Johnson v. Raviotta, Record No. 012009.

• Citation: 563 S.E.2d 727,264 Va. 27
• Decision Date: 07 June 2002
• Docket Number: Record No. 012009.
• Parties: Oscar JOHNSON, Administrator of the Estate of Cynthia Y. Bell, Deceased, v. Joseph John RAVIOTTA, M.D., et al.
• Court: Virginia Supreme Court

563 S.E.2d 727

264 Va. 27

Oscar JOHNSON, Administrator of the Estate of Cynthia Y. Bell, Deceased, v. Joseph John RAVIOTTA, M.D., et al.

Record No. 012009.

Supreme Court of Virginia.

June 7, 2002.

Thomas W. Williamson, Jr., (Carolyn C. Lavecchia; Williamson & Lavecchia, on briefs), Richmond, for appellant.

Rodney K. Adams; Carlyle R. Wimbish, III (Kelvin Newsome; Anne M. Glenn; Kenneth T. Roeber; LeClair Ryan; Sands, Anderson, Marks & Miller, on briefs), for appellees. Present: All the Justices.

LACY, Justice.

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 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 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 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 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, 71 (1977).

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 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...