722 S.E.2d 551
Va.2012Background
- This case involves a wrongful-death action against Dr. Galumbeck and Plastic Surgery of Tidewater, P.C. following Maritess Lopez’s death from aspiration pneumonia after outpatient surgery on July 30, 2008.
- Lopez, as administrator of Maritess’s estate, alleged medical negligence and sought damages.
- Key evidentiary disputes arose: a surgical log, a website representation about board-certified anesthesiologists, and questions about Dr. Flor’s board certification.
- A juror allegedly misconducted himself during trial, prompting a mistrial motion that the court denied.
- The trial court ultimately entered a verdict for Lopez and the trial court’s judgment was affirmed on appeal.
- Medical bills were admitted into evidence over objection, and various preservation and proffer issues were raised by Dr. Galumbeck.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Juror misconduct and mistrial standard | Lopez contends prejudice from juror Conway's conduct required mistrial | Galumbeck argues misconduct showed bias requiring replacement or mistrial | No prejudice established; trial court did not abuse discretion; mistrial denied |
| Surgical log and refreshing recollection | Surgical log admissible to impeach or refresh recollection; breach of rule 4:12 | No proper record; no preservation; objections not properly proffered | Issue waived; evidence not preserved or properly proffered; not reviewed |
| Dr. Flor’s board certification as collateral issue | Lack of board certification evidence is relevant to credibility | Issue collateral and not preserved; objections raised off the record | Issue waived for appellate review; not reviewable |
| Medical bills as evidence | Bills used to contrast financial emphasis with quality of care | Bills irrelevant to damages; improper for proving medical cost | Court did not abuse discretion; bills admissible to support theory of case |
Key Cases Cited
- Haddad v. Commonwealth of Virginia, 229 Va. 325 (1985) (mistrial prejudice requires demonstration of probable prejudice not automatic ruling on misconduct)
- Commonwealth Transp. Comm’r v. Target Corp., 274 Va. 341 (2007) (record deficient on preservation; burden on appellant to supply sufficient record)
- O'Dell v. Commonwealth, 234 Va. 672 (1988) (proper proffer required for preserved objections)
- Whittaker v. Commonwealth, 217 Va. 966 (1977) (need for a proper record to review trial court rulings)
- Saunders v. Commonwealth, 211 Va. 399 (1970) (waiver when party objects and then offers similar evidence)
- Culbertson v. Commonwealth, 137 Va. 752 (1922) (principle of preserved objections and evidence)
- Snarr v. Commonwealth, 131 Va. 814 (1921) (historical preservation of objections)
- Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006) (relevance and discretion in admitting medical bills)