Sawyer v. Comerci

Present: All the Justices

NORMA SAWYER, ADMINISTRATRIX OF THE
ESTATE OF NORMAN LEE PLOGGER, DECEASED
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 011741 June 7, 2002

CATHY COMERCI

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
George E. Honts, III, Judge

In this appeal of a judgment entered in favor of a

physician in a medical negligence action, we consider whether

the circuit court erred in granting a contributory negligence

instruction, whether the evidence was sufficient to support

the granting of a jury instruction on mitigation of damages,

and whether the circuit court erred in limiting the scope of

the plaintiff's cross-examination of the defendant's expert

witness.

I.

Plaintiff, Norma J. Sawyer, administrator of the estate

of Norman Lee Plogger, filed a motion for judgment against

Cathy Comerci, D.O., and Stonewall Jackson Hospital. She

alleged that the defendants breached certain duties owed to

the decedent, Norman Plogger, and that their acts and

omissions were a proximate cause of his death. The defendants

filed grounds of defense and denied any breach of duties owed

to Mr. Plogger.

At the beginning of a jury trial, the plaintiff took a

voluntary nonsuit of her action against the hospital, and the
case proceeded against Dr. Comerci. At the conclusion of the

litigants' presentation of evidence, the jury was instructed,

among other things, that it could consider whether Mr. Plogger

was contributorially negligent. The jury returned a verdict

in favor of Dr. Comerci, and the plaintiff appeals.

II.

On the night of April 2, 1997, Norman Plogger,

accompanied by his wife, Mary Plogger, went to the Stonewall

Jackson Hospital emergency room. Mr. Plogger sought help

because he experienced continuous pain on the right side of

his abdomen.

Dr. Comerci, the emergency room physician "on call" that

night, evaluated Mr. Plogger, ordered certain laboratory

tests, and performed an examination upon him. Mr. Plogger

informed Dr. Comerci that he "just didn't feel well; that he

hadn't felt well for a while." Mr. Plogger had seen his

family physician a few days earlier, and his physician

informed Mr. Plogger that he had a viral illness. Mr. Plogger

also informed an emergency room nurse that he "had right

abdominal soreness." Even though Mr. Plogger had experienced

abdominal pains for several months before he went to Stonewall

Jackson Hospital on April 2, 1997, he had not mentioned this

pain to his physician, Dr. Thomas Hamilton.

Dr. Comerci concluded that Mr. Plogger should be admitted

to the hospital as a patient because he had blood in his stool

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and his white blood count was elevated. The elevation in Mr.

Plogger's white blood count led Dr. Comerci to believe that

either "an inflammatory process or infection" was occurring in

his body.

Dr. Comerci felt that a surgeon should evaluate Mr.

Plogger, and she made a telephone call to Dr. Robert Irons,

the hospital's "on call" surgeon, seeking such evaluation.

Summarizing her conversation with Dr. Irons, Dr. Comerci

stated: "By my calling Dr. Irons, I would be calling him for

an admission. . . . I . . . call[ed] him because I needed him

to see a patient for admission. . . . But my calling him, it

is because I need[ed] [Mr. Plogger] admitted, and I need[ed]

the surgeon to come in and evaluate the patient."

Dr. Comerci informed Dr. Irons that Mr. Plogger "had

blood in his stool" and that he "had a [gastrointestinal]

bleed with an intermittent bowel obstruction probably being

caused by a mass in his colon." Dr. Comerci believed that Mr.

Plogger needed surgical intervention to resolve the bleeding.

Dr. Irons told Dr. Comerci that he did not believe that Mr.

Plogger had "an acute surgical abdomen" and recommended that

Dr. Comerci refer Mr. Plogger to Dr. Hamilton. Dr. Comerci

placed a telephone call to Dr. Hamilton.

When Dr. Comerci was discussing Mr. Plogger's condition

with Dr. Irons, or after she had spoken with Dr. Irons, the

emergency room nurses approached Dr. Comerci and informed her

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that Mr. and Mrs. Plogger were about to leave the hospital

again. The Ploggers had previously considered leaving the

hospital before Dr. Comerci had spoken with Dr. Irons.

Dr. Comerci testified that when Mr. and Mrs. Plogger

began to leave the second time, she asked them to wait. Dr.

Comerci stated: "I went back in, I talked to them and told

them to wait; that I was trying to get ahold of his doctor,

Dr. Hamilton. And I talked with Dr. Hamilton and I told him

that I had a problem, that I had a man that I felt needed to

be admitted, and I told him why, but that the man didn't want

to be admitted; apparently his wife had an appointment the

next day in Roanoke; they wanted to get out of there; he was

already on his way out of the door; Dr. Irons did not want to

come in, and [he did not] want to come in and see this

gentleman. And [Dr. Hamilton] said, I guess if he doesn't

want to stay, I will just see him tomorrow. I said, I don't

think you'll see him tomorrow, they're going to be in Roanoke.

And he said, [f]ine, have him call the office tomorrow and

I'll see him Monday."

Approximately 10:15 that night, Mr. and Mrs. Plogger left

the hospital's emergency room. They had been in the emergency

room since about 7:30 p.m. Dr. Comerci testified that Mrs.

Plogger "had said all along, [Mr. Plogger] can't stay; I have

an appointment in the morning; we have to go to Roanoke."

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 When Mr. Plogger was discharged from the hospital's

emergency room at 10:15 p.m., Dr. Comerci tried to persuade

him to remain. However, he refused to do so. Dr. Comerci

recorded a statement on Mr. Plogger's progress notes after he

had left the emergency room that stated, among other things:

"Patient and especially the patient's wife are difficult to

talk with and despite repeated explanation do not seem to

understand the possibility of the seriousness of his

condition; however, agree to follow up with Dr. Hamilton on

Friday."

Generally, a patient who leaves a hospital against the

advice of the physician is asked to sign a document, described

as an "against medical advice form." Dr. Comerci did not

think that this form was available in the emergency room at

that time. Consequently, Mr. Plogger did not sign this form.

Mr. Plogger returned to the hospital's emergency room

three days later on April 5, 1997 with complaints of a sore

throat. Dr. Comerci evaluated his abdomen, examined his

throat, and diagnosed his throat condition as either oral

candidiasis or oral thrush, conditions unrelated to his

abdominal complaints.

Even though the discharge instructions that Mr. Plogger

received during his emergency room visit on April 2, 1997

directed him to meet with Dr. Hamilton on April 4, Mr. Plogger

did not do so. When Dr. Comerci treated Mr. Plogger at the

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emergency room on April 5, she "reiterated [that] he

absolutely needed to follow up with his doctor on Monday

[April 7] regarding [his] abdomen, and to come back if it was

worse at all." Dr. Comerci "was still concerned" about Mr.

Plogger's abdominal condition. According to Dr. Hamilton, Mr.

Plogger failed to make an appointment to see him on April 4,

1997. Dr. Hamilton stated that "there is no record that [Mr.

Plogger] made an appointment for any of those days after the

2nd of April."

On Monday morning, April 7, Mr. Plogger returned to the

emergency room by ambulance. He was acutely short of breath,

his skin was very pale, his lips were blue, and he was

sweating. He was admitted to the hospital, where he died the

following day.

The plaintiff presented evidence at trial that Dr.

Comerci failed to comply with the applicable standard of care

imposed upon a reasonably prudent emergency room physician

when she treated Mr. Plogger on April 2, 5, and 7, 1997, and

that her acts and omissions were proximate causes of his

death. Dr. Comerci presented expert witness testimony that

she complied with the standard of care and that Mr. Plogger's

death was not caused by any act or omission by her.

III.

The circuit court instructed the jury, over the

plaintiff's objection, that it shall find its

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 "verdict for the defendant Dr. Comerci for the care
she rendered to Mr. Plogger on April 2, 1997 if she
has proved by the greater weight of the evidence
that Mr. Plogger was contributor[ially] negligent
concerning the events that occurred on April 2, 1997
and that this negligence was a proximate cause of
Mr. Plogger's death."

The plaintiff contends that the circuit court erred in giving

this jury instruction because Dr. Comerci failed to present

sufficient evidence from which the jury could conclude that

Mr. Plogger was guilty of contributory negligence. The

alleged act of contributory negligence related to Dr.

Comerci's contention that Mr. Plogger left the emergency room

against her advice.

Responding, Dr. Comerci argues that she presented

sufficient evidence to permit the jury to find that Mr.

Plogger was guilty of contributory negligence because he left

the emergency room even though she told him that he needed to

be admitted. We disagree with Dr. Comerci.

The legal principles relevant to our resolution of this

issue are familiar. Contributory negligence is an affirmative

defense that is based on the objective standard whether a

plaintiff failed to act as a reasonable person would have

acted for his own safety under the circumstances. Ponirakis

v. Choi, 262 Va. 119, 124, 546 S.E.2d 707, 710 (2001); Artrip

v. E.E. Berry Equipment Co., 240 Va. 354, 358, 397 S.E.2d 821,

823-24 (1990).

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 "The essence of contributory negligence is carelessness."

Ponirakis, 262 Va. at 124, 546 S.E.2d at 711; Artrip, 240 Va.

at 358, 397 S.E.2d at 823-24. Whether a plaintiff is guilty

of contributory negligence is generally a question of fact to

be decided by the trier of fact. Ponirakis at 125, 546 S.E.2d

at 711; Artrip, 240 Va. at 358, 397 S.E.2d at 823.

We have consistently held that the defendant has the

burden of proving contributory negligence by the greater

weight of the evidence. Id. This means that "the burden is

upon the defendant to establish by a preponderance of the

evidence such contributory negligence, unless it is disclosed

by the plaintiff's evidence or can be fairly inferred from the

circumstances of the case." Southern Railway v. May, 147 Va.

542, 552, 137 S.E. 493, 496 (1927).

Additionally, in order for contributory negligence to bar

a plaintiff's recovery in a medical negligence action, the

plaintiff's negligence must be concurrent with the defendant's

negligence. Ponirakis, 262 Va. at 125, 546 S.E.2d at 711;

Gravitt v. Ward, 258 Va. 330, 335, 518 S.E.2d 631, 634 (1999);

Eiss v. Lillis, 233 Va. 545, 552, 357 S.E.2d 539, 543 (1987);

Lawrence v. Wirth, 226 Va. 408, 412, 309 S.E.2d 315, 317

(1983). We have stated that "[i]n the medical malpractice

context, this requirement means that the patient's negligent

act must be contemporaneous with the main fact asserted as the

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negligent act of the physician." Ponirakis, 262 Va. at 125,

546 S.E.2d at 711.

And, just as a plaintiff is required to establish a prima

facie case of negligence, a defendant who relies upon the

defense of contributory negligence must establish a prima

facie case of the plaintiff's contributory negligence. Hence,

a defendant who asserts a defense of contributory negligence

is not entitled to a jury instruction on contributory

negligence if that defendant only adduces a mere scintilla of

evidence of the plaintiff's purported contributory negligence.

A defendant who relies upon the defense of contributory

negligence must prove that the plaintiff deviated from a

standard of care and that the deviation was a proximate cause

of damages. Consequently, more than a scintilla of evidence

is necessary to establish each of the elements of contributory

negligence before such instruction may be given to a jury.

We hold that Dr. Comerci was not entitled to a jury

instruction on contributory negligence because she failed to

establish a prima facie case that Mr. Plogger was guilty of

contributory negligence. Even though Dr. Comerci consulted

Dr. Hamilton and requested that he "come in to see" Mr.

Plogger, no physician with admitting privileges told Mr.

Plogger that he should be admitted as a patient to the

hospital on April 2, 1997. Dr. Comerci did not make any

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record in Mr. Plogger's medical chart that he should have been

admitted to the hospital on April 2, 1997.

The record is devoid of any evidence that Mr. Plogger

understood the severity of his condition and the consequences

that might ensue if he were not admitted as a patient to the

hospital. There is no evidence in this record that Dr.

Comerci told Mr. Plogger that he could die if he did not

receive medical treatment. And, even though Dr. Comerci

claims that such evidence is found in the record, we conclude

otherwise. Dr. Comerci relies upon the following question and

answer in support of her contention that such evidence exists

in this record:

"[Question]: And certainly if you had told
[Mr. Plogger] that he was in a life-or-death
situation, I mean, he would have done – the guy came
to the emergency room on a Wednesday night?

"[Dr. Comerci]: No. I would think if the
patient was in – and I had told him he was in a
life-or-death situation and that I wanted him to be
admitted, he would have been admitted. There seems
to be a marked misunderstanding. He just didn't
seem to comprehend, or actually Mr. Plogger seemed
to comprehend, but Mrs. Plogger did not seem to
comprehend."

This testimony does not permit us to hold that a jury

could conclude that Dr. Comerci had explained to Mr. Plogger

that if he chose to leave the hospital without being admitted

as a patient, without resolution of his internal bleeding, he

could die. Rather, this testimony is speculative and

conjectural. We also observe that Dr. Irons, the surgeon whom

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Dr. Comerci consulted, did not believe that Mr. Plogger needed

to be admitted as a patient to the hospital and, therefore, we

do not think that a jury should be permitted to infer that a

layman could be guilty of contributory negligence because he

left the emergency room under the facts and circumstances in

this record.

IV.

The circuit court gave the following instruction to the

jury, over the plaintiff's objection:

"A patient who claims that he has been
negligently treated by a physician has a duty to use
ordinary care to avoid loss or minimize or lessen
the resulting damage.

"If the jury believes that Norman Plogger
failed to use ordinary care to follow the
instructions of Dr. Comerci to make an appointment
with and see his family physician, his estate may
not recover for any portion of the harm which, by
such care, could have been avoided."

The plaintiff contends that there was insufficient evidence to

support this instruction and, therefore, the circuit court

erred by granting it. Responding, the defendant argues that

there was evidence to support the instruction. We agree with

the defendant.

We have held that a plaintiff has a duty to mitigate his

damages. In the context of a medical negligence claim, we

have stated that "a patient's neglect of his health following

his physician's negligent treatment may be a reason for

reducing damages, but does not bar all recovery." Lawrence,

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226 Va. at 412, 309 S.E.2d at 317. Generally, whether a

plaintiff acted reasonably to minimize his damage is a

question for the jury. Id. at 413, 309 S.E.2d at 318.

We hold that there is sufficient evidence in this record

that would permit the jury to find as a matter of fact that

Mr. Plogger failed to mitigate his damages. For example, Dr.

Donald G. Gregg, who testified on behalf of the plaintiff as

an expert witness, stated that Mr. Plogger should have been

admitted to the hospital, "[a]nd one of the ways to do that

was to go see his family doctor as instructed and be

evaluated" and that had he done so, "he would have survived."

As we have already stated, when Mr. Plogger was discharged

from the emergency room on April 2, 1997, he received

instructions that directed him to make an appointment with his

family physician. However, that physician, Dr. Hamilton,

testified that Mr. Plogger failed to make any appointment to

see him for treatment.

V.

At trial, Dr. David H. Lander qualified as an expert

witness on the subject of emergency medicine. He testified on

behalf of the defendant that, among other things, Dr. Comerci

complied with the standard of care owed to Mr. Plogger.

Lander had testified on behalf of Dr. Comerci in an unrelated

lawsuit, and the plaintiff sought to cross-examine Lander to

show that he had previously testified on Dr. Comerci's behalf

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in an unrelated lawsuit and that he had received prior

compensation from her. The circuit court refused to permit

the plaintiff to elicit this testimony. The plaintiff asserts

that she was entitled to cross-examine Lander on this subject

and that the circuit court abused its discretion in

prohibiting her from doing so. *

The defendant responds that the circuit court gave the

plaintiff "appropriate latitude in cross-examining . . .

Lander." The defendant says that the plaintiff was allowed to

cross-examine Dr. Lander about the compensation he received

for testifying in this case. Continuing, the defendant argues

that the scope of cross-examination is a matter that rests

within the discretion of the circuit court, and the circuit

court may appropriately prohibit a particular line of

impeachment if the court finds that the prejudicial effect of

the impeachment outweighs the probative value of such

testimony.

As the litigants correctly observe, a circuit court has

discretion to limit the scope of cross-examination. Norfolk &

Western Railroad Co. v. Sonney, 236 Va. 482, 488, 374 S.E.2d

71, 74 (1988); see Basham v. Terry, 199 Va. 817, 824, 102

S.E.2d 285, 290 (1958). That discretion, however, is not

*
We find no merit in the defendant's argument that this
Court cannot adjudicate this issue. The circuit court clearly
articulated the reasons it relied upon to limit the scope of
the plaintiff's cross-examination of Dr. Lander.

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without limitations, and a litigant has a right to establish

that a witness is biased. We have stated:

"The bias of a witness, like prejudice and
relationship, is not a collateral matter. The bias
of a witness is always a relevant subject of inquiry
when confined to ascertaining previous relationship,
feeling and conduct of the witness . . . . [O]n
cross-examination great latitude is allowed and
. . . the general rule is that anything tending to
show the bias on the part of a witness may be drawn
out."

Henning v. Thomas, 235 Va. 181, 188, 366 S.E.2d 109, 113

(1988) (quoting Henson v. Commonwealth, 165 Va. 821, 825-26,

183 S.E. 435, 437 (1936)).

Our decision in Henning is instructive in this case. In

Henning, a medical negligence action, the defense counsel

sought to cross-examine the plaintiff's expert witness

regarding how that witness became involved in the trial of

that case. The circuit court refused to permit defense

counsel to cross-examine the expert witness on that subject

other than allowing defense counsel to ask a narrow question

whether the witness was being paid to give his testimony.

Defense counsel argued that the circuit court erred in

prohibiting them from revealing to the jury that the

plaintiff's expert witness was employed by a company engaged

in the business of providing expert testimony in medical

negligence cases. Id. at 187, 366 S.E.2d at 112-13. We

reversed the judgment of the circuit court in favor of the

plaintiff, and we stated:

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 "The defendant doctors were entitled to attempt to
persuade the jury that [the plaintiff's expert
witness] was a 'doctor for hire,' who was part of a
nationwide group that offered themselves as
witnesses, on behalf of medical malpractice
plaintiffs. Once the jury was made aware of this
information it was for the jury to decide what
weight, if any, to give to [the expert witness']
testimony. This was a classic case of an effort to
establish bias, prejudice, or relationship.
"The trial court went too far when it limited
defendants' cross-examination to the bare question
whether [the expert witness] was being paid to
testify."

Id. at 188-89, 366 S.E.2d at 113.

We applied our holding in Henning when we decided Lombard

v. Rohrbaugh, 262 Va. 484, 551 S.E.2d 349 (2001), and we held

that the circuit court did not err in permitting a plaintiff

to cross-examine the defendant's expert witness to show that

the witness had received over $100,000 per year in payments

for the years 1998 and 1999 from the defendant's insurance

company. Id. at 495, 551 S.E.2d at 355. We held that

"testimony concerning liability insurance may be
elicited for the purpose of showing bias or
prejudice of a witness if there is a substantial
connection between the witness and the liability
carrier. If a substantial connection is
demonstrated, its probative value concerning
potential bias or prejudice outweighs any prejudice
to the defendant resulting from the jury's knowledge
that the defendant carries liability insurance."

Id. at 497, 551 S.E.2d at 356.

Similarly, we hold that in this case the plaintiff was

entitled to cross-examine the defendant's expert witness, Dr.

Lander, to show that he had previously testified as an expert

15
witness on behalf of Dr. Comerci and that he had been

compensated. The amount of money that Dr. Comerci paid Dr.

Lander in a prior case was a relevant area of inquiry because

that testimony may have indicated to the jury that he was

biased in her favor. The probative value concerning this

potential bias outweighed any prejudice to Dr. Comerci

resulting from the jury's knowledge that she had been a

defendant in an unrelated lawsuit. Therefore, the circuit

court abused its discretion in failing to permit the plaintiff

to elicit this testimony.

VI.

We will reverse the judgment of the circuit court and

remand this case for a new trial consistent with the views

expressed in this opinion.

Reversed and remanded.

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