News & Insights
The Supreme Court of Virginia Rejects Multiple Challenges to a $2 Million Medical Malpractice Verdict.
Bon Secours-DePaul Med. Ctr., Inc. v. Rogakos-Russell, Record No. 230879 (Va. Jan. 2, 2025)
Facts: Father Constantine Rogakos, an 86-year-old Greek Orthodox priest, went to Bon Secours-DePaul Medical Center for a routine ultrasound. Father Rogakos used a quad cane and had a shuffled gait. The sonographer brought him to the ultrasound room, which had no chair but did have a wheeled hospital stretcher. The sonographer left the room so that Father Rogakos could change. While waiting, she heard a sound “like a fall.” When she rushed back to the room she found Father Rogakos on the floor in his undershirt, perpendicular to the stretcher with his pants unfastened. He died after ten days in the hospital due to a brain injury. Before his death, however, he made statements to his wife, two daughters, a fellow priest, and his treating physician that he leaned on the wheeled stretcher while changing, the stretcher moved, and he lost his balance and fell.
Father Rogakos’s estate filed a wrongful death and survivorship action against the hospital, alleging that the sonographer negligently failed to monitor and assist Father Rogakos while he changed and failed to ensure the wheels on the stretcher were locked. The hospital wanted to use a wheeled stretcher that was the same make and model as the one in the ultrasound room as a demonstrative aid, but the trial court barred its introduction because it was not the same stretcher and might therefore mislead the jury. At trial, over the hospital’s objection, the estate offered Father Rogakos’s statements about his fall into evidence. The trial court also refused the hospital’s proposed multiple causation instruction, which provided that if “the death” of Father Rogakos could have resulted from two causes, one for which the hospital was responsible and one for which it was not, and the jury could not determine which of the causes “occasioned [Father Rogakos’’] fall,” the estate could not recover.
At the end of the trial, the trial court denied the hospital’s motion to strike. The jury awarded the estate $2,000,000. The hospital appealed to the Court of Appeals, which affirmed the judgment. So, it appealed to the Supreme Court of Virginia.
Issues: (1) Whether Father Rogakos’s statements were properly admitted under the Dead Man’s Statute without corroboration. (2) Whether the hospital’s jury instruction on multiple causation was properly rejected. (3) Whether the stretcher was properly excluded as a demonstrative aid. (4) Whether the hospital’s motion to strike was properly denied.
Holdings: (1) Yes. The testimony from the fellow priest and treating physician did not require corroboration because they were neither adverse nor interested parties. (2) Yes. The instruction contained an internal inconsistency that mixed the consequence of the fall with the cause of the fall. (3) Yes. The trial court did not abuse its discretion in excluding the stretcher as a demonstrative aid. (4) Yes. Credible evidence supported the jury’s verdict that Father Rogakos would not have fallen absent the hospital’s negligence.
Notes: (1) The Dead Man’s Statute prohibits a judgment founded on the uncorroborated testimony of an “adverse or interested party.” While the Court assumed without deciding that Father Rogakos’s family’s statements needed corroboration, it found that since his fellow priest and treating physician were neither adverse nor interested (they had no financial interest in the outcome of the case) parties, their testimony did not require corroboration. For three reasons, the Court also rejected the hospital’s argument that Father Rogakos himself was an interested party. First, by statute, judgment in a wrongful death action is in favor of the decedent’s personal representative, not the decedent. Second, Father Rogakos was not the witness; he was a hearsay declarant. He gave no testimony that needed corroboration. Finally, Father Rogakos was not an “interested” person because the judgment could not benefit him personally.
(2) The Court found that the instruction offered by the hospital conflated the undisputed cause of death—the fall—with the disputed cause of the fall itself. The instruction began, “[i]f you believe…that the death of [Father Rogakos] might have resulted from either of two causes…” But the parties had stipulated that the fall caused Father Rogakos’s death. The instruction ended, “if you are unable to determine which of the two causes occasioned [Father Rogakos’s] fall, then the plaintiff cannot recover.” Since the instruction intermingled “the stipulated cause of death, which was not at issue, and the cause of the fall, which was very much at issue,” the Court found that it could have confused the jury and was properly rejected.
(3) The Court upholds the trial court’s decision to exclude the stretcher as a proper exercise of its discretion. It found the trial court could “sensibly be leery” of the risk that use of a stretcher other than the one at issue could mislead the jury, and that the hospital could rely on photographs of the stretcher instead, which it did.
(4) The Court has “no difficulty” affirming the denial of the motion to strike. The hospital argued that the estate did not establish proximate cause, but the jury could have credited Father Rogakos’s statements that he fell because the stretcher moved when he leaned on it. And, the estate offered expert testimony that the hospital did not comply with the standard of care when it failed to take measures to prevent the fall of an 86-year-old man who walked with a shuffled gait and quad cane.