93 Va. Cir. 8
Roanoke County Cir. Ct.2016Background
- Mark C. Harris (20) was treated April 6–7, 2011, at Carilion Stonewall Jackson ER by Dr. Patricia Schirmer for tremors, fever, myalgias and other symptoms; he was alert and oriented but later died of serotonin syndrome from Dextromethorphan and Selegiline interaction.
- Two weeks earlier (March 22, 2011) Mark had a suicide attempt/overdose involving Selegiline and Vyvanse, was hospitalized, transferred to UVA psychiatric care, and told to allow a two‑week washout when switching antidepressants.
- On April 6 Mark had purchased Dextromethorphan, experienced relationship stress, took an overdose, and in the ER denied recent Selegiline use (then qualified his denial) and made statements (e.g., “I got it right this time”) that defendants introduced as evidence of suicidal intent and purposeful concealment.
- Autopsy showed Selegiline remained in his system and death from acute Dextromethorphan/Selegiline toxicity; defendants asserted contributory negligence and other affirmative defenses (illegality and assumption of risk), with the latter two later struck.
- After a five‑day jury trial, the jury returned verdict for defendants; plaintiffs objected post‑trial to contributory negligence instructions, admission of pre‑treatment evidence (prior attempt, computer searches, statements), Deadman’s Statute instruction, and refusal to give a limiting instruction or grant a mistrial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether jury should have been instructed on contributory negligence | No more than a scintilla of admissible evidence supported contributory negligence instruction. | Evidence supported inference that decedent intentionally concealed recent Selegiline use and thus contributed to misdiagnosis. | Overruled: court found more than a scintilla, contemporaneousness satisfied, instruction proper for jury. |
| Admissibility under Va. R. Evid. 2:401/2:403 of prior suicide attempt, computer searches, statements, meds history | Prior events and statements were irrelevant and unduly prejudicial. | Evidence was relevant to decedent’s state of mind, knowledge of drug interactions, and to defendants’ theory of intentional concealment; prejudice was not unfair. | Overruled: evidence relevant and not unfairly prejudicial; admissible. |
| Admission of evidence tied to affirmative defenses (illegality, assumption of risk) after those defenses were later struck | Allowing evidence before striking defenses was reversible error and prejudicial; should have been excluded by motion in limine. | Same evidence was admissible for contributory negligence; striking defenses cured any misnomer; motion in limine discretionary. | Overruled: striking defenses did not require mistrial; evidence admissible for other legitimate purposes. |
| Deadman’s Statute corroboration and limiting instruction/mistrial requests | Testimony by Dr. Schirmer lacked sufficient corroboration; limiting instruction should have been given; mistrial required after defenses struck. | Multiple witnesses and circumstantial evidence corroborated doctor’s testimony; limiting instruction was untimely; mistrial unnecessary. | Overruled: corroboration (direct and circumstantial) sufficient for jury; limiting instruction refused as untimely; mistrial not warranted. |
Key Cases Cited
- Lawrence v. Wirth, 226 Va. 408, 309 S.E.2d 315 (Va. 1983) (patients may generally rely on physician; contributory negligence instruction improper where delay in seeking second opinion was not contemporaneous).
- Eiss v. Lillis, 233 Va. 545, 357 S.E.2d 539 (Va. 1987) (contributory negligence improper where plaintiff’s act occurred before physician’s alleged negligence and physician knew of the intervening act).
- Sawyer v. Comerci, 264 Va. 68, 563 S.E.2d 748 (Va. 2002) (defendant must adduce more than a scintilla to warrant contributory negligence instruction; focus on victim’s understanding of risk and contemporaneousness).
- Ponirakis v. Choi, 262 Va. 119, 546 S.E.2d 707 (Va. 2001) (no contributory negligence where patient’s nondisclosure concerned whether prior condition qualified as a "serious disease"; objective reasonable‑person standard applied).
- Gravitt v. Ward, 258 Va. 330, 518 S.E.2d 631 (Va. 1999) (contributory negligence instruction improper where record showed plaintiff had informed physician; disparity in medical knowledge can be qualified by common knowledge).
- Diehl v. Butts, 255 Va. 482, 499 S.E.2d 833 (Va. 1998) (trial court erred in giving contributory negligence instruction and conflating mitigation with contributory negligence).
- Chandler v. Graffeo, 268 Va. 673, 604 S.E.2d 1 (Va. 2004) (contributory negligence instruction improper where alleged negligent act by patient was not contemporaneous and patient could not reasonably know condition was life‑threatening).