Danny R. Holley v. Daniel J. Pambianco, M.D., et al., 270 Va. 180

Summary

The Supreme Court of Virginia held that raw statistical evidence concerning perforation risks during colonoscopy and polypectomy was not probative of the medical malpractice standard of care and was misleading. The court also ruled that evidence of warnings and postoperative instructions could be relevant to the plaintiff's duty to mitigate damages, but found the videotape offered here insufficient for that purpose. The judgment for the defendants was reversed and the case remanded for further proceedings.

Holdings

1. Raw statistical evidence stating the frequency of colon perforations during colonoscopies and polypectomies, without identifying whether the events resulted from negligence, is not probative of any issue in a medical malpractice case and should not be admitted.
2. A medical-malpractice defendant may introduce competent evidence that the plaintiff was warned of complications, symptoms signaling those complications, and the need to report symptoms promptly, for the purpose of proving failure to mitigate damages.
3. The videotape excerpt admitted by the trial court did not tend to prove failure to mitigate damages and its admission was error.
4. Evidence concerning post-operative instructions allegedly given to Holley's wife and the content of Holley's two telephone conversations with the nurse was probative of failure to mitigate damages and was properly admitted; its weight and sufficiency were matters for the jury.
5. The court did not reach the assignment of error concerning whether failure to provide discharge instructions constituted negligence per se.

Questions Presented

1. Whether evidence concerning the statistical risks of colon perforation during colonoscopy and polypectomy was admissible in a medical malpractice case in which informed consent was not at issue.
2. Whether the defense could use evidence of warnings about procedural complications to establish that Holley failed to mitigate his damages.
3. Whether the trial court erred in refusing to instruct the jury that failure to provide discharge instructions constituted negligence per se.

Disposition

reversed_and_remanded