Commonwealth, 268

Va. 296, 601 S.E.2d 555 (2004). I disagree with the

29
majority’s conclusion and think Riner is distinguishable on

this point.

Code § 8.01-384 provides, in pertinent part, “it shall be

sufficient that a party, at the time the ruling or order of

the court is made or sought, makes known to the court the

action which he desires the court to take or his objections to

the action of the court and his grounds therefor.” The

Defendants fulfilled this statutory requirement by at least

three times objecting to the admission of the Fall Evidence

for any purpose and letting the trial court know the action

desired: exclusion of the evidence. The objections were not

limited to the use of such evidence on the issue of notice,

but plainly also went to its use for any purpose on the

underlying claim of negligence. Nothing further was required,

particularly in view of the Estate’s acquiescence to the

Defendants’ “continuing objection.”

Had the Defendants’ objections been limited to the notice

aspect, I would agree with the majority’s analysis. However,

it seems clear the Defendants’ primary objection was the

confusing and misleading information that the Fall Evidence

could become to the jury on the fundamental issue of

negligence.

30
 In my view, the holdings cited from Riner are inapposite

to the case at bar. 1 In Riner, we held as barred by Rule 5:25

a defendant’s claim on appeal that the trial court erred in

failing to grant a change of venue motion. Riner, 268 Va. at

310, 601 S.E.2d at 562-63. However, the trial court had taken

the motion under advisement, without objection from the

defendant, and did not rule prior to the conclusion of trial.

Id. at 307-09, 601 S.E.2d at 561-62. We applied Rule 5:25 to

the defendant’s failure to raise the lack of ruling on the

venue issue to the trial court’s attention. We similarly held

as to defendant’s separate failure to remind the trial court

it had not ruled on a part of defendant’s objection to certain

hearsay evidence as a waiver of that claim under Rule 5:25.

Id. at 310-11, 324-25, 601 S.E.2d at 562-63, 570-71.

In contrast to Riner, the trial court in the case at bar

did not take Defendants’ multiple objections to the Fall

1
The Estate also cites Green v. Commonwealth, 266 Va. 81,
580 S.E.2d 834 (2003) and Breard v. Commonwealth, 248 Va. 68,
445 S.E.2d 670 (1994), for the proposition that Defendants
here waived an objection under Rule 5:25 to the admission of
the Fall Evidence. However, these cases are no more on point
than Riner. Green, like Riner, involved the defendant’s
challenge to venue and subsequent failure to renew an
objection after the trial court took the matter under
advisement and later empanelled the jury. Green, 266 Va. at
95, 580 S.E.2d at 842. Breard also involved a trial court’s
invitation to a defendant, and the defendant’s subsequent
failure to renew an objection, after the court denied the
motion to strike a juror "for the moment" but offered to

31
Evidence under advisement or fail to rule on those objections.

The trial court clearly ruled by denying Defendants’

objections each time. The Defendants did exactly what Code

§ 8.01-384 and Rule 5:25 required. They made clear, precise

and timely objections, which went specifically to the issue of

negligence and were not limited to the punitive damages claim.

The majority opinion does not address whether the Fall

Evidence was admissible for purposes of establishing notice as

an element of the Estate’s punitive damages claim. However,

even if one assumes the Estate could make its argument as to

notice, that does not negate the otherwise valid and timely

objection of the Defendants to admission of the Fall Evidence

for any purpose on the basic issue of negligence.

We have held that raw statistical evidence is not

probative of any issue in a medical malpractice case and

should not be admitted. Holley v. Pambianco, 270 Va. 180,

185, 613 S.E.2d 425, 428 (2005). See also McCloud v.

Commonwealth, 269 Va. 242, 259, 609 S.E.2d 16, 25 (2005)

(evidence of a raw number of events, without describing their

circumstances, can be misleading or confusing to the jury);

Sanitary Grocery Co. v. Steinbrecher, 183 Va. 495, 499-500, 32

S.E.2d 685, 686-87 (1945) (evidence that 1,000 customers per

rehear the motion upon completion of voir dire. Breard, 248
Va. at 80, 445 S.E.2d at 677-78.

32
day visited grocery store without injury inadmissible as

misleading and throwing no light upon the facts of the case

before the jury). Likewise, evidence of prior, similar acts

confuses the jury and is not relevant to prove negligence.

See, e.g., Stottlemyer v. Ghramm, 268 Va. 7, 13, 597 S.E.2d

191, 194 (2004) (holding “specific acts of bad conduct or

prior acts of negligence” are not relevant to the issues in a

medical malpractice case).

In Holley, an expert witness presented raw data, much

like the Fall Evidence, showing the frequency of perforations

during colonoscopies and polypectomies. This testimony was

admitted over objection despite the fact “the statistics

contained no breakdown between those cases involving

perforations caused by negligence and those that did not.”

270 Va. at 184, 613 S.E.2d at 427. Counsel's closing argument

referred to the risks in the context of the standard of care.

We held the argument using statistical evidence “was based

upon a premise unsupported by the evidence: That perforations

are just as likely to occur in the absence of negligence as in

its presence.” Id. at 185, 613 S.E.2d at 428.

The Fall Evidence in the case at bar serves the same

inappropriate purpose as the statistical evidence in Holley

and the evidence of prior acts in Stottlemyer. The Fall

Evidence is based on a similar unsupported premise as the

33
statistical evidence in Holley since falls are just as likely

to result from another cause as from negligence. As such, the

Fall Evidence “is not probative of any issue” and “should not

be admitted.” Holley, 270 Va. at 185, 613 S.E.2d at 428.

Although also offered at trial as evidence of notice for the

Estate’s claim for punitive damages, the Fall Evidence could

remain in the minds of the jurors long after the Estate

nonsuited the punitive damages claim. Such evidence could

reasonably be expected to have “excited prejudice and misled

the jurors.” Stottlemyer, 268 Va. at 12, 597 S.E.2d at 194.

The trial court’s erroneous admission of the Fall

Evidence as to the issue of negligence cannot be deemed

harmless error. In determining the standard for harmless

error, we are guided by Virginia's harmless-error statute,

Code § 8.01-678. 2 When reviewing whether an error is harmless,

we “must decide whether the alleged error substantially

influenced the jury. If it did not, the error is harmless.”

Clay v. Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731

2
Code § 8.01-678 applies in both the civil and criminal
context and states, in relevant part:
When it plainly appears from the record and the
evidence given at the trial that the parties have
had a fair trial on the merits and substantial
justice has been reached, no judgment shall be
arrested or reversed . . . [f]or any . . . defect,
imperfection, or omission in the record, or for any
error committed on the trial.

34
(2001). In Clay, we adopted the United States Supreme Court’s

test for nonconstitutional harmless error, as articulated in

Kotteakos v. United States, 328 U.S. 750 (1946):

If, when all is said and done, the conviction is
sure that the error did not influence the jury, or
had but slight effect, the verdict and the judgment
should stand . . . . But if one cannot say, with
fair assurance, after pondering all that happened
without stripping the erroneous action from the
whole, that the judgment was not substantially
swayed by the error, it is impossible to conclude
that substantial rights were not affected. . . . If
so, or if one is left in grave doubt, the conviction
cannot stand.

Clay, 262 Va. at 259-60, 546 S.E.2d at 731-32 (quoting

Kotteakos, 328 U.S. at 764-65). Applying the harmless error

test and Code § 8.01-678, I cannot say that the admission of

the Fall Evidence did not influence the jury, particularly in

view of our existing precedent on similar statistical

evidence. Therefore, the error was not harmless.

A cautionary instruction would likewise have been

insufficient under the circumstances. The most common

purposes of cautionary instructions are to cure improper

remarks or comments made in the jury’s presence, see Lewis v.

Commonwealth, 269 Va. 209, 214, 608 S.E.2d 907, 910 (2005), or

to caution the jury when questions by counsel are

inappropriate. See Lowe v. Cunningham, 268 Va. 268, 273, 601

S.E.2d 628, 631 (2004). When considering the prejudicial

nature of a statement or question offered before a jury, we

35
examine the relevance and content of the improper reference,

whether the reference was deliberate or inadvertent in nature,

and the probable effect of the improper reference. Id.

Assuming, arguendo, that a cautionary instruction had

been offered in the case at bar, I believe that the impact of

the Fall Evidence would have made an overwhelming, improper

influence on the outcome of the case for the reasons recited

above. We have held, in the civil context, that “a court is

required to grant a new trial, if requested, when the

prejudicial effect of an improper remark or question is

overwhelming, such that it cannot be cured by a cautionary

instruction.” Id. Particularly in view of our precedent on

the use of statistical evidence like the Fall Evidence, its

impact could not be overcome by a cautionary instruction.

In my view, the Defendants properly preserved their

objection to the admission of Fall Evidence and were under no

requirement to make another objection after the Estate

nonsuited the punitive damages claim. For the reasons stated

above, I conclude the trial court erred in denying the

Defendants’ objections and admitting the Fall Evidence. This

error was not harmless, could not have been cured by a

cautionary instruction and requires reversal of the judgment

of the trial court. Therefore, I respectfully dissent from

36
Part I.B. of the majority opinion and would reverse the

judgment of the trial court and remand for a new trial.

37