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November 5, 1999

Record No. 990032





Present: All the Justices


William C. Stevenson, an Associate Professor of
Surgery and Director of Liver Transplantation at the University
of Virginia Medical School, was indicted by an Albemarle County
grand jury on one count of forgery and one count of uttering a
forged writing in violation of Code ? 18.2-172. He pled not
guilty and, following a two-day trial, a jury convicted Dr.
Stevenson of forgery and recommended a fine of $1.00. The jury
acquitted Dr. Stevenson on the charge of uttering a forged
document. The Circuit Court of Albemarle County entered judgment
on the jury verdict. The Court of Appeals, following a rehearing en
banc, affirmed the judgment of the trial court by an
evenly divided vote without opinion. Stevenson v. Commonwealth,
28 Va. App. 562, 507 S.E.2d 625 (1998).

The issue presented to us in this appeal is
whether the facts of this case establish beyond a reasonable
doubt that Dr. Stevenson committed forgery as charged in the
indictment, that is, whether "[o]n or about February 6,
1996, in the County of Albemarle, WILLIAM C. STEVENSON did
unlawfully, feloniously and knowingly forge a cardiac stress test
writing, to the prejudice of Trigon Blue Cross/Blue Shield."
The crime of forgery requires not only that a writing be forged,
but that the forged writing prejudiced or could prejudice the
right of another. Terry v. Commonwealth, 87 Va. 672, 673,
13 S.E. 104, 104 (1891).

In this case, Dr. Stevenson admits that he
produced a forged writing by altering a date on his patient’s
cardiac stress test report. However, Dr. Stevenson argues that
when he altered the stress test report, there was no possibility
that the altered document did or could prejudice Trigon’s rights.
Therefore, Dr. Stevenson asserts he was not guilty of the crime
of forgery. We agree.

The evidence taken in the light most favorable
to the Commonwealth, the prevailing party at trial, showed the
following. In 1995, Leonard Kraditor, a patient of Dr. Stevenson,
began experiencing liver failure. Dr. Stevenson sought to have
Kraditor placed on the nationwide list of patients needing
organs, but was told by the University of Virginia Medical Center
(Medical Center) personnel that it would not place Kraditor on
the transplant list until Kraditor’s medical insurance carrier,
Trigon Blue Cross/Blue Shield (Trigon), pre-authorized payment
for the transplant operation.

Dr. Stevenson was anxious to have Kraditor
placed on the transplant list before the Christmas holiday.
Although he submitted a letter explaining the medical necessity
for the liver transplant as part of the procedure for obtaining
pre-authorization from Trigon, and attempted to contact the
director of medical policy at Trigon, he was unable to secure the
pre-authorization before the Christmas holiday. Nevertheless, the
administrator of the Medical Center agreed to place Kraditor on
the transplant list without receiving pre-authorization for the
transplant procedure from Trigon.

A liver became available and Dr. Stevenson
successfully performed the transplant operation on January 21,
1996. The next day, January 22, 1996, unaware that the surgery
had been performed, Trigon rejected the pre-authorization request
because Trigon considered Kraditor a high risk for the surgery
and needed the "results of his cardiac, renal and pulmonary
evaluations" before pre-authorization could be issued.

By January 28, Kraditor’s body was rejecting
the new liver. When Dr. Stevenson sought to have Kraditor placed
on the transplant list again, he was told that the Medical Center
would not place Kraditor on the list again until the
"pre-authorization" for the now-completed transplant
surgery was received from Trigon. The only cardiac evaluation
available to Dr. Stevenson was a cardiac stress test performed on
Kraditor in April 1994. On January 30 or 31, Dr. Stevenson
changed the date shown on the report for the administration of
Kraditor’s stress test from April 1994 to October 1995. After
attaching a cover note to the altered stress test report, Dr.
Stevenson left the papers on his desk. Shortly thereafter,
Kraditor decided not to undergo further transplant surgery and
informed Dr. Stevenson of his decision. Kraditor died of liver
failure on February 2, 1996.

On February 6, 1996, the altered stress test
report was sent to Trigon. Relying on the altered stress test
report as an indication that Kraditor’s cardiovascular system
could survive the transplant surgery and recovery, on February
12, 1996 Trigon issued the pre-authorization for Kraditor’s
now-completed liver transplant. Trigon was unaware that the
surgery had been successfully completed at the time it issued
this pre-authorization.

While this evidence establishes that Trigon
relied on the altered stress test report in issuing its
pre-authorization for Kraditor’s January 21 liver transplant
operation, it does not establish that this reliance and
subsequent issuance of the pre-authorization prejudiced or could
have prejudiced Trigon’s rights. According to Trigon officials
who testified at trial, pre-authorization is a mechanism which
allows the medical provider to obtain a preliminary indication of
whether Trigon will pay the costs associated with the medical
treatment to be performed, prior to incurring the expense of
performing the treatment. Pre-authorization, according to Dr.
Richardson Grinnan, Trigon’s Senior Vice-president and Chief
Medical Officer, is a "service to physicians and subscribers
to prevent after-the-fact medical necessity denials."
Although some insurance plans require pre-authorization as a
condition for payment of a claim, Kraditor’s health insurance
policy with Trigon did not. Therefore, any prejudice to Trigon in
terms of liability for the transplant procedure did not include
the existence or non-existence of pre-authorization by Trigon for
the procedure.

More importantly, assuming that issuance of the
pre-authorization could limit Trigon’s ability to contest the
medical necessity of a procedure after the fact, Trigon did not
and could not have suffered such prejudice under the facts of
this case. Dr. Grinnan testified that when procedures are not
pre-approved, determinations as to payment are made on
information available after the procedure. In this case,
according to Dr. Grinnan, when Kraditor survived the liver
transplant without cardiac complications, the altered stress test
"would not have had an adverse determination on whether or
not [Trigon] would have paid that bill." Dr. Grinnan and Dr.
Lawrence Colley, head of Trigon’s medical policy department, both
testified that Trigon would have approved payment for the
procedure once it learned that Kraditor had survived the
operation even if there had been no stress test report.

Our conclusion that potential prejudice to
Trigon was not established in this case is not based simply on
the fact that Trigon was liable for the cost of the procedure
whether or not the pre-authorization was issued. The controlling
fact in this case is that, at the time the forged writing
was made, no prejudice did or could attach to Trigon as a result
of the altered stress test report, because at that time
the surgery had been successfully completed and Trigon
acknowledged that its liability existed at that time.
Accordingly, any limitation on Trigon’s right to contest the
medical necessity of the procedure imposed by the subsequent
issuance of the pre-authorization was immaterial. Because
Trigon’s liability could not have been affected by the forged
writing, no real or potential prejudice to Trigon could result
from the forged writing. Therefore, in the absence of such
prejudice to Trigon, the crime of forgery was not established.
Accordingly, we will reverse the conviction and dismiss the

Reversed and dismissed.