Present: Hassell, C.J., Lacy, Keenan, Koontz, and Lemons,
JJ., and Compton and Russell, S.JJ.
DANNY R. HOLLEY OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 042275 June 9, 2005
DANIEL J. PAMBIANCO, M.D., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Paul F. Sheridan, Judge Designate
This appeal in a medical malpractice case concerns the
admissibility of evidence tending to prove the inherent risks
of the treatment that led to the plaintiff’s injury.
Facts
On November 28, 2000, Danny R. Holley was admitted to
Martha Jefferson Hospital in Charlottesville as an outpatient
to undergo a scheduled colonoscopy to be performed by Daniel
J. Pambianco, M.D., a gastroenterologist. During the
colonoscopic examination, Dr. Pambianco discovered two sessile
polyps in the colon, each about one centimeter in diameter.
He removed both of them by a “hot biopsy forcep[s]” technique
in which forceps, threaded through the colonoscope tube, carry
an electric current to the site in order to cauterize the
tissue.1
1
The record shows that a “colonoscopy” is a procedure
whereby a “colonoscope,” a flexible device containing a light
source, a series of lenses, and a facility to insert air to
distend the colon and fluids to wash the lenses, is inserted
into the colon to permit a thorough examination of its
Holley was driven home by his wife after the procedure
and went to bed. That night he was unable to eat or drink and
suffered abdominal distension and soreness. The next day, he
called Dr. Pambianco’s office, describing his symptoms. A
nurse told him that his symptoms were normal and that he
should walk. Later that day, the nurse called him and advised
him to keep walking, to drink hot tea and to take a
prescription that she would call in to his pharmacy. His
symptoms grew worse and on December 3, five days after the
operation, he called Dr. Pambianco’s office again, describing
his condition. This time, Dr. Byrd S. Leavell, a colleague of
Dr. Pambianco, returned his call and told him to report
immediately to the emergency room at the hospital. Upon
examination, he was found to have a perforated colon leaking
into the abdominal cavity, causing peritonitis. He was given
a colostomy and spent ten days in the hospital, seven of them
in intensive care. He was released with a colostomy bag
attached to his side. Several months later, he underwent a
interior walls. The instrument also contains a channel
through which surgical instruments may be introduced into the
colon. “Polyps,” sometimes found attached to the interior
colon walls, are abnormal growths protruding inward. Because
they may be or become cancerous, they are removed, if
possible, during a colonoscopic procedure. Such a removal is
called a “polypectomy.” Polyps may either be “pedunculated”
(attached to the colon wall by a narrow stem and more easily
removed) or “sessile” (having a broad base attached to the
colon wall).
2
third operation to close the colostomy and restore the
continuity of the colon.
Proceedings
Holley brought this medical malpractice action against
Dr. Pambianco and the medical group of which he was a member.
The case was tried before a jury and resulted in a verdict for
the defendants. We awarded Holley an appeal limited to two
issues: (1) Whether the trial court erred by admitting
evidence of the risks of perforation of the colon during a
colonoscopy and polypectomy and permitting defense counsel to
argue to the jury, in a case in which informed consent was not
in issue, that such risks were normal, and (2) whether the
trial court erred by refusing to instruct the jury that Dr.
Pambianco’s failure to give the plaintiff discharge
instructions constituted negligence per se.
In pretrial proceedings, the parties agreed that no
evidence or argument would be permitted with regard to a lack
of informed consent and the court entered an order to that
effect. Holley filed a motion in limine, requesting the court
to preclude the admission of any evidence concerning the known
risks of colonoscopy and polypectomy, any discussion of such
risks with him, and whether he had any awareness of the risks.
Holley relied on our recent decision in Wright v. Kaye, 267
Va. 510, 593 S.E.2d 307 (2004). There, we held that where a
3
lack of informed consent is not in issue in a medical
malpractice case, evidence of information given to the patient
concerning the risks of surgery is irrelevant to the sole
issue in the case: Whether the physician departed from the
standard of care. We observed that such evidence “could only
serve to confuse the jury because the jury could conclude
. . . that consent to the surgery was tantamount to consent to
the injury. . . .” Id. at 528-29, 593 S.E.2d at 317.
Dr. Pambianco responded by pointing out a difference
between Wright and the present case. In Wright, the patient's
conduct after surgery was not in issue. Here, the defense
contends that Holley, having been informed of the risks of
perforation of the colon, had a duty to mitigate his damages
by making prompt report of his post-operative symptoms and
that his four-day delay in doing so greatly exacerbated his
injuries. The defense informed the court that the evidence
would support jury instructions on both mitigation of damages
and contributory negligence.2
The court took the question under advisement and
ultimately ruled that the evidence would be admitted only for
the limited purpose of the defendants’ contentions concerning
2
The defense ultimately decided not to ask for an
instruction on contributory negligence. The court did give
the jury an instruction covering the plaintiff’s duty to
"minimize" his damages.
4
mitigation of damages and contributory negligence. The court
stated that jury instructions would ensure that the jury would
not consider such evidence in connection with the plaintiff’s
contention that the physician had departed from the standard
of care.3
At trial, Holley introduced an expert witness who
testified that there are inherent risks in the use of a “hot
biopsy forceps” technique in the removal of sessile polyps
because the electric current sufficient to remove the polyp
tissue may also be strong enough to burn a hole in the wall of
the colon, particularly in areas where the colon wall is thin.
It was his opinion that Dr. Pambianco had departed from the
applicable standard of care by using that technique to remove
polyps in the transverse colon, where the wall is typically
thin, and that in the circumstances of this case, the standard
would have required use of a “cold biopsy technique” instead,
3
The court gave the following instruction:
"During this trial, evidence was introduced
that Mr. Holley may have received information about
the risks associated with his colonoscopy. Whether
or not Mr. Holley received such information is only
relevant to the issue of whether Mr. Holley used
ordinary care to mitigate his damages. You may not
consider that evidence on the issue of whether
defendants breached the applicable standard of care.
By consenting to the surgery, Mr. Holley did not
consent to any adverse consequences, known or
unknown."
5
whereby the polyps would be removed surgically, in small
pieces, without using an electric current.
In cross-examination of the plaintiff’s expert witness,
defense counsel elicited the statistical frequency of
perforations of the colon wall during all colonoscopies and
polypectomies. The court overruled the plaintiff’s objection
to this testimony. The witness stated that perforations occur
at the rate of 1 per 10,000 in colonoscopies and 13 per 10,000
in polypectomies. During the defendants’ case, defense
counsel elicited similar testimony from Dr. Pambianco and each
of the two expert witnesses called in his behalf, although all
gave differing numbers. Each of the three expert witnesses,
however, in response to questioning by plaintiff’s counsel,
testified that the statistics contained no breakdown between
those cases involving perforations caused by negligence and
those that did not.
Over plaintiff’s objection, defense counsel, in his
closing argument to the jury, referred to this testimony in
the context of the standard of care: “I’m arguing
statistics. . . . [T]hat risk factor cannot be taken out of
the procedure. You can do everything exactly the way you’re
supposed to do it, and you can be absolutely prudent,
absolutely careful and we still have a situation like that
that occurred with Mr. Holley.”
6
Analysis
That argument, and the statistical evidence on which it
was based, had nothing to do with the issue of mitigation of
damages. Its admission was error for the reasons discussed in
Wright.
Further, the argument 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. The statistical evidence was so misleading that,
for all the jury could determine, each of the perforations of
the colon contained in the statistics may have been due to a
physician’s negligence. In that event, the jury could infer
the direct opposite of defense counsel’s argument: That
perforations occur only where the physician is negligent. See
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 day visited grocery store without injury
inadmissible as misleading and throwing no light upon the
facts of the case before the jury). We conclude that such raw
statistical evidence is not probative of any issue in a
medical malpractice case and should not be admitted.
7
Because the case must be remanded, we will discuss other
issues that may arise in any further proceedings in the trial
court. The trial court did not err in ruling that the defense
had the right to attempt to prove that the plaintiff had
failed to mitigate his damages. See Sawyer v. Comerci, 264
Va. 68, 76-77, 563 S.E.2d 748, 753 (2002). In that
connection, the defense had the right to adduce competent
evidence that Holley had been warned of the danger of
complications that might result from his surgery, of the
symptoms that would signal such complications, and of the need
to make prompt report of any such symptoms in order that
appropriate and timely remedial steps could be taken. The
jury would be entitled to consider any failure or undue delay
on his part in doing so, in the light of his condition at the
time.
The evidence offered at trial in support of that defense
included a videotape shown to Holley in Dr. Pambianco’s office
about six weeks before his colonoscopy. Prepared by the
American Gastroenterological Association, the tape was less
than 10 minutes in length and was designed to be shown to
patients contemplating future colonoscopy. Generally
reassuring in tone, the tape contained only two caveats upon
which the defense relied:
8
Although colonoscopy is a safe procedure, complications
can occur rarely. These include perforation; that is,
puncture of the colon wall which could require surgical
repair.
. . . .
Occasionally minor problems may persist, such as
bloating, gas or mild cramping. These should disappear
in 24 hours or less.4
The foregoing language contains no warning to the patient
that a burden was being imposed upon him to take any post-
operative steps for his own protection. Its reassuring tone
was more conducive to the opposite conclusion: That the
procedure was "safe," that complications occur "rarely," that
post-operative problems persist only "occasionally," and that
if they do they "should disappear in 24 hours or less." It
had no tendency to prove that Holley had failed to mitigate
his damages and its admission was error.
In further support of their defense of failure to
mitigate damages, the defendants relied on certain post-
operative instructions allegedly given by hospital personnel
4
By his motion in limine, Holley sought exclusion of the
entire tape as unrelated to the issue of the standard of care.
The defense asked for admission only of that portion of the
tape containing the language quoted above, as relevant to the
issue of mitigation of damages. The trial court denied
Holley's motion and ruled that the portion sought by the
defense would be admitted, but advised counsel that the entire
tape would be admitted, if Holley so desired, for the sake of
completeness. Ultimately, Holley chose that alternative and
the entire tape was shown to the jury.
9
to Holley’s wife5 and on the content of his two telephone
conversations with Dr. Pambianco’s nurse on the day after his
surgery. These matters were probative as to the defense of
mitigation of damages and the trial court did not err in
admitting them. Their weight and sufficiency, of course, were
issues for the jury, which was entitled to consider their
content, their timing, and the patient’s ability to comprehend
them. See Lawrence v. Wirth, 226 Va. 408, 412-13, 309 S.E.2d
315, 317 (1983).
5
There was a conflict in the evidence whether Holley
received post-operative instructions. He and his wife
testified that they did not recall receiving them. The
defendants relied on the standard discharge instructions
traditionally given at the hospital after colonoscopy
procedures. The plaintiff argued that no reference was made
to such instructions in his hospital chart and that therefore
the court should hold that none were given and that this
failure on Dr. Pambianco’s part constituted negligence per se.
The defense failed to produce any discharge instructions in
response to discovery, having received none in response to a
subpoena of the hospital’s records. On the evening before
trial, Dr. Pambianco visited the hospital and found a form,
signed by Holley, acknowledging receipt of discharge
instructions. The court refused to admit the form into
evidence at trial because of the lateness of its production,
but Holley’s counsel stated that Holley agreed that the
signature on it was his. The court instructed the jury: “A
physician who has performed surgery has a duty to have his
patient receive post[-]operative instructions.” The court
refused plaintiff’s proposed instruction stating that the
physician’s failure to give discharge instructions would
constitute negligence per se. The court correctly ruled that
the question whether discharge instructions were actually
given was an issue of fact for the jury. Because the peculiar
factual circumstances of the trial, especially the timing of
the production of the hospital form, are unlikely to reoccur
10
Conclusion
For the reasons stated above, we will reverse the
judgment of the trial court and remand the case for further
proceedings consistent with this opinion.
Reversed and remanded.
in any future proceedings, we do not reach the assignment of
error relating to these instructions.
11