Pettus v. Gottfried

PRESENT: All the Justices

PAMELA K. PETTUS, EXECUTOR OF THE
ESTATE OF REGINALD H. PETTUS, DECEASED

v. Record No. 040915 OPINION BY JUSTICE BARBARA MILANO KEENAN
January 14, 2005
IRVING S. GOTTFRIED, M.D., P.C., ET AL.

FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY
Joseph E. Spruill, Jr., Judge Designate

In this appeal, we consider whether the circuit court erred

in permitting the defendants to introduce into evidence certain

deposition testimony of the decedent’s treating physicians.

On March 17, 2000, plaintiff’s decedent, Reginald H.

Pettus, arrived at Southside Community Hospital (the hospital)

in Farmville complaining of chest pain. Dr. Robert B. Evans, an

emergency room physician, treated Pettus on his arrival. Dr.

Evans administered oxygen to Pettus, gave him nitroglycerin, and

ordered several tests, including an electrocardiogram (EKG).

Dr. Evans reviewed the EKG results, which showed an “atrial

flutter” that was not present on an EKG taken a year earlier.

Uncertain whether Pettus should be admitted to the hospital, Dr.

Evans called Dr. Irving S. Gottfried, who previously had treated

Pettus, and requested that Dr. Gottfried examine him.

Dr. Gottfried is a gastroenterologist who, one year before

the events at issue, had reviewed an EKG performed on Pettus.

When called to the hospital by Dr. Evans, Dr. Gottfried examined

Pettus, evaluated the EKG ordered by Dr. Evans, and released
Pettus with orders to return for a “follow up” appointment on

March 20, 2000.

On March 20, 2000, Dr. Girish Purohit, a cardiologist,

admitted Pettus to the hospital. Pettus was not experiencing

chest pain at the time of his admission. He stayed in the

hospital overnight and received an echocardiogram the next

morning.

Later that morning, Pettus became restless and began

“wheezing.” Dr. Purohit altered Pettus’s medications and

ordered a neurology consultation to evaluate Pettus’s mental

status. A few hours later, Pettus had a seizure, stopped

breathing, and ultimately died.

Pamela K. Pettus (the plaintiff), filed a wrongful death

action against Dr. Gottfried and his professional corporation,

and certain other defendants,1 alleging that Pettus died as a

result of negligent medical treatment he received at the

hospital. The plaintiff contended that Dr. Gottfried

incorrectly diagnosed Pettus’s chest pain and negligently

discharged him from the hospital at the time of an impending

myocardial infarction, or heart attack. Dr. Gottfried filed

1
The other named defendants, Drs. Evans and Purohit, and
their corporate employers, were dismissed by nonsuit before
trial.

2
grounds of defense, in which he stated that he complied with the

applicable standard of care and denied that his conduct caused

Pettus’s death.

At trial, the plaintiff presented evidence from two

physicians who qualified as expert witnesses and testified

before the jury. The plaintiff also read into evidence portions

of the discovery depositions of Drs. Evans, Purohit, and

Gottfried.2

Before the defendants presented their case, the plaintiff

asked the circuit court to exclude portions of the deposition

testimony that Dr. Gottfried had designated for introduction

into evidence. The plaintiff objected to the admission of the

following testimony by Dr. Purohit:3

Q: And it was your opinion that that was a central
nervous system event?

A: It could have been, yes.

Q: Do you have an opinion within the reasonable
degree of medical certainty what the cause of Mr.
Pettus’ death was?

A: No. In fact, that’s the reason why many times we
feel that unless an autopsy is done, it’s really
difficult to know what may have happened.

2
Before trial, the parties designated the portions of
deposition testimony they intended to introduce.
3
The plaintiff objected to a second portion of Dr.
Purohit’s deposition testimony, but does not address that
portion on appeal.

3
 The plaintiff argued that this deposition testimony was

inadmissible because it was speculative and contained expert

opinion testimony that was not stated to a reasonable degree of

medical probability. The circuit court overruled the

plaintiff's objection, and allowed Dr. Gottfried to read the

above testimony to the jury.

The plaintiff also objected to several portions of Dr.

Evans’s deposition that Dr. Gottfried intended to introduce into

evidence.4 The plaintiff objected to the following exchange:

Q: Do you know whether or not Mr. Pettus was still
experiencing chest pain at the time of discharge?

A: I know my nurses, and I’m pretty sure that if he
had had chest pain, it would have been brought to
either my attention or Dr. Gottfried [sic]
attention.

. . . .

Q: Prior to Dr. Gottfried getting to the hospital,
had you formed any intention of trying to have
Mr. Pettus admitted or running further tests?

A: I felt like he could probably go either way, but
it would be best to be evaluated by a person who
knew him.

Q: Going either way being what?

A: Possibly an admission, depending on what Dr.
Gottfried knew about him versus going home for
outpatient follow-up.

4
The excerpt that follows is the only portion of Dr. Evans’
deposition that the plaintiff addresses in this appeal.

4
The plaintiff argued that the testimony was speculative, and

also contended that the documentation provision of Code § 8.01-

399(B) barred its admission. The circuit court overruled the

plaintiff's objection, concluding that the testimony was a

“complete statement” of Dr. Evans’s actions and served to

explain matters that were already in evidence.

Dr. Gottfried read all the contested portions of deposition

testimony to the jury, and he also testified in his own defense.

The jury returned a verdict in favor of Dr. Gottfried and his

professional corporation, and the circuit court entered final

judgment in accordance with the jury verdict. The plaintiff

appeals.

The plaintiff argues that the circuit court erred in

admitting into evidence the above-referenced portions of Dr.

Purohit’s deposition because they were expert opinions that were

not stated to a reasonable degree of medical probability. The

plaintiff argues that the testimony therefore was speculative,

and she further asserts that the testimony failed to meet the

provisions of Code § 8.01-399(B) relating to documentation.

The plaintiff also contends that the circuit court erred in

admitting the above-referenced segments of Dr. Evans’s

deposition testimony. The plaintiff argues that Dr. Evans’s

testimony, that his nurses would have noted any complaint of

pain made by Pettus at the time he was discharged, was

5
speculative because Dr. Evans did not have any personal

knowledge concerning the nurses’ actions. The plaintiff also

maintains that the circuit court erred in admitting Dr. Evans’s

testimony whether he intended to have Pettus admitted to the

hospital. She alleges that this testimony was inadmissible

because it was speculative and was not supported by

documentation in Pettus’s medical records.

In response, Dr. Gottfried argues that the plaintiff waived

her objection to the admissibility of Dr. Purohit’s and Dr.

Evans’s testimony because she offered testimony of the same

character in her case-in-chief. Dr. Gottfried asserts that the

plaintiff introduced portions of Dr. Purohit’s deposition

testimony expressing an opinion concerning the cause of Pettus’s

death that were not stated to a reasonable degree of medical

probability, including the following testimony:

Q: And what is the significance of myocardial
ischemia if in fact the patient had myocardial
ischemia?

A: It just means that there are changes in the
electrocardiogram which may reflect that the
heart muscle may not be getting enough blood, and
therefore, oxygen.

Q: And one of the causes of not getting enough blood
could be –

A: Coronary artery disease, yes.

. . . .

Q: And that’s the atrial flutter?

6
 A: Yes. All these things are written here in the
same order, so the reading was atrial flutter and
that there are some changes that are subtle, but
they do suggest that there may have been a heart
attack affecting the inferior wall or the bottom
part of the heart.

Regarding Dr. Evans’s testimony, Dr. Gottfried asserts that

because Dr. Evans’s duties included evaluating whether a patient

required admission to the hospital, Dr. Evans’s deposition

testimony on this subject was admissible. Dr. Gottfried also

argues that because the plaintiff introduced portions of Dr.

Evans’s testimony that were not documented in the medical

record, the plaintiff has waived her objection to the disputed

portions of Dr. Evans’s testimony. Dr. Gottfried points to the

following exchanges, among others, to illustrate his contention

that the plaintiff introduced evidence of the same character as

the evidence that she now challenges.

Q: Given nitroglycerine. Does that say with little
improvement?

A. Times one with a little improvement.

Q: What significan[ce], if any, did that have for
you in making a differential diagnosis?

A: Well, one would expect, although nothing in
medicine is absolute, that nitroglycerine would
improve cardiac chest pain.

. . . .

Q: Shortness of breath?

A: Uh-huh (yes).

7
 Q: That would be consistent also with a cardiac
problem?

A: It could.
. . . .

Q: And what was your interpretation of the EKG?

A: That he was in a flutter pattern, had perhaps
some ischemic changes to his EKG.

Q: And where were the ischemic changes located on
the EKG?

A: V1, V2, V3, little bit of V4 and V5.

Q: And what was the significance to you of the
ischemic changes in those areas?

A: Well, it could certainly be an indication that
something cardiac was going on.

Dr. Gottfried also argues that the evidence he introduced

from Dr. Purohit’s and Dr. Evans’s depositions complied with the

requirements of Code § 8.01-399(B). Dr. Gottfried asserts that

both doctors testified as Pettus’s treating physicians rather

than as expert witnesses and did not discuss a diagnosis. Thus,

Dr. Gottfried contends that their testimony was not required to

meet the standard of a reasonable degree of medical probability.

Dr. Gottfried also maintains that both doctors’ testimony was

limited to the facts surrounding their treatment of Pettus, that

these facts were consistent with the medical records and, thus,

that the testimony was admissible under the statute.

8
 We begin our consideration of these issues by stating the

provisions of Code § 8.01-399(B) that are relevant to this

appeal. That section provides, in material part:

B. If the physical or mental condition of the patient
is at issue in a civil action, the diagnosis or
treatment plan of the practitioner, as documented in
the patient’s medical record, during the time of the
practitioner’s treatment, together with the facts
communicated to, or otherwise learned by, such
practitioner in connection with such attendance,
examination or treatment shall be disclosed but only
in discovery pursuant to the Rules of Court or through
testimony at the trial of the action. . . . Only
diagnosis offered to a reasonable degree of medical
probability shall be admissible at trial.

The purpose of this statute is to define the scope of

discovery and trial testimony that may be required of a treating

physician when the physical or mental condition of a patient is

at issue in a civil action. The plain language of the statute

places within the scope of discoverable and admissible

information the diagnosis or treatment plan of the treating

physician as documented in the patient’s medical record. Also

within the scope of discoverable and admissible information are

the facts communicated to the treating physician and any other

facts learned by that physician in connection with his care of

the patient. However, when a party seeks at trial to admit

evidence of a treating physician’s diagnosis, such evidence is

admissible only if it is offered to a reasonable degree of

medical probability.

9
 We first consider Dr. Purohit’s testimony that Pettus’s

mental disorientation “could have been” a central nervous system

event. Dr. Purohit’s answer was given in response to defense

counsel’s question whether during the course of treating Pettus,

Dr. Purohit had formed an opinion about the cause of Pettus’s

abrupt change in mental status. Viewed in this context, Dr.

Purohit’s answer was factual in nature because it served to

explain the impressions and conclusions he reached while

treating Pettus. The answer did not impart an expert medical

opinion at trial because Dr. Purohit was not stating his present

opinion regarding Pettus’s mental disorientation and the

functioning of his central nervous system. Likewise, Dr.

Purohit was not providing a diagnosis at this point in his

testimony. Thus, the testimony was not subject to the general

rule that a medical expert opinion must be rendered to a

reasonable degree of medical probability. See Code § 8.01-

399(B); State Farm Mut. Auto. Ins. Co. v. Kendrick, 254 Va. 206,

208-09, 491 S.E.2d 286, 287 (1997); Fairfax Hosp. System v.

Curtis, 249 Va. 531, 536, 457 S.E.2d 66, 69 (1995); Spruill v.

Commonwealth, 221 Va. 475, 479, 271 S.E.2d 419, 421 (1980).

We disagree with the plaintiff’s contention that Dr.

Purohit’s answer was nevertheless inadmissible under Code

§ 8.01-399(B) because it deviated from the entries in his

medical records. The medical records prepared by Dr. Purohit

10
refer to the possibility of a central nervous system embolic

event. Therefore, any distinction to be drawn between this

written entry and Dr. Purohit’s testimony did not affect the

admissibility of the testimony but was a proper subject for

cross-examination of the witness.

We next consider Dr. Purohit’s response to defense

counsel’s question, “Do you have an opinion within a reasonable

degree of medical certainty what the cause of Mr. Pettus’ death

was?” After responding that he did not, Dr. Purohit then added,

“In fact, that’s the reason why many times we feel that unless

an autopsy is done, it’s really difficult to know what may have

happened.” This statement did not address Dr. Purohit’s actions

and impressions formed during the course of his treatment of

Pettus. Instead, the statement indicated Dr. Purohit’s present

opinion that, in many cases, he and other physicians believe

that an autopsy is necessary to determine the cause of a

patient’s death. Thus, this answer offered an expert opinion

that was speculative in nature and inadmissible because it was

not stated to a reasonable degree of medical probability. See

John v. Im, 263 Va. 315, 320, 559 S.E.2d 694, 696 (2002);

Kendrick, 254 Va. at 208-09, 491 S.E.2d at 287; Curtis, 249 Va.

at 536, 457 S.E.2d at 69; Spruill, 221 Va. at 479, 271 S.E.2d at

421.

11
 We find no merit in the defendants’ contention that the

plaintiff is barred from challenging the admissibility of this

“autopsy” opinion because she offered evidence of the same

character when she examined Dr. Purohit as a witness in the

plaintiff’s own case. The scope of the “same character” rule is

not as broad as the defendants contend.

The general rule is that when a party unsuccessfully

objects to evidence that he considers improper but introduces on

his own behalf evidence of the same character, he waives his

objection to the other party’s use of that evidence. Drinkard-

Nuckols v. Andrews, 269 Va. ___, ___, ___ S.E.2d ___, ___ (2004)

(decided today); Combs v. Norfolk & Western Ry. Co., 256 Va.

490, 499, 507 S.E.2d 355, 360 (1998); Hubbard v. Commonwealth,

243 Va. 1, 9, 413 S.E.2d 875, 879 (1992). Although the rule is

most often applied in cases when the party making the objection

later introduces the same evidence, “it is properly and

logically applicable in any case, regardless of the order of

introduction, if the party who has brought out the evidence in

question, or who has permitted it to be brought out, can be

fairly held responsible for its presence in the case.” Whitten

v. McClelland, 137 Va. 726, 741, 120 S.E. 146, 150 (1923).

The rule, however, is not applicable to matters elicited in

the cross-examination of a witness or in the introduction of

rebuttal evidence. Drinkard-Nuckols, 269 Va. at ___, ___ S.E.2d

12
at ___ ; Snead v. Commonwealth, 138 Va. 787, 801, 121 S.E.2d 82,

86 (1924); see Brooks v. Bankson, 248 Va. 197, 207, 445 S.E.2d

473, 478 (1994); Combs, 256 Va. at 499, 507 S.E.2d at 360. We

generally have applied the rule as a waiver of a party’s

objection to the admission of certain evidence when that party

has elicited evidence dealing with the same subject as part of

his own case-in-chief. See, e.g., Drinkard-Nuckols, 269 Va. at

___, ___ S.E.2d at ___ (plaintiff’s use of testimony regarding

physicians’ expectations created waiver of objection to

defendant’s use of testimony on same subject); Combs, 256 Va. at

499, 507 S.E.2d at 360 (plaintiff’s use of same exhibits in

presenting demonstrative evidence created waiver of objection to

defendant’s use of those exhibits in presenting evidence);

Hubbard, 243 Va. at 9-10, 413 S.E.2d at 879 (defendant’s use of

reconstruction opinion evidence regarding speed of defendant’s

vehicle created waiver of objection to Commonwealth’s use of

evidence on same subject). But see, e.g., Hoier v. Noel, 199

Va. 151, 155, 98 S.E.2d 673, 676 (1957) (plaintiff's

introduction as rebuttal evidence testimony regarding

defendant's driving habits created waiver of objection to

defendant's introduction of testimony on same subject).

The defendants, however, effectively ask us to enlarge the

rule’s scope to apply this waiver principle to any purported

violation of the same rule of evidence even when the subject

13
matter of the testimony or exhibit at issue is not the same. We

decline the defendant’s request because the rule properly

focuses on a party’s introduction of evidence on the same

subject and was never intended to create a waiver permitting the

consideration of inadmissible evidence on a different subject.

We will not apply the rule in distortion of its purpose. See

Brooks, 248 Va. at 207, 455 S.E.2d at 479. Thus, we conclude

that the plaintiff’s presentation of evidence from Dr. Purohit

on the subjects of myocardial ischemia, coronary artery disease,

and atrial flutter did not constitute a waiver of her objection

to his opinion testimony concerning the need for an autopsy, and

that the circuit court erred in admitting this opinion

testimony.5

We turn now to consider the circuit court’s decision

overruling the plaintiff’s objections to Dr. Evans’s testimony.

The first objection addressed Dr. Evans’s testimony that he knew

his nurses and was “pretty sure” that they would have told him

if Pettus had complained of chest pain at the time of his

discharge. We agree with the plaintiff that this testimony was

inadmissible because it was purely speculative and was not based

5
Because the plaintiff’s evidence did not address the
subject of autopsies and thus did not create a waiver of her
earlier objection to Dr. Purohit’s testimony on that subject, we
need not consider whether the testimony she introduced without
objection from the defendants contained expert opinions not
stated to a reasonable degree of medical probability.

14
on any information concerning Pettus’s complaints of pain that

Dr. Evans received from his nurses. See Brown v. Corbin, 244

Va. 528, 531-33, 423 S.E.2d 176, 178-79 (1992).

We find no merit in the defendants’ contention that the

plaintiff waived any objection to the admission of this evidence

by eliciting from Dr. Evans the above-quoted testimony

concerning chest pain, dementia, and the significance of

Pettus’s EKG results. These matters did not address the subject

whether Dr. Evans’s nurses accurately reported any complaints of

chest pain made by Pettus at the time of his discharge, but

addressed Dr. Evans’s evaluation of the significance of the

stated factors in assessing Pettus’s condition. Therefore, we

conclude that the plaintiff did not waive her objection to Dr.

Evans’s testimony about his nurses by introducing this other

evidence about Pettus’s condition.

Finally, we consider whether the circuit court erred in

allowing Dr. Evans to testify about the conclusions he reached

when treating Pettus regarding a possible admission to the

hospital. We hold that the circuit court did not err.

As Dr. Evans testified, part of his job was to evaluate

patients to determine whether they required further treatment by

a physician who had admitting privileges at the hospital. Dr.

Evans’s testimony relating to his evaluation whether Pettus

should be admitted was not a statement of Dr. Evans’s present

15
opinion, but was an explanation of his treatment plan for the

patient and the impressions he formed at that time. Therefore,

the testimony at issue was factual in nature and was not subject

to the general rule requiring that an expert medical opinion be

stated to a reasonable degree of medical probability. See Code

§ 8.01-399(B); Kendrick, 254 Va. at 208-09, 491 S.E.2d at 287;

Curtis, 249 Va. at 536, 457 S.E.2d at 69; Spruill, 221 Va. at

479, 271 S.E.2d at 421.

The plaintiff contends that Dr. Evans’s answer was

nonetheless barred by Code § 8.01-399(B) because that

information did not appear in Dr. Evans’s medical records or

reflect facts communicated or learned by Dr. Evans during his

treatment of Pettus. We disagree with the conclusion advanced

by the plaintiff.

Code § 8.01-399(B) specifically permits evidence of a

treating physician’s treatment plan, as documented in the

patient’s medical record, to be elicited through testimony at

trial. Dr. Evans’s answers directly related to his treatment

plan for Pettus. However, the record is not clear whether the

plaintiff has placed Pettus’s complete medical records before

this Court on appeal. Thus, we cannot say that those records

lacked any documentation regarding the hospital admission aspect

of Dr. Evans’s treatment plan. As Dr. Evans observed in his

testimony, he made written notations on various parts of

16
Pettus’s chart that were recorded separately from his

handwritten emergency department entries dealing with his

treatment of Pettus.

When a party seeks to have an issue decided in her favor on

appeal, she is charged with the responsibility of presenting an

adequate record from which the appellate court can determine the

merits of her argument. Commonwealth v. Williams, 262 Va. 661,

669, 553 S.E.2d 760, 764 (2001); McDonald v. National Enters.,

262 Va. 184, 195, 547 S.E.2d 204, 211 (2001). Because the

plaintiff has not established that she complied with this

requirement, we are unable to resolve the merits of her argument

involving those complete records. See Williams, 262 Va. at 669,

553 S.E.2d at 211; McDonald, 262 Va. at 195, 547 S.E.2d at 764.

For these reasons, we will affirm in part, and reverse in

part, the circuit court’s judgment and remand the case for a new

trial consistent with the principles expressed in this opinion.

Affirmed in part,
reversed in part,
and remanded.

17