Present: All the Justices
DONNA J. GAMACHE, M.D., ET AL.
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
v. Record No. 032321 September 17, 2004
CRAIG ALLEN
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
I.
In this appeal of a judgment entered in favor of
plaintiff in an action for medical negligence against two
health care providers, we consider whether the circuit court
erred by refusing to permit defendants to cross-examine
plaintiff and his witnesses on certain issues that related to
his claim for damages.
II.
A.
Plaintiff, Craig Allen, filed his motion for judgment
against Donna J. Gamache, M.D., her employer, Mid-Atlantic
Health Alliance, Inc., t/a Lee's Hill Medical Associates, and
another physician, Timothy A. Powell, M.D. Plaintiff alleged
that the defendants breached certain duties owed to him by
failing to diagnose and treat a disease that affected his
cervical spine.
Prior to trial, plaintiff filed motions in limine.
Plaintiff informed the circuit court that he intended to
present evidence that would permit the jury to conclude that
he attempted to commit suicide in April 2002 and that this act
was proximately caused by the negligence of the health care
providers. He also informed the court that the health care
providers intended to present evidence that plaintiff's
attempt to commit suicide was related to other factors,
specifically, his wife's alleged abuse of narcotics and his
wife's alleged acts of self-mutilation. Defendants asserted
in the circuit court that they were entitled to show the jury
that these acts caused plaintiff to attempt to commit suicide.
The court granted the motions in limine. The court ruled that
defendants could present evidence regarding depression that
plaintiff's wife suffered, but they could not present evidence
of her alleged abuse of narcotics or her alleged acts of self-
mutilation.
B.
During a jury trial, plaintiff presented the following
evidence. Plaintiff met with Dr. Gamache on June 22, 2000.
He informed her that he had experienced mild anxiety and that
he had used a drug, Ativan (a brand name for Lorazepam), that
had been prescribed by his former physician. Dr. Gamache
prescribed a different anti-anxiety medication, BuSpar
(buspirone hydrochloride), for plaintiff.
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On July 25, 2000, plaintiff placed a telephone call to
Dr. Gamache's office, and he complained of muscle aches,
numbness, and "pins-and-needles" sensations in his arms and
legs. He did not speak with Dr. Gamache, but he spoke with a
receptionist who informed plaintiff that he was possibly
experiencing symptoms associated with the use of BuSpar and
that he should decrease the daily dosage.
Even though plaintiff decreased his dosage of BuSpar as
instructed by Dr. Gamache's office, he experienced additional
problems in his arms and legs. On August 17, 2000, plaintiff
made another telephone call to Dr. Gamache's office and
described his symptoms. Again, he spoke with the
receptionist, not with Dr. Gamache. The receptionist informed
plaintiff that he was merely experiencing side effects of
BuSpar that would last six to eight weeks from the date he
discontinued use of that drug.
Later, someone from Dr. Gamache's office contacted
plaintiff and asked if he desired to come to the office for an
appointment on September 1, 2000. Plaintiff met with Dr.
Gamache on September 1 and described his symptoms to her. Dr.
Gamache did not examine plaintiff and assured him that he was
experiencing symptoms associated with the use of BuSpar. Dr.
Gamache did not think plaintiff's complaints constituted an
emergency.
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Plaintiff's condition continued to deteriorate. He had
difficulty walking, and he lost his fine motor skills. He
contacted Dr. Gamache's office by telephone, and he informed
the receptionist that his symptoms had gotten worse. The
receptionist told plaintiff that Dr. Gamache could see him in
two days. Plaintiff did not accept the appointment because of
other commitments.
Plaintiff's condition deteriorated even further.
However, plaintiff did not seek alternative medical attention
because Dr. Gamache had repeatedly assured him that his
symptoms were not significant. Plaintiff's condition became
worse and subsequently, plaintiff's wife, Anna K. Allen, took
him to the emergency room of the Mary Washington Hospital in
Fredericksburg.
Dr. Richard P. Erwin, a neurologist, treated plaintiff
while he was a patient at the Mary Washington Hospital. Dr.
Erwin's physical examination revealed an abnormality below
plaintiff's neck, and Dr. Erwin immediately suspected that
plaintiff's spinal cord might have been affected. Dr. Erwin
ordered that a magnetic resonance imaging scan (MRI) be taken,
and the image revealed an inflammation of plaintiff's spinal
cord. Dr. Erwin immediately treated plaintiff with high-dose
steroids, and plaintiff was transferred to the Medical College
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of Virginia Hospitals, where he was diagnosed as having
transverse myelitis, an inflammation of the spinal cord.
Dr. Michael Jacobs, an internist, testified that the
health care providers breached the standard of care owed to
plaintiff because they failed to diagnose his condition in a
timely manner. Dr. Douglas Kerr, a neurologist, testified
that plaintiff, who now suffers from irreparable neurological
damage, could have had his condition arrested had the
physicians diagnosed and treated his condition sooner.
Plaintiff presented evidence that he incurred physical
and emotional damages, including major depression, proximately
caused by the defendants' acts of medical negligence. Dr.
Murry J. Cohen, a psychiatrist who qualified as an expert
witness, testified that plaintiff suffered from major
depression, that plaintiff attempted to commit suicide in
2002, and that this attempt was caused by his physical
disabilities associated with transverse myelitis.
Dr. Cohen testified that plaintiff suffered from
depression, which was caused by major "stressors." Dr. Cohen
stated, "I thought it was . . . clearly the fact that he was
suffering from a very severe, albeit not diagnosed,
neurological illness that was causing great distress,
physically and emotionally, and was interfering with his
functioning down the line. And it was clear to me that . . .
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without question, that was the major stressor and the major
precipitant." Dr. Cohen acknowledged that even though
plaintiff was dealing with several stressors in his life,
including his job, financial problems, his marriage, and
relationships, Cohen described these stressors as minor and
testified that plaintiff's illness was the major stressor that
caused his attempt to commit suicide.
Plaintiff presented evidence that his neurological
deficit is profound, his condition will continue to
deteriorate, he has incurred in excess of $96,000 in medical
expenses, he will require future medical care in excess of
$2,500,000, and he has suffered a loss of earning capacity in
excess of $1,100,000.
The jury returned a verdict in favor of plaintiff against
Dr. Gamache and her employer, Mid-Atlantic Health Care
Alliance, in the amount of $6,500,000. The jury returned a
verdict in favor of defendant, Dr. Powell, and he is no longer
a party to this proceeding. Pursuant to Code § 8.01-581.15,
the circuit court reduced the jury's verdict to $1,550,000 and
entered a judgment confirming the verdict. Defendants appeal.
III.
A.
Defendants asserted in the circuit court, and argue in
this Court, that evidence of Mrs. Allen's alleged use of
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narcotics and alleged acts of self-mutilation were relevant
because the jury could have inferred that plaintiff's
attempted suicide was caused by these alleged acts instead of
defendants' negligence. Continuing, defendants contend that
the circuit court abused its discretion when it prohibited
them from eliciting this testimony on the basis that the
probative value of the evidence was outweighed by its
prejudicial effect.
Responding, plaintiff states that defendants were allowed
to introduce evidence of alternative causes of plaintiff's
depression and suicide attempt, such as his financial
problems, difficulties with his job, marital strife, and that
the circuit court did not abuse its discretion when it
prohibited defendants from eliciting the challenged evidence.
Evidence that is factually relevant may be excluded from
the jury's consideration if the probative value of that
evidence is substantially outweighed by the danger of unfair
prejudice. Walker v. Commonwealth, 258 Va. 54, 68, 515 S.E.2d
565, 573 (1999); Coe v. Commonwealth, 231 Va. 83, 87, 340
S.E.2d 820, 823 (1986). In determining whether evidence
should be admitted, the circuit court must apply a balancing
test to assess the probative value of the evidence and its
prejudicial effect. Dandridge v. Marshall, 267 Va. 591, 596,
594 S.E.2d 578, 581 (2004); Brugh v. Jones, 265 Va. 136, 140,
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574 S.E.2d 282, 284-85 (2003). Gray v. Graham, 231 Va. 1, 10,
341 S.E.2d 153, 158 (1986). This determination, however,
rests within the sound discretion of the circuit court and
will only be disturbed on appeal upon a showing of an abuse of
discretion. Dandridge, 267 Va. at 596, 594 S.E.2d at 581;
Lombard v. Rohrbaugh, 262 Va. 484, 492, 551 S.E.2d 349, 353
(2001); Burns v. Commonwealth, 261 Va. 307, 332, 541 S.E.2d
872, 889 (2001); Walker, 258 Va. at 68, 515 at 573; Ingles v.
Diveley, 246 Va. 244, 250, 435 S.E.2d 641, 644 (1993).
Applying these principles, we hold that the circuit court
abused its discretion by refusing to permit defendants to
elicit evidence that plaintiff's depression and attempted
suicide may have been related to his wife's alleged acts of
narcotics abuse and alleged acts of self-mutilation. The jury
was entitled to consider this evidence, which was relevant,
even though this evidence may be potentially damaging to
plaintiff.
In the context of the record before this Court, the
probative value of the challenged evidence is not
substantially outweighed by the danger of unfair prejudice to
plaintiff. Plaintiff presented evidence, as an element of his
damages, that the defendants' acts of negligence proximately
caused his attempt to commit suicide. The defendants,
therefore, are entitled to present evidence that other
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significant events that occurred in plaintiff's life for which
defendants were not responsible were the proximate cause of
plaintiff's attempted suicide. And, even though, as plaintiff
asserts, the jury was aware of alleged alternative causes of
his depression and suicide attempt, the jury was not aware of
defendants' allegations that plaintiff's wife purportedly
abused his narcotic medications and that she purportedly
engaged in acts of self-mutilation.
We disagree with plaintiff's contention that this
challenged evidence is collateral. Plaintiff presented
evidence that his suicide attempt was caused by the
defendants' acts of negligence, and he introduced in evidence
the cost of medical treatment associated with the treatment
necessitated by the suicide attempt. The excluded evidence is
not collateral, but it is relevant to an element of damages
that plaintiff claimed was proximately caused by defendants'
acts of negligence. See Seilheimer v. Melville, 224 Va. 323,
327, 295 S.E.2d 896, 898 (1982).
B.
Defendants sought to present evidence that two
physicians, Dr. Erwin and Dr. Barbara Newberg, who had treated
plaintiff previously, did not believe that he was trustworthy.
Defendants also wanted to elicit evidence that one of
plaintiff's former physicians terminated the patient/physician
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relationship with plaintiff because he had not been truthful
with that physician. Defendants contend that the circuit
court abused its discretion by failing to permit them to
present this evidence to the jury.
We disagree with the defendants. Essentially, the
defendants sought to challenge plaintiff's veracity by
presenting evidence that he had been untruthful with his
former physician. When a litigant impeaches a witness'
reputation for truth and veracity, such evidence must be
confined to the general reputation of the impeached witness
for truth and veracity and may not include the commission of
specific acts of untruthfulness or other bad conduct, even
though these have bearing on veracity. Bradley v.
Commonwealth, 196 Va. 1126, 1133, 86 S.E.2d 828, 833 (1955);
Allen v. Commonwealth, 122 Va. 834, 840, 94 S.E.2d 783, 785
(1918); Langhorne v. Commonwealth, 76 Va. 1012, 1019 (1882).
The circuit court properly refused to permit the
defendants to present evidence of plaintiff's veracity.
Defendants sought to present evidence of specific alleged acts
of untruthfulness, contrary to this Court's well-established
precedent.
C.
Dr. Cohen testified on behalf of the plaintiff. Among
other things, Dr. Cohen discussed plaintiff's depression,
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attempted suicide, and symptoms, including plaintiff's
physical pain. During the defendants' cross-examination of
Dr. Cohen, the following colloquy occurred:
"Q: Is it important that the patient be
forthcoming with you when giving a history?
"A: Yes.
"Q: And you indicated on direct examination
that you did not think that Mr. Allen exaggerated
his pain; correct?
"A: I did not think that; correct.
"Q: Or you do not think that?
"A: I do not think that; correct.
. . . .
"Q: [D]o you believe he has always given you a
full and credible history?
"A: No. I haven't always believed that.
. . . .
"Q: Has he given you any information that was
inconsistent with either information you had heard
otherwise or your clinical examination of the
patient?
"[Plaintiff]: Objection, Your Honor, based on
previous rulings in this case. That's not something
that − the Court has already ruled that's not coming
in.
"[Defendants]: I think the door has been
opened. He stated on direct . . . that he does not
believe he's exaggerated his pain. And this doctor
has said that he's not believed to have always given
a full and credible history. I think this is ripe
for exploration.
"[The Court]: I do not believe he used that.
Objection is sustained."
Defendants argue that the circuit court abused its discretion
when it limited the scope of defendants' cross-examination of
Dr. Cohen. We disagree.
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The circuit court did not abuse its discretion by
limiting the scope of defendants' cross-examination. Dr.
Cohen's statement that plaintiff failed to consistently
provide Dr. Cohen with a full and credible history simply does
not contradict Dr. Cohen's observations of plaintiff's pain or
statements that plaintiff may have made to Dr. Cohen regarding
the extent of plaintiff's pain.
D.
In February 2003, plaintiff was taken to the emergency
room at the Mary Washington Hospital in Fredericksburg. He
had a decreased level of consciousness and "pinpoint pupils."
Dr. Erwin testified that use of narcotics can cause pinpoint
pupils and decreased awareness. Hospital personnel performed
a urine drug screen test on plaintiff's urine sample, and the
test identified the presence of opiates in plaintiff's body.
Opiates are narcotic pain medicines. Defendants contend that
they were entitled to present expert opinion testimony from
Dr. Erwin and Dr. Newberg that plaintiff's hospitalization in
February 2003 was the result of a second suicide attempt. We
will not consider this argument because defendants did not
present an adequate record to this Court, having failed to
make a proffer of any opinions that Dr. Erwin and Dr. Newberg
would have rendered.
IV.
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Plaintiff presented evidence that supports the jury's
findings that defendants Dr. Gamache and her employer, Mid-
Atlantic Health Alliance, breached the standard of care owed
to him. Defendants' assignments of error do not challenge the
jury's findings that defendants were negligent. Therefore,
upon retrial, these findings will be binding upon the
defendants, and plaintiff will not be required to establish
that the defendants were negligent. Plaintiff will only be
required to establish proximate causation and damages. Also,
upon retrial, defendants will be permitted to present evidence
of plaintiff's wife's alleged acts of narcotics abuse and
self-mutilation.
Accordingly, we will affirm that portion of the judgment
that confirmed the jury's findings that the defendants were
negligent. We will remand this case for a new trial limited
to the issues of proximate causation and damages.
Affirmed in part,
reversed in part,
and remanded.
JUSTICE LACY, with whom JUSTICE KINSER joins, concurring in
part and dissenting in part.
I concur in the majority's conclusions regarding
presentation of evidence of Allen's veracity, the cross-
examination of Dr. Cohen, and opinion testimony of Drs. Erwin
and Newberg; however, I respectfully dissent from the
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majority's conclusion that the trial court's refusal to allow
evidence that Mrs. Allen allegedly abused narcotics and
engaged in self-mutilation was reversible error.
The majority opinion recites that defendants argued that
Mrs. Allen's alleged use of narcotics and alleged acts of
self-mutilation "caused" plaintiff's suicide attempt. Based
on this characterization, the majority opinion concludes that
defendants were entitled to present evidence that such acts
"were the proximate cause of plaintiff's attempted suicide."
(Emphasis added.) The record, however, contains no instance
in the trial court in which the defendants asserted that Mrs.
Allen's alleged acts were the proximate cause of Mr. Allen's
suicide attempt.
At trial, defendants argued that the evidence at issue
should have been admitted because it showed that the wife's
actions were "one of the main motivations for [Allen's]
suicide attempt," that Allen's neurological condition "was not
his main reason for attempting suicide," and that Mrs. Allen's
abuse of narcotics was "one of the reasons" Allen attempted
suicide.
Defendants' opening brief before this Court states that
at the hearing on Allen's motion in limine Gamache argued that
Mrs. Allen's actions "contributed to" Allen's stress and
suicide attempt. Defendants also assert on brief that the
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evidence at issue should have been admitted to show that "a
major reason for Allen's suicide attempt" was Mrs. Allen's
alleged narcotic abuse and self-mutilation. In their reply
brief, the defendants argue that the jury should have had this
evidence "to determine whether or not Gamache's treatment of
[Allen] 18 months prior was the proximate cause of the suicide
attempt." And had the jury had this evidence, "they could
well have concluded that Allen was untruthful when he laid all
the responsibility for his actions at Gamache's feet."
At no time did the defendants argue that Mrs. Allen's
actions were the proximate cause of Allen's suicide attempt.
Every argument made refers to Mrs. Allen's acts as additional
causes of the attempted suicide; there was no argument
presented that the defendants' negligence was not a proximate
cause. Indeed, Allen did not argue that Gamache's negligence
was the cause of his suicide attempt. Rather, Allen argues
such negligence was one of the causes.
A fundamental tenet of Virginia tort law holds that a
party is responsible for injuries caused by his negligence
even if the acts of others contributed to the injuries unless
those other acts constituted an intervening, superseding cause
of the injury. Coleman v. Blankenship Oil Corp., 221 Va. 124,
131, 267 S.E.2d 143, 147 (1980); Von Roy v. Whitescarver, 197
Va. 384, 393, 89 S.E.2d 346, 352 (1955). Applying the
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position taken by the defendants on this issue throughout
these proceedings, Mrs. Allen's acts as "a major reason," "one
of the reasons," or "one of the main reasons" for Allen's
suicide attempt, were only a proximate cause of Allen's
injuries resulting from his suicide attempt. Mrs. Allen's
alleged actions would not negate Gamache's negligence as a
proximate cause of Allen's injuries. Accordingly, I conclude
that the failure to admit the evidence in issue was harmless
error and I would affirm the judgment of the trial court in
its entirety.
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