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April 17, 1998
Record No. 971090





Frederick B. Lowe, Judge
Present: All the Justices


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.


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

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 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

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 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

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."

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

Mr. Dunlap decided to obtain the medication from a pharmacy,
go home, and visit Dr. Holland the following 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

At the conclusion of a lengthy trial, the jury returned the
following verdict: "We, the jury, find in favor of the
plaintiff and fix damages at: $0. ZERO DOLLARS." The trial
court entered a judgment confirming the verdict, and the
plaintiff appeals.[1]



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
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.


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]


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 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

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
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).

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.


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 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

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.


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 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

Reversed and remanded.







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

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