Bon Secours-Depaul Med. Ctr. v. Rogakos-Russell

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BON SECOURS-DEPAUL MEDICAL CENTER, INC., t/a DEPAUL MEDICAL CENTER, ET AL. v. VASILIA C. ROGAKOS-RUSSELL, ADMINISTRATOR OF THE ESTATE OF CONSTANTINE P. ROGAKOS, DECEASED

No. 1134-22-1

Court of Appeals of Virginia

October 31, 2023

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Michelle J. Atkins Judge

A. William Charters (C. Thea Pitzen; Jeffrey S. Kiser; Goodman Allen Donnelly, PLLC, on briefs), for appellants.

Erin K. DeBoer (Amberley G. Hammer; Anchor Legal Group, PLLC Amberley Hammer Law, P.C., on brief), for appellee.

Present: Judges AtLee, Causey and Callins Argued at Norfolk Virginia

MEMORANDUM OPINION ^[*]

DOMINIQUE A. CALLINS JUDGE

In this medical malpractice case, Bon Secours-DePaul Medical Center, Inc. and Bon Secours-DePaul Medical Center, LLC (collectively, "the Hospital") appeal a jury verdict finding the Hospital liable for negligently causing the fall and subsequent death of Father Constantine P. Rogakos ("Fr. Rogakos"). On appeal, the Hospital asserts that the trial court erred in finding that Fr. Rogakos's hearsay statements regarding his fall did not require corroboration under Virginia's Dead Man's Statute, Code § 8.01-397; in failing to strike the testimony of the Estate's expert witnesses; in denying the Hospital's request to use a stretcher as a demonstrative exhibit; in refusing to give a jury instruction offered by the Hospital; and in denying the Hospital's motions to strike and to set aside the verdict. For the following reasons, we affirm.

BACKGROUND

"In accordance with well-established principles, we recite the facts in the light most favorable to [the Estate], the prevailing party at trial." Cooper Indus., Inc. v. Melendez, 260 Va. 578, 584 (2000). "The verdict of the jury in favor of [the Estate], upon which the trial court entered judgment, settles all conflicts of testimony in [the Estate's] favor and entitles [the Estate] to all just inferences deducible therefrom." Id. (quoting Pugsley v. Privette, 220 Va. 892, 901 (1980)).

Fr. Rogakos was an 86-year-old retired Greek Orthodox priest. In the year before his death, Fr. Rogakos could no longer officiate church services independently because he "had difficulty walking and standing on his own." During church services, another priest "would have to hold his arm" to assist him in ascending the stairs to the altar. Fr. Rogakos drove himself to his church office daily, but he used a "quad" cane for walking when he left his house. Fr. Rogakos was able to wash, feed, and dress himself independently at home, but he used a "big chair" to sit in while changing his clothes. Fr. Rogakos also had a "history of multiple medical problems including chronic atrial fibrillation," a type of heart arrhythmia.

On Fr. Rogakos's birthday on October 26, 2018, he traveled to DePaul Medical Center in Norfolk, accompanied by his wife, Eleni Rogakos. Dr. Nabil Tadros, Fr. Rogakos's primary care physician, had ordered an outpatient abdominal ultrasound to evaluate Fr. Rogakos's abdominal symptoms. Two days before the ultrasound appointment, Fr. Rogakos's neurologist had observed that Fr. Rogakos had an abnormal "shuffling gait" when he walked. A hospital sonographer, Joanna Regan ("Regan"), arrived at the waiting room to take Fr. Rogakos to an exam room for his ultrasound. Fr. Rogakos used his cane when walking to the exam room.

When Fr. Rogakos and Regan arrived at the exam room, Regan "instructed him to remove [his] clothing from the waist up" and "put on the gown open in the back." Fr. Rogakos responded, "okay," and Regan stepped out of the room to let him change. A few minutes later, Regan knocked on the exam room door, cracked it open, and asked Fr. Rogakos if he was ready, to which he responded, "no." Then, within a couple of seconds, Regan "heard what sounded like a fall" and found Fr. Rogakos moaning and grunting on the floor in front of the ultrasound stretcher. Regan called a "code green," and emergency medical personnel arrived and transported Fr. Rogakos to the hospital's emergency department.

Upon evaluation in the emergency department, Fr. Rogakos was "found to have large right periorbital hematoma as well as extracranial hemorrhage, with subdural and intracerebral elements." Fr. Rogakos was admitted into the intensive care unit and was interviewed by Dr. Tadros. In a written medical report, Dr. Tadros observed that Fr. Rogakos "was awake and verbal" and had stated that the ultrasound stretcher "was unlocked and when he leaned over to change his clothes, it moved and he lost his balance, fell, etc." Shortly after the interview, Fr. Rogakos's mental condition began deteriorating. He underwent a craniotomy and evacuation of the subdural hematoma and was then sedated and placed on a ventilator. After several days without improvement in his condition, Fr. Rogakos's family withdrew ventilator support. Fr. Rogakos died on November 5, 2018. Before he died, Fr. Rogakos told five individuals how and why his fall occurred: (1) Dr. Tadros, (2) a priest, George Bessinas ("Fr. Bessinas"), (3) Ms. Rogakos, (4) his daughter, Vasilia Rogakos-Russell, and (5) his other daughter, Georgia Rogakos Johnson.

Vasilia Rogakos-Russell, the administrator of the estate of Fr. Rogakos ("the Estate") subsequently sued Regan^[1] and the Hospital on claims of wrongful death and survivorship, alleging that the Hospital was negligent in its care and treatment of Fr. Rogakos. The Estate alleged that Fr. Rogakos fell because he had leaned on an ultrasound stretcher that was not locked into place, causing him to fall and hit his head, ultimately leading to his death. The Estate alleged that Regan was negligent by leaving Fr. Rogakos alone to prepare for his ultrasound, failing to ensure that the wheels on the ultrasound stretcher were locked, and failing to take precautions to prevent him from falling.

In May 2022, the Circuit Court of the City of Norfolk held a five-day jury trial. At the start of the trial, the Hospital stipulated that Fr. Rogakos "fell and struck his head while alone in the ultrasound room" and that, "[a]s a result of the fall, [he] suffered a right periorbital hematoma and brain injury requiring hospital admission." The Hospital also stipulated that Fr. Rogakos "did not recover from the injuries he suffered from the fall and died on November 5, 2018."

During its case-in-chief, the Estate elicited testimony regarding Fr. Rogakos's account of the fall from the five individuals with whom Fr. Rogakos spoke before his death. Dr. Tadros testified to his written statements in Fr. Rogakos's medical report that Fr. Rogakos told him that "the stretcher was unlocked, and when he leaned over to change his clothes, it moved, and he lost his balance, fell, et cetera." The medical report was admitted into evidence. Fr. Bessinas testified that Fr. Rogakos told him that "while he was in the room by himself changing, he supported himself on the ultrasound bed which gave way, and he fell and injured his head." Ms. Rogakos testified that Fr. Rogakos told her, "I went close to the bed and took my clothes off. And I went and put my right arm on the bed to support myself," "the bed moved and I fell down and I hit myself here." Vasilia testified that Fr. Rogakos told her, "I leaned on the bed for support, and it moved, and I lost my balance, and I couldn't catch myself. I fell." Georgia testified that Fr. Rogakos "told me that he leaned on the ultrasound bed and that the bed moved and that he lost his balance and he fell."

The Estate also elicited testimony from two expert witnesses: Steven Smith, an ultrasound technologist, and Joyce Hall-Ewell, a radiological technologist. According to both experts, the standard of care for preparing patients for ultrasounds required Regan to assess whether Fr. Rogakos was a fall risk, ensure that the wheels on the ultrasound stretcher were locked, stay with him in the ultrasound room, offer and provide him assistance, and help him sit down on the ultrasound stretcher to prevent a fall. The experts testified that the Hospital breached the standard of care by failing to assess Fr. Rogakos as a fall risk, failing to offer and provide him assistance in preparing for his ultrasound, failing to assist him in sitting on the ultrasound stretcher, and failing to ensure that the stretcher wheels were locked. Both experts opined that, had Regan complied with the standard of care, the fall would have been prevented.

After the Estate rested, the Hospital moved to strike on several grounds, all of which were denied by the trial court. The Hospital then presented evidence in its defense and renewed its motion to strike, which was again denied by the trial court. The court then submitted the case to the jury to determine whether the Hospital was negligent and whether such negligence was the proximate cause of Fr. Rogakos's fall. The jury returned a verdict in favor of the Estate and awarded two million dollars in damages to Fr. Rogakos's wife and two daughters. The Hospital renewed its motion to strike and moved to set aside the verdict, for the entry of judgment notwithstanding the verdict, and for a new trial. The trial court did not enter judgment at that time and provided the parties time to submit written post-trial motions.

On May 31, 2022, the Hospital filed a "Motion to Set Aside the Jury's Verdict and Motion for a New Trial" and a "Motion to Set Aside the Verdict and Motion for Judgment Notwithstanding the Verdict." The trial court denied both motions in a letter opinion and issued a final order on July 7, 2022. This appeal followed.

ANALYSIS

I. Dead Man's Statute

The Hospital asserts that the final judgment in this case cannot be sustained under the first sentence of Virginia's Dead Man's Statute because Fr. Rogakos's...