Diehl v. Butts

Present: All the Justices

IRENE M. DIEHL, ADMINISTRATRIX OF THE
ESTATE OF FRANCIS JOSEPH DUNLAP, SR., DECEASED

OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 971090 April 17, 1998

EDWARD B. BUTTS, M.D.

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge

I.

The primary issue that we consider in this appeal of a

judgment entered in a medical malpractice action is whether

Code § 8.01-397, commonly referred to as the dead man’s

statute, barred the admission of the defendant’s testimony.

II.

Susan Gale Knight Dunlap filed this action as the wife

and guardian for Francis Joseph Dunlap, Sr., incompetent,

against Dr. Edward B. Butts, alleging that he breached the

standard of care owed to her husband. At a jury trial, the

litigants adduced the following evidence which is relevant to

our disposition of this appeal.

Mr. Dunlap fell from his bicycle and injured his head on

September 6, 1992. The next day, he awoke with a headache, so

he decided to obtain a medical examination to make sure that

he did not have a concussion. Mr. Dunlap went to a clinic

where he was examined by Dr. Stephen Menefee. Mr. Dunlap
received a form, which the litigants described as a “head

sheet,” that enumerated certain symptoms and warnings

associated with severe head injury, and he was instructed to

contact a physician in the event he experienced any of these

symptoms. Dr. Menefee informed Mr. Dunlap that he had high

blood pressure and advised him to seek treatment from his

family physician.

Mr. Dunlap, who was still experiencing headaches, was

evaluated by his family physician, Dr. Clarence A. Holland, on

September 9, 1992. Dr. Holland told Mr. Dunlap to continue to

monitor himself for the symptoms and warning signs enumerated

on the “head sheet.”

Mr. Dunlap continued to experience headaches, so he went

to see Dr. Holland again on September 11, 1992. Dr. Holland

noted in his medical records that Mr. Dunlap had complained of

nausea and dizziness, and Dr. Holland ordered a computerized

tomography (CT) scan of Mr. Dunlap’s head. Dr. Holland

instructed Mr. Dunlap to go to a hospital where the CT scan

would be performed and referred him to Dr. Butts, a

neurosurgeon, who met Mr. Dunlap at the hospital.

After the CT scan was performed, Dr. Butts, Mr. Dunlap,

and Mrs. Dunlap had a conversation in a waiting room. Dr.

Butts informed Mr. and Mrs. Dunlap that there was “a little

bit of blood on the right side of [Mr. Dunlap’s] brain but

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that it would dissolve by itself.” Dr. Butts instructed the

Dunlaps to watch for the symptoms that were enumerated on the

“head sheet,” such as dizziness and nausea, and if any of

these symptoms occurred, they should contact him.

Dr. Andrej M. Ciric, a radiologist who later interpreted

the CT scan and wrote a report of his findings, noted that a

subdural hematoma was present on the right side of Mr.

Dunlap’s head and that he had suffered a cranial skeletal

fracture. A subdural hematoma, commonly described as a blood

clot, occurs when blood collects between the covering and

surface of the brain. The accumulation of blood is caused by

a tear of one of the veins on the surface of the brain. Mr.

Dunlap’s subdural hematoma, which measured approximately 12

centimeters in length and one centimeter in thickness, was

compressing his brain. According to the plaintiff’s evidence,

Dr. Butts failed to inform Mr. Dunlap about the size of his

subdural hematoma or his depressed skull fracture.

On September 12 and 13, 1992, Mr. Dunlap’s nausea had

stopped, but he continued to experience headaches. Mr.

Dunlap, who was employed as a marine engineer and had been

working as a consultant for a project in New Orleans,

Louisiana, had originally intended to leave his home in

Virginia and return to New Orleans by September 9, 1992.

However, he had postponed his planned departure date because

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of his injuries. According to the plaintiff’s evidence, Mr.

Dunlap did not intend to return to New Orleans until he had

obtained permission from Dr. Butts to do so.

Dr. Butts treated Mr. Dunlap in an examination room on

September 14, 1992. No one was present during this

examination other than Dr. Butts and Mr. Dunlap. Dr. Butts

was permitted to testify, over the plaintiff’s objections,

about his conversation with Mr. Dunlap when they were alone.

Dr. Butts testified that he reviewed certain “warning signs”

or symptoms which Mr. Dunlap should monitor and that these

symptoms included nausea, dizziness, and slurring of speech.

Dr. Butts said that he instructed Mr. Dunlap not to return to

work in New Orleans and to come back for another evaluation in

“a week-and-a-half.”

Mrs. Dunlap, who had accompanied her husband to Dr.

Butts’ office on September 14, was in a waiting room during

her husband’s examination. According to Mrs. Dunlap, after

Dr. Butts had examined her husband, Mr. Dunlap informed her

that Dr. Butts told Mr. Dunlap that he could return to New

Orleans. Mr. Dunlap informed his wife that Dr. Butts told Mr.

Dunlap “to keep an eye out for such things as nauseousness,

dizziness, and slurring, anything to that effect, and to come

back and see him in two or three months.”

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 Mr. Dunlap arrived in New Orleans on September 17, 1992,

and he had a telephone conversation with his wife who was in

Virginia. He informed her that he continued to experience

headaches and that he did not feel well. On September 18,

1992, while at work, Mr. Dunlap informed a colleague that he

had a “leaking blood vessel that gave him a spot [of blood] on

his head,” but that his doctor had given him permission to

return to New Orleans. On September 20, 1992, after speaking

with his wife by telephone, Mr. Dunlap decided to return to

Virginia where he could be evaluated by Dr. Butts.

Mrs. Dunlap met her husband at the airport upon his

return from New Orleans, and she called Dr. Holland from the

airport to describe her husband’s condition, which had

deteriorated. Dr. Holland stated that Mr. Dunlap could

exercise one of the following options: visit an emergency

room; come to Dr. Holland’s office in the morning where

Holland would make arrangements for him to see Dr. Butts; or

take medication Dr. Holland would prescribe. Dr. Holland

informed the Dunlaps that it would be safe for Mr. Dunlap to

wait until the next day before receiving medical treatment

provided he did not have any other symptoms such as weakness

on one side of his body, visual problems, or vomiting.

Mr. Dunlap decided to obtain the medication from a

pharmacy, go home, and visit Dr. Holland the following

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morning. After he returned to his home, Mr. Dunlap took the

medication and went directly to bed. The next morning, Mrs.

Dunlap was unable to awaken him. She immediately called

emergency response personnel, and Mr. Dunlap was taken to a

hospital where he was diagnosed with cerebral herniation

secondary to subacute subdural hematoma. Mr. Dunlap’s blood

clot had bled, expanded massively, and compressed his brain.

Mrs. Dunlap was informed that Mr. Dunlap had less than a five

percent chance of survival of an operation to relieve the

pressure on his brain. After the operation, Mr. Dunlap

remained in a coma for about two months and was ultimately

placed in a health care facility for two years.

The plaintiff adduced expert testimony at trial that Dr.

Butts breached the applicable standard of care owed to Mr.

Dunlap and that this breach of the standard of care was a

proximate cause of Mr. Dunlap’s injuries. Dr. Butts presented

expert testimony that he complied with the applicable standard

of care owed to Mr. Dunlap. Some of Dr. Butts’ expert

witnesses’ opinions, however, were predicated upon Dr. Butts’

testimony that when he was alone with Mr. Dunlap, Dr. Butts

gave certain oral instructions to Mr. Dunlap and that he

warned Mr. Dunlap not to return to New Orleans.

At the conclusion of a lengthy trial, the jury returned

the following verdict: “We, the jury, find in favor of the

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plaintiff and fix damages at: $0. ZERO DOLLARS.” The trial

court entered a judgment confirming the verdict, and the

plaintiff appeals. 1

III.

A.

Code § 8.01-397 states in part:

“In an action by or against a person who, from
any cause, is incapable of testifying, or by or
against the committee, trustee, executor,
administrator, heir, or other representative of the
person so incapable of testifying, no judgment or
decree shall be rendered in favor of an adverse or
interested party founded on his uncorroborated
testimony.”

The plaintiff, relying upon this statute, argues that the

trial court erred by holding, as a matter of law, that Dr.

Butts’ testimony, about his conversations with Mr. Dunlap when

no one else was present, was corroborated. Continuing, the

plaintiff argues that because of the existence of the

physician/patient relationship, Dr. Butts was required to

present evidence of a higher degree of corroboration than is

required in most cases.

Initially, Dr. Butts argues that Code § 8.01-397 is not

applicable in this proceeding because the jury ultimately

returned a verdict in favor of the plaintiff and, thus, no

1
Mr. Dunlap died after the final judgment order was
entered, and Irene M. Diehl, administrator of his estate, was
substituted as the plaintiff.

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judgment was “rendered in favor of an adverse or interested

party.” Dr. Butts’ argument is without merit because, under

his analysis, a trial court would be required to wait until

after the jury rendered a verdict before determining whether a

party’s testimony must be corroborated. Certainly, Code

§ 8.01-397 does not mandate this illogical procedure.

B.

We find no merit in Dr. Butts’ contention that “[t]he

Dead Man’s Statute was designed as a ‘shield’ to protect the

decedent or incompetent party from fraudulent claims which

that party, due to his incapacity, could not refute; it should

therefore not be used as a ‘sword’ to silence the defense of

an otherwise competent party.” Code § 8.01-397 is designed to

prevent a litigant from having the benefit of his own

testimony when, because of death or incapacity, the personal

representative of another litigant has been deprived of the

testimony of the decedent or incapacitated person. The

statute substitutes a requirement that testimony be

corroborated in place of the harsher common law rule which

disqualified the surviving witness for interest. Vaughan v.

Shank, 248 Va. 224, 229, 445 S.E.2d 127, 130 (1994); Hereford

v. Paytes, 226 Va. 604, 608, 311 S.E.2d 790, 792 (1984). 2

2
We find no merit in Dr. Butts’ summary argument that
Code § 8.01-397 violates traditional notions of due process or

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 C.

Dr. Butts argues that even if Code § 8.01-397 is

applicable here, any error that the trial court committed is

harmless and that his testimony was corroborated as a matter

of law. We disagree.

We observed in Whitmer v. Marcum, 214 Va. 64, 67, 196

S.E.2d 907, 909 (1973), that corroborating evidence “is such

evidence as tends to confirm and strengthen the testimony of

the witness sought to be corroborated — that is, such as tends

to show the truth, or the probability of its truth.”

Additionally, in Vaughan, 248 Va. at 229, 445 S.E.2d at 130,

we stated the following principles which are equally pertinent

here:

“To be deemed sufficient under Code § 8.01-397,
the corroboration ‘must at least tend, “in some
degree, of its own strength and independently, to
support some essential allegation or issue raised by
the pleadings [and] testified to by the [surviving]
witness . . . which allegation or issue, if
unsupported, would be fatal to the case.”’
Hereford, 226 Va. at 608, 311 S.E.2d at 792
(alteration in original) (citation omitted). The
corroborating evidence need not be provided by
witnesses, but may be furnished by surrounding
circumstances adequately established. Penn v.
Manns, 221 Va. 88, 93, 267 S.E.2d 126, 130 (1980).

“There is no hard and fast rule that determines
whether the requirement of corroboration has been
met, and each case must be decided upon its own

contravenes the Fourteenth Amendment to the Constitution of
the United States and art. I, § 11 of the Constitution of the
Commonwealth of Virginia.

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 facts and circumstances. Id. In a case involving
parties between whom a confidential relationship
existed at the time of the transaction relied on, a
higher degree of corroboration may be required than
in other transactions. Everton v. Askew, 199 Va.
778, 782, 102 S.E.2d 156, 158 (1958).”

Without question, the patient and physician relationship

that existed between Mr. Dunlap and Dr. Butts was a

confidential relationship. See James v. Jane, 221 Va. 43, 50,

282 S.E.2d 864, 867 (1980); Limbaugh v. Commonwealth, 149 Va.

383, 396, 140 S.E. 133, 136 (1927). Thus, when, as here, a

confidential relationship existed between the parties at the

time of the transaction which gave rise to the cause of

action, a higher degree of corroboration is necessary to

satisfy the requirements of Code § 8.01-397. For example, we

held in Nicholson v. Shockey, 192 Va. 270, 283, 64 S.E.2d 813,

821 (1951), that an attorney/client relationship existed

between a son (the attorney) and his mother (the client) and

that Code § 8-286, the precursor to Code § 8.01-397, required

that the son show a higher degree of corroboration because of

the confidential relationship in existence at the time of the

challenged transaction. Accord Vaughan, 248 Va. at 229, 445

S.E.2d at 130; Seaboard Citizens Nat’l Bank of Norfolk v.

Revere, 209 Va. 684, 690, 166 S.E.2d 258, 263 (1969); Everton

v. Askew, 199 Va. 778, 782, 102 S.E.2d 156, 158 (1958); Clay

v. Clay, 196 Va. 997, 1002, 86 S.E.2d 812, 815 (1955).

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 As we have already stated, Dr. Butts was permitted to

testify that when he and Mr. Dunlap were alone, Dr. Butts told

Mr. Dunlap not to travel to New Orleans, but to go home and

return to Dr. Butts’ office for a further evaluation in “a

week-and-a-half.” Dr. Butts also testified that he told Mr.

Dunlap to remain at home because “[I]f he goes out of town,

he’s putting himself at an extra risk.” Dr. Butts’ purported

corroboration of these statements consisted of the testimony

of Mr. Dunlap’s former neighbor and Mr. Dunlap’s brother. The

former neighbor testified that Mr. Dunlap “made a statement”

that a doctor told him not to go to work for “a couple of

weeks or whatever . . . it could have been a couple days.”

Mr. Dunlap’s brother testified that Mrs. Dunlap said that a

doctor had told her husband not to return to work. This

evidence, along with other evidence of record, is simply not

sufficient to provide the higher degree of corroboration

required by Code § 8.01-397 and our precedent.

IV.

The plaintiff argues that the trial court erred by

submitting the following jury instruction to the jury:

“Contributory negligence is the failure to act
as a reasonable person would have acted for his own
safety under the circumstances of this case. A
patient is contributorily [sic] negligent when he
neglects his health following his physician’s
treatment, even if that physician’s treatment was

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 negligent, and the patient may not recover for any
damages resulting from his own neglect.

“If you believe by a preponderance of the
evidence that Frank Dunlap was contributorily [sic]
negligent, then you may only consider this in
determining the amount of damages, if any.”

Dr. Butts, relying upon Lawrence v. Wirth, 226 Va. 408,

309 S.E.2d 315 (1983), asserts the trial court correctly

granted this jury instruction and that a plaintiff’s acts of

contributory negligence can be used to decrease the amount of

the plaintiff’s damages.

We hold that the trial court erred in granting this jury

instruction. First, the jury instruction contains an

erroneous and confusing statement of law because the

instruction implies that the tort concepts of contributory

negligence and mitigation of damages are identical concepts

when, in fact, they are separate and distinct tort principles.

Furthermore, the rule that we articulated in Lawrence has no

application here because the admissible evidence of record

simply did not permit a jury to find that Mr. Dunlap neglected

his health after Dr. Butts’ alleged negligent treatment.

V.

In view of our holdings, we need not consider Dr. Butts’

remaining arguments. We will reverse the judgment of the

trial court and remand this case for a new trial on all

issues. Upon remand, the trial court shall not admit any

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testimony of Dr. Butts concerning conversations that he had

with Mr. Dunlap unless Dr. Butts corroborates the

conversations to the higher degree required by their

confidential relationship. Nor shall the trial court admit

any opinion testimony of Dr. Butts’ expert witnesses that rely

upon conversations that Dr. Butts had with Mr. Dunlap unless

the conversations have been corroborated to the higher degree

specified above. Upon remand, the trial court shall not

instruct the jury on contributory negligence or mitigation of

damages.

Reversed and remanded.

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