Present: All the Justices
OSCAR JOHNSON, ADMINISTRATOR
OF THE ESTATE OF CYNTHIA Y. BELL,
DECEASED
v. Record No. 012009 OPINION BY JUSTICE ELIZABETH B. LACY
June 7, 2002
JOSEPH JOHN RAVIOTTA, M.D., ET AL.
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
Charles L. McCormick, III, Judge Designate
In this appeal from an adverse judgment in a medical
malpractice case, Oscar Johnson, administrator of the estate of
Cynthia Y. Bell, claims that certain evidence did not meet the
corroboration requirements of Code § 8.01-397 as a matter of
law and, therefore, the trial court erred in instructing the
jury on corroboration and in allowing the jury to consider such
evidence.
I. FACTS
Dr. Joseph John Raviotta provided prenatal care to Cynthia
Y. Bell in the summer and fall of 1997. On November 9, 1997,
Ms. Bell, then 30 weeks pregnant, arrived at the emergency room
of Community Memorial Healthcenter (the Hospital) complaining
of gastrointestinal upset, vomiting, and abdominal cramping.
The emergency room physician diagnosed her condition as a
urinary tract infection and referred her to Dr. Raviotta for
further care.
The next day, November 10, Ms. Bell went to Dr. Raviotta's
office. The office records reflect that the staff and Dr.
Raviotta documented a weight gain of four and one-half pounds
over two weeks, totaling a seven and one-half pound gain in
less than a month, a three plus proteinuria (protein in the
blood) reading, a systolic blood pressure of 146, and a
diastolic pressure of 80. Dr. Raviotta concluded that Ms. Bell
had a urinary tract infection, prescribed antibiotics, and
instructed her to return to his office in two weeks.
On the morning of November 15, Ms. Bell returned to the
Hospital and was diagnosed with preeclampsia and preterm labor.
Preeclampsia is a disorder experienced in approximately seven
to ten percent of pregnancies during the third trimester. It
involves a constriction of the blood vessels called "vasospasm"
that produces unusually high blood pressure and is potentially
harmful to the kidneys, liver, and the brain. Preeclampsia is
treated by delivery of the baby, after which the risks of
preeclampsia recede in most patients.
Dr. Raviotta performed a Cesarean section and delivered
Ms. Bell's child at 1:41 p.m. Ms. Bell was transferred from
the Post Anesthesia Care Unit to her hospital room at 4:00 p.m.
Dr. Raviotta ordered that her post-delivery care include a
Magnesium Sulfate protocol, a treatment which prevents the
seizures caused by severe preeclampsia. That protocol required
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administering magnesium sulfate, monitoring the patient's blood
pressure, pulse, and respiration every thirty minutes, and
monitoring fluid intake and output every hour. Dr. Raviotta
instructed that if the urine output fell below 30 cc per hour,
he was to be notified immediately, as low urine output
indicates that the preeclampsia is impeding normal organ
function.
Jean Lynette Fuller, a staff nurse at the Hospital, was
assigned to provide nursing care to Ms. Bell. Nurse Fuller's
duties included following the Magnesium Sulfate protocol
prescribed by Dr. Raviotta; however, Ms. Bell's chart contained
no record, made by Nurse Fuller or anyone else, of any of her
vital signs from the time she returned to her room at 4:00 p.m.
until 6:00 p.m.
Shortly after 6:00 p.m., Shaun Bell, Ms. Bell's sister,
called Nurse Fuller to Ms. Bell's room. Ms. Bell was
unresponsive to verbal and tactile stimuli, her eyes were open,
pupils dilated, and her blood pressure had fallen. Nurse
Fuller called Dr. Raviotta, informed him of Ms. Bell's
condition, and, in response to his questions, told him that Ms.
Bell's urine output was "fine." Dr. Raviotta came to the
Hospital and after checking on Ms. Bell, ordered that she be
given blood transfusions. The transfusions began at 8:00 p.m.
At 11:20 p.m., Ms. Bell suffered seizure activity and went into
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cardiopulmonary arrest. Ms. Bell was resuscitated, but she
never regained consciousness. Ms. Bell died on December 6,
1997. Although the expert witnesses did not agree on the exact
cause of Ms. Bell's death, they did agree that Ms. Bell's
preeclampsia was a significant factor in her death.
In his motion for judgment, Johnson asserted that Dr.
Raviotta was negligent in failing to properly diagnose and
treat Ms. Bell for preeclampsia on November 10 and in failing
to appropriately monitor her condition on November 15. He also
alleged that the Hospital was negligent because its employee,
Nurse Fuller, failed to monitor Ms. Bell's vital signs and
urine output as ordered by Dr. Raviotta on November 15. These
instances of negligence, Johnson alleged, were direct and
proximate causes of Ms. Bell's death. Following a three-day
trial, the jury returned a verdict in favor of the defendants
and the trial judge entered judgment on that verdict. We
awarded Johnson an appeal.
II. ARGUMENT
Johnson's nine assignments of error relate to the
application of Code § 8.01-397, often referred to as the "dead
man's statute," to three items of evidence: (1) Dr. Raviotta's
testimony that he checked Ms. Bell's blood pressure at the
beginning and the end of her November 10 visit to his office;
(2) Dr. Raviotta's testimony that he checked on Ms. Bell's
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condition between 6:30 p.m. and 7:00 p.m. on November 15; and
(3) Nurse Fuller's testimony that she monitored Ms. Bell's
vital signs and urine output between 4:00 p.m. and 6:00 p.m. on
November 15.
Code § 8.01-397 provides that, in an action by an executor
or administrator on behalf of a person who is not able to
testify, "no judgment or decree shall be rendered in favor of
an adverse or interested party founded on his uncorroborated
testimony." Thus, testimony is subject to the corroboration
requirement if it is offered by an adverse or interested party
and if it presents an essential element that, if not
corroborated, would be fatal to the adverse party's case. Rice
v. Charles, 260 Va. 157, 165-66, 532 S.E.2d 318, 322-23 (2000);
Hereford v. Paytes, 226 Va. 604, 608, 311 S.E.2d 790, 792
(1984). If corroboration is required, such corroboration must
be supplied by evidence which tends in some degree to
independently support the element essential to the adverse or
interested party's case, but the testimony need not be
corroborated on all material points. Rice, 260 Va. at 165-66,
532 S.E.2d at 323; Brooks v. Worthington, 206 Va. 352, 357, 143
S.E.2d 841, 845 (1965). Corroborating evidence may be
circumstantial evidence or come from another witness. Id.
Johnson asserts that the contested testimony was subject
to the corroboration requirements of Code § 8.01-397, and, as a
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matter of law, no such corroboration existed. Therefore,
according to Johnson, the trial court erred in allowing the
jury to consider this evidence and whether it was corroborated.
A. Procedural Issues
The Hospital and Dr. Raviotta initially assert that Rule
5:25 precludes our consideration of Johnson's challenges to Dr.
Raviotta's and Nurse Fuller's testimony regarding Ms. Bell's
treatment on November 15. Johnson did not object to this
testimony when it was offered, but raised his objection during
the discussion of jury instructions and during his motion to
set aside the verdict. Therefore, the Hospital and Dr.
Raviotta argue that these objections were not timely made and
consequently were not preserved for appeal under Rule 5:25.
The purpose of Rule 5:25 is to ensure that the trial court
has an opportunity to rule intelligently on a party's
objections and avoid unnecessary mistrials or reversals.
Morgen Indus., Inc. v. Vaughan, 252 Va. 60, 67, 471 S.E.2d 489,
493 (1996). Generally, to satisfy the requirements of the
rule, an objection must be made contemporaneously with the
introduction of the objectionable evidence or at a point in the
proceeding when the trial court is in a position, not only to
consider the asserted error, but also to rectify the effect of
the asserted error. Reid v. Baumgardner, 217 Va. 769, 773-74,
232 S.E.2d 778, 781 (1977).
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The sufficiency of corroborative evidence under Code
§ 8.01-397 is usually a question for the jury. Brooks, 206 Va.
at 357, 143 S.E.2d at 845; Taylor v. Mobil Corp., 248 Va. 101,
110, 444 S.E.2d 705, 710 (1994). The question for the trial
court is whether, given the entire trial testimony, there is
more than a scintilla of corroborative evidence upon which the
jury may determine sufficiency. Id. This question may be
unanswerable until the close of evidence because only at that
point can all evidence be surveyed to determine if sufficient
corroboration exists. Johnson argued that the jury should not
be allowed to consider the testimony at issue because it was
uncorroborated as a matter of law. The record shows that the
trial court was aware of Johnson's objection before the matter
was submitted to the jury and, had it agreed with Johnson, the
trial court could have provided the appropriate instruction to
the jury regarding the testimony in issue. Therefore, we
conclude that Johnson did not waive these assignments of error
by failing to preserve the issue in the trial court pursuant to
Rule 5:25.
B. Application of Code § 8.01-397
Citing Paul v. Gomez, 118 F. Supp. 2d 694 (W.D. Va. 2000),
Dr. Raviotta and the Hospital assert that the corroboration
requirement of Code § 8.01-397 is not applicable to the
testimony Johnson challenges regarding Ms. Bell's care on
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November 15. In Paul, the Federal District Court concluded
that Virginia's dead man's statute does not require
corroboration of a party's testimony regarding certain facts if
another interested party testified to a version of the facts on
behalf of the decedent. 118 F. Supp. 2d at 696.
In this case, Shaun Bell testified that she was in her
sister's room prior to the time she summoned Nurse Fuller at
6:00 p.m., but that she had not seen a nurse take any of Ms.
Bell's vital signs prior to that time. Johnson testified that
he reached the hospital sometime between 6:30 p.m. and 7:00
p.m. and that he did not see Dr. Raviotta during that time.
This testimony presented the version of the facts on behalf of
Ms. Bell, and therefore, the argument goes, the testimony of
Dr. Raviotta and Nurse Fuller regarding their care of Ms. Bell
during these time periods was not subject to the corroboration
requirement of Code § 8.01-397.
The Federal District Court in Paul relied on Epes' Adm'r
v. Hardaway, 135 Va. 80, 115 S.E. 712 (1923), which held that
the corroboration requirement of the dead man's statute applied
"only to that class of witnesses who were made competent for
the first time by the Code of 1919, and that, no corroboration
is required of those witnesses who were competent before the
Code of 1919 became operative, and who did not then require
corroboration." 135 Va. at 92-93, 115 S.E. at 716. As
8
discussed in Epes' Adm'r, prior to 1919, a party could testify
without corroboration even though an adverse party was unable
to testify, if another person, who had an interest derived from
the person unable to testify, testified on behalf of himself or
the person unable to testify. Id. at 86, 115 S.E. at 714. An
interested party is "one, not a party to the record, who is
pecuniarily interested in the result of the suit." Merchants
Supply Co., Inc. v. Ex'rs of the Estate of John Hughes, 139 Va.
212, 216, 123 S.E. 355, 356 (1924).
While the principle relied upon by the Hospital and Dr.
Raviotta accurately states Virginia law, Johnson asserts that
the disputed testimony remains subject to the corroboration
requirement of Code § 8.01-397 because neither he nor Shaun
Bell are interested parties under the statute. Relying on
Coalter's Ex'r v. Bryan, 42 Va. (1 Gratt.) 18 (1844), Johnson
asserts that he is not an interested party because his status
as an administrator "is not a pecuniary interest." However,
the holding in Coalter's Ex'r that the executor had no
pecuniary interest was not a rule of general applicability, but
a determination made on a specific factual basis.
At the time Coalter's Ex'r was decided, any person with a
pecuniary interest in a case was deemed incompetent to testify
in that case. Id. at 86-7. The Court in Coalter's Ex'r
recited that typically an executor is "identified with [an
9
estate's] interests, and bound to assert and defend them,"
thereby vesting the executor with a pecuniary interest in cases
involving the estate. Id. at 87. However, because Coalter's
Ex'r involved a dispute between two classes of persons, each
claiming an interest in the estate, the Court determined that
the executor did not have a pecuniary interest in the
litigation:
The estate which [the executor] represents is in
nowise interested in such a contest. Nor has he
himself any personal interest in it. The
question is, not for what or for how much, but to
whom he shall account, and that in a pecuniary
point of view must be to him a matter of perfect
indifference.
Id. In this case, Johnson is the legal representative of Ms.
Bell's estate and, as such, bound to assert the interests of
the estate. Unlike the executor in Coalter's Ex'r, Johnson,
as administrator, has a direct pecuniary interest in the
outcome of this litigation and, therefore, is an interested
party for purposes of the statute. Accordingly, the
corroboration requirement of Code § 8.01-397 does not apply to
Dr. Raviotta's testimony that he visited Ms. Bell's room
between 6:30 p.m. and 7:00 p.m. on the evening of November 15.
Shaun Bell, however, is not an interested party for
purposes of Code § 8.01-397. Shaun Bell does not have a
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pecuniary interest in this suit 1 and we have never held that
blood relationship alone makes a witness an "interested party"
under the statute. Therefore, Nurse Fuller's testimony
regarding the care she provided Ms. Bell between 4:00 p.m. and
6:00 p.m. on November 15 is subject to the corroboration
requirement.
We now consider Johnson's challenges to the testimony in
issue.
Dr. Raviotta's Testimony
Johnson's expert witness, Dr. Michael A. Ross, testified
that elevated blood pressure is a sign of preeclampsia. He
opined that Ms. Bell's elevated blood pressure at the November
10 appointment, along with her excess weight gain and high
blood protein count, should have alerted Dr. Raviotta to the
possibility that Ms. Bell was suffering from preeclampsia
rather than simply a urinary tract infection. Dr. Ross
concluded that the failure to consider the data supporting a
diagnosis of preeclampsia and treatment of only the urinary
infection was a breach of the standard of care.
Dr. Raviotta testified that he took a second blood
pressure reading at the end of the Ms. Bell's November 10, 1997
appointment, which showed that her blood pressure had returned
1
Ms. Bell's surviving son is her sole statutory
beneficiary under Code § 8.01-53.
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to normal. Johnson correctly asserts that the dead man's
statute applies to this testimony because it was given by an
adverse party and involved an essential element of Dr.
Raviotta's claim that the care he provided to Ms. Bell on
November 10 did not breach the standard of care.
There is no documentation of Dr. Raviotta's second blood
pressure reading for Ms. Bell on November 10, and no other
person testified that a second procedure was performed. Dr.
Raviotta asserts that his testimony about the second blood
pressure measurement was corroborated by his own testimony that
when he had a patient with an elevated blood pressure, he
"always recheck[ed] the blood pressure at the end of the
visit."
Corroboration for purposes of the dead man's statute
cannot come "from the mouth of the witness sought to be
corroborated." Varner's Ex'rs. v. White, 149 Va. 177, 185, 140
S.E. 128, 130 (1927); see also, Ratliff v. Jewell, 153 Va. 315,
326, 149 S.E. 409, 412 (1929). However, Dr. Raviotta asserts
that when the corroborating evidence is evidence of a habit or
routine practice, Code § 8.01-397.1 eliminates the
corroboration requirement of the dead man's statute. We
disagree.
Code § 8.01-397.1 provides in relevant part:
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A. Admissibility. Evidence of the habit of a
person or of the routine practice of an
organization, whether corroborated or not and
regardless of the presence of eye witnesses, is
relevant to prove that the conduct of the person or
organization on a particular occasion was in
conformity with the habit or routine practice.
This section does no more than establish that evidence
showing a certain pattern of conduct is relevant evidence and,
therefore, a court cannot refuse to admit such evidence on the
ground that it is collateral, irrelevant evidence. Cf. Ligon
v. Southside Cardiology Assocs., 258 Va. 306, 319, 519 S.E.2d
361, 368 (1999) (testimony by doctors of their normal routines
inadmissible as irrelevant to show conduct on specific
occasion). The phrase "whether corroborated or not" dispensed
with any perceived need for corroboration of habit evidence as
a condition of admissibility. Nothing in Code § 8.01-397.1,
however, suggests that corroboration is not required when
otherwise admissible habit evidence is sought to be admitted
under circumstances that bring such evidence within the ambit
of the dead man's statute.
The issue before us is whether the habit evidence in this
case, consisting only of Dr. Raviotta's testimony, can
corroborate other testimony from Dr. Raviotta that is subject
to the dead man's statute. That conclusion is not affected by
Code § 8.01-397.1. Accordingly, because Dr. Raviotta's
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testimony was not corroborated, we conclude that the trial
court erred in allowing the jury to consider this evidence.
Nurse Fuller's Testimony
Johnson asserts that there was no corroboration of Nurse
Fuller's testimony that she monitored Ms. Bell's vital signs
and urine output between 4:00 p.m. and 6:00 p.m. According to
Johnson, this testimony was an essential element of the
Hospital's defense because, as the Hospital's expert testified,
the failure to monitor Ms. Bell's vital signs as directed by
Dr. Raviotta, would have deprived the medical staff of
information that would have assisted in making a timely
diagnosis of Ms. Bell's hypovolemic shock and would have
violated the standard of care. Johnson asserts that Nurse
Fuller is an interested party for purposes of the statute
because, had liability been imposed on the Hospital due to
Nurse Fuller's negligence, the Hospital would have been
entitled to indemnification from Nurse Fuller. Miller v.
Quarles, 242 Va. 343, 347, 410 S.E.2d 639, 642 (1991).
The Hospital does not dispute Nurse Fuller's status as an
interested party for purposes of the dead man's statute, but
argues that her testimony was admissible because it was
corroborated. For the reasons that follow, we reject this
argument.
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The Hospital maintains that Nurse Fuller's testimony was
corroborated by documentary evidence and by the testimony of
Dr. Raviotta and Nurse Virginia Carter Frost. The documentary
evidence the Hospital relies upon are two patient care charts
which indicate that Nurse Fuller administered three "units of
care" to Ms. Bell between 4:00 p.m. and 4:59 p.m., four "units
of care" between 5:00 p.m. and 5:59 p.m., and changed Ms.
Bell's IV fluids at 5:00 p.m. Nurse Frost testified that a
"unit of care" is treatment initiated by a nurse independent of
any physician's orders and that, in order to initiate such
units of care, the nurse must assess the patient's condition to
determine the appropriate unit of care. The Hospital argues
that this testimony and documentary evidence of Nurse Fuller's
visits to Ms. Bell confirm Nurse Fuller's testimony that she
assessed and monitored Ms. Bell's condition between 4:00 p.m.
and 6:00 p.m.
This evidence does show that Nurse Fuller had contact with
Ms. Bell and provided care to her during the time period in
question, but does not corroborate the specific testimony in
issue – that she performed the monitoring required by the
Magnesium Sulfate protocol ordered by Dr. Raviotta. Although
Nurse Frost testified that the Hospital practice is to chart
vital signs when taken whether such signs are normal or not,
the charts in evidence do not contain such notations. None of
15
the units of care recorded by Nurse Fuller recited a vital
sign. Nurse Frost's testimony that Nurse Fuller had to
"assess" the patient's condition to initiate units of care does
not indicate that such assessment included taking vital signs
or measuring urine output as specified by the Magnesium Sulfate
protocol ordered by Dr. Raviotta.
The Hospital also relies on Dr. Raviotta's testimony, that
he understood from his conversations with Nurse Fuller that she
was monitoring Ms. Bell's condition and that Nurse Fuller's
observation of the changes in Ms. Bell's condition led her to
contact him around 6:00 p.m., as corroboration of Nurse
Fuller's testimony. This testimony, however, does not
corroborate Nurse Fuller's testimony. 2 His statement that he
understood she was monitoring Ms. Bell's vital signs contains
no information upon which such an assumption was based. Thus,
2
Johnson asserts that Dr. Raviotta's testimony cannot
corroborate Nurse Fuller's testimony because the testimony of
one adverse witness cannot corroborate the testimony of another
adverse or interested party. Ratliff, 153 Va. at 326, 149 S.E.
at 412. However, that rule only applies when the corroborating
witness has a pecuniary interest in common with the person
whose testimony needs corroboration in the judgment or decree
sought to be entered based on that testimony. Arwood v. Hill's
Adm'r, 135 Va. 235, 242-43, 117 S.E. 603, 606 (1923); Ratliff,
153 Va. at 325-26, 149 S.E. at 412. Johnson asserted that Dr.
Raviotta and the Hospital were jointly and severally liable for
damages resulting in Ms. Bell's death. Testimony by Dr.
Raviotta that formed the basis for a judgment in the Hospital's
favor would be testimony against his pecuniary interest because
it would leave him with the sole liability for Ms. Bell's
16
it provides no independent support for the assertion made by
Nurse Fuller that she checked Ms. Bell's vital signs during the
time period in question and cannot be corroborative.
Accordingly, we conclude that the trial court erred in allowing
the jury to consider Nurse Fuller's testimony that she
monitored Ms. Bell's condition between 4:00 p.m. and 6:00 p.m.
on November 15.
C. Harmless Error
Both Dr. Raviotta and the Hospital urge that submission of
the testimony at issue to the jury and instructing the jury on
the issue of corroboration were harmless error.
Dr. Raviotta asserts that any error in the submission of
his testimony that he rechecked Ms. Bell's blood pressure
during her November 10 appointment was harmless because none of
the experts limited their testimony to the second blood
pressure reading when concluding that Dr. Raviotta did or did
not breach the standard of care. Thus, he contends that, even
without the tainted evidence, there was sufficient evidence in
the record to support the jury verdict in his favor.
Similarly, the Hospital argues that Nurse Fuller's
testimony was not essential to a finding that the Hospital was
liable because her testimony related solely to the issue of
damages. Therefore, Dr. Raviotta would not be an "interested"
party for the purpose of corroborating Nurse Fuller.
17
negligence and did not relate to the issue of causation. The
Hospital asserts that the record supports a verdict in favor of
the Hospital on the issue of causation "separate and apart"
from Nurse Fuller's testimony.
Both these arguments overlook the principle recently
reiterated by this Court in Tashman v. Gibbs, 263 Va. 65, 76,
556 S.E.2d 772, 779 (2002), that where evidence and an
instruction have erroneously been submitted to the jury and the
record does not reflect whether such evidence and instruction
formed the basis of the jury's verdict, we must presume that
the jury relied on such evidence and instruction in making its
decision. See also, Ponirakis v. Choi, 262 Va. 119, 126, 546
S.E.2d 707, 711-12 (2001); Rosen v. Greifenberger, 257 Va. 373,
381, 513 S.E.2d 861, 865 (1999); Clohessy v. Weiler, 250 Va.
249, 254, 462 S.E.2d 94, 97 (1995). Consequently, we must
reverse and remand the matter for a new trial
III. CONCLUSION
In summary, for the reasons stated, we conclude that
Johnson's assignments of error are not precluded by Rule 5:25,
that Shaun Bell is not an interested party for the purpose of
Code § 8.01-397, that the corroboration requirements of Code
§ 8.01-397 are not abrogated by Code § 8.01-397.1, that Code
§ 8.01-397 applied to the testimony of Dr. Raviotta regarding
the November 10 office visit and of Nurse Fuller regarding care
18
given Ms. Bell on November 15, that such testimony, as a matter
of law, was not corroborated as required by that statute, that
the trial court erred in submitting that testimony and the
issue of corroboration of such testimony to the jury, and that
such error was not harmless. Accordingly, we will reverse the
judgment of the trial court and remand the case for further
proceedings consistent with this opinion.
Reversed and remanded.
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