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The walking, talking Dead (Man)’s Statute

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Witness being sworn in

What’s one to do when dead men tell no tales?

While certain groups of swashbuckling mariners navigating the 21st parallel may disagree, many courts in the United States have held that such tales may indeed be told. It all depends on who’s telling them or what proof you have.

A relic of English Common Law on witness competency and disqualification, the Dead Man’s Statute generally prevents an adverse party from offering the uncorroborated testimony of a deceased, or otherwise unavailable, party, in order to secure a favorable judgment. (See Ed Wallis, Outdated Form of Evidentiary Law: A Survey of Dead Man’s Statutes and a Proposal for Change, 53 Clev. St. L. R. 75, 77 (2005).)

Historically, the corroboration requirement prevented a litigant from having the benefit of his own testimony where, because of death or incapacity, the personal representative of the deceased litigant had been deprived of their decedent’s testimony on that matter. (See Roy R. Ray, The Dead Man’s Statute – A Relic of the Past, 10 Sw L. J. 390 (1956).)

While the idea sounds simple enough, in practice a state’s Dead Man’s Statute was, and still is, mired in ambiguity and complication depending on how that state enacts its statute and how its courts interpret it. (See Wesley P. Page, Dead Man Talking: A Historical Analysis of West Virginia’s Dead Man’s Statute and a Recommendation for Reform, 109 W. Va. L. Rev. 897, 901-906 (2019).)

As you will see, Virginia’s own Dead Man’s Statute brings its own spin to this antiquated axiom — one which presents unique challenges to medical professionals and the medical malpractice litigator.

Virginia’s Dead Man’s Statute: Va. Code § 8.01-397

In 1919, the General Assembly enacted Virginia’s Dead Man’s Statute. (See Thomas M. Hendell, Virginia’s Deadman’s Statute: One Hundred Years Old and Very Much Alive in Virginia Jurisprudence, 27:4 J. Va. Trial Lawyers Ass’n. 40, 41 (2019).)

Nicholas Stamatis

Nicholas Stamatis

This legislative change relaxed a harsher common law rule which excluded any interested witness from testifying at trial on the grounds that such interested individual could not be trusted to provide truthful testimony.

The statute, as it exists today, has changed relatively little since it was first enacted more than 100 years ago. Codified under Code § 8.01-397, and reproduced verbatim under Supreme Court Rule 2:804(b)(5), the statute reads:

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. In any such action, whether such adverse party testifies or not, all entries, memoranda, and declarations by the party so incapable of testifying made while he was capable, relevant to the matter in issue, may be received as evidence in all proceedings including without limitation those to which a person under a disability is a party. The phrase “from any cause” as used in this section shall not include situations in which the party who is incapable of testifying has rendered himself unable to testify by an intentional self-inflicted injury.

For the purposes of this section, and in addition to corroboration by any other competent evidence, an entry authored by an adverse or interested party contained in a business record may be competent evidence for corroboration of the testimony of an adverse or interested party. If authentication of the business record is not admitted in a request for admission, such business record shall be authenticated by a person other than the author of the entry who is not an adverse or interested party whose conduct is at issue in the allegations of the complaint.

Va. Code § 8.01-397. While the statute and its text can be dense and confusingly worded, its essence can be boiled down as follows: (1) In a suit by or against a decedent’s estate, an adverse/interested party cannot secure a judgment if their testimony is uncorroborated; (2) in any such suit, regardless of whether an adverse party testifies, the decedent’s relevant hearsay statements are admissible in evidence.

Code § 8.01-397 is also unique in that it was amended in 2013 to codify business records as competent evidence for satisfying the statute’s corroboration requirement provided that the record’s authenticity is either admitted in discovery or confirmed by a custodian of records or other uninterested party.

The Virginia Dead Man’s Statute has been interpreted by the courts and evolved accordingly over time. Before delving in on how best to navigate and apply the statute for medical professionals and malpractice litigators, one should be aware of substantive developments affecting those fields.

Notable developments in Virginia jurisprudence

Corroboration of unavailable party testimony — The first challenge offered by the Virginia Dead Man’s Statute lies in its requirement that adverse party testimony against a decedent be corroborated. Virginia courts have held that within the meaning of the Dead Man’s Statute, “corroborating evidence” refers to “such evidence as tends to confirm and strengthen the testimony of the witness sought to be corroborated — that is, [it] tends to show the truth, or the probability of its truth.” (See Whitmer v. Marcum, 214 Va. 64, 67 (1973).)

To be deemed sufficient under the statute, “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… if unsupported, would be fatal to the case.” (See Hereford v. Paytes, 226 Va. 604, 608 (1984).)

However, it is not necessary that the corroborating evidence itself be sufficient to support a verdict. (See Rice v. Charles, 260 Va. 157, 167 (2000).) Where a confidential relationship, such as a doctor-patient relationship, exists between an adverse party and a decedent-litigant, a higher degree of corroboration is necessary to satisfy the Dead Man’s Statute. (See Diehl v. Butts, 255 Va. 482, 489-90 (1998).)

Notably, there is not much binding authority or guidance as to what constitutes satisfaction of this higher standard. Nonetheless, per the Dead Man’s Statute itself, business record entries may serve as competent corroborating evidence, a tool which is critical to medical practitioners and malpractice litigators whose cases often rise and fall on the contents of medical records. (See Va. Code § 8.01-397.)

The statute’s hearsay exception — The second challenge posed by the Virginia Dead Man’s Statute is its seemingly unfettered embrace of a decedent’s hearsay statements. The letter of the law provides that only those hearsay statements which are not relevant to the matters at issue can be disqualified from admission.

While this appears excessively broad, and basically permits a decedent to bring in whatever potentially unreliable hearsay they want so long as it is relevant to the issues being decided, the Virginia Supreme Court has affirmed that this an accurate statement of the statute. (See Shumate v. Mitchell, 296 Va. 532, 548 (2018).) Accordingly, the question becomes how best to combat such statements.

Dangers of a Dead Man (and how to avoid them)

For medical professionals and the malpractice litigators who defend them, Dead Man’s Statute problems arise with unfortunate frequency. In 2017, it was estimated that over 250,000 medical malpractice cases result in patient death annually in the United States. (See James G. Anderson, et al., Your Health May Kill You: Medical Errors, 234 Stud. Health Tech. Informatics 13-14 (2017).)

Under Virginia law, in each case of medical malpractice resulting in wrongful death or incapacity, the sufficiency of a practitioner’s, or their staff’s, record keeping has the potential to greatly impact the defense of the case, especially where the decedent-patient attended medical care by themselves. This is particularly true where, due in large part to COVID-19, medical care has shifted to telemedicine or otherwise restricted those individuals who a patient can bring with them into the examination room. So, where does this leave physicians who certainly are not expecting to be sued for their care anytime soon?

Medical professionals should take care to accurately record their examination of a patient or the procedures performed on them. If it isn’t written, it didn’t happen. Or at least it will be significantly more difficult to prove that it did. Ensuring that a complete and accurate medical record exists is the best line of defense should catastrophe occur.

For malpractice litigators, the providence of such records can be realized through a request for admission to the decedent asking them to admit or deny the authenticity of such records. If the authenticity of the records is admitted, they can be introduced as competent corroborative evidence.

But take heed that, in certain instances, this evidence alone may not be sufficient. If the authenticity is denied, or a request for admission overlooked, the litigator will either need to authenticate the records at trial through the custodian; or if no custodian of records exists, through a person other than the author, and who is not an adverse or interested party whose conduct is at issue.

The secondary danger of the Virginia Dead Man’s Statute is its opening the floodgates to a decedent’s hearsay statements. Unfortunately, there is no real technical secret to opposing such statements, other than that they can be excluded if not relevant to a matter at issue. Here, the malpractice litigator should endeavor to learn all they can through written discovery and depositions in order to combat any potentially unreliable hearsay statements that are admitted. By casting doubt on the credibility of such statements using other available circumstantial evidence, the litigator is best positioned to argue to the jury that such statements are merely self-serving and cannot be trusted.

Final thoughts

Every medical institution is different and has certain recording practices, protocols and guidelines. Professionals should review their institution’s regulations, adapt accordingly and try to record information as accurately as possible within those regulations.

Moreover, every situation is unique and the Virginia Dead Man’s Statute in particular continues to confound seasoned attorneys and judges alike. If you have concerns about record keeping or believe that the Dead Man’s Statute might invade a case where your care is at issue, consult your attorney.

Nicholas Stamatis is an attorney in the Fairfax office of Hancock, Daniel & Johnson, P.C. He practices in medical malpractice litigation and appellate litigation.