WANDA S. MARTIN, EXECUTOR OF THE ESTATE OF MARGARET McDANIEL STARR, DECEASED
GARY LAHTI, ET AL.
THE CIRCUIT COURT OF THE CITY OF DANVILLE James J. Reynolds,
STEPHEN R. McCULLOUGH JUSTICE
S. Martin, the executor of her mother's estate,
challenges the trial court's exclusion of evidence. She
contends the trial court erred in excluding certain proffered
statements that, in her view, should have been admitted as
lay opinion under Rule 2:701 of the Virginia Rules of
Evidence. She also challenges the trial court's exclusion
of a statement the decedent made after the surgery. She
asserts that this statement should have been admitted under
Code § 8.01-397, often referred to as the
"Deadman's Statute." We conclude the trial
court did not abuse its discretion in excluding these items
of evidence and, accordingly, we affirm.
March 21, 2011, Margaret Starr was diagnosed with acute
pancreatitis during a visit to the emergency room of the
Danville Regional Medical Center. Abdominal ultrasound
imaging indicated that Starr's gallbladder
"contain[ed] a small amount of sludge and tiny stones.
Tiny amount of pericholecystic fluid." Dr. Gary Lahti,
who had previously operated on the patient, recommended
removal of Starr's gallbladder.
record contains a consent form, which provides, in relevant
part, "[a]lternative methods of treatment and the risks
and benefits of these alternatives have also been explained
to me, including the possibility of, and risks and benefits
of, no treatment at all." Because Starr's hand was
shaky, Martin signed the consent form on her behalf.
Lahti performed the surgery on March 24, 2011. Martin
testified that the operation was to proceed laparoscopically,
but because Dr. Lahti nicked a bowel during the surgery, Dr.
Lahti had to "open her up." Starr died
approximately one week after the operation due to
complications from the surgery.
brought a medical malpractice action against Dr. Lahti and
the Danville Surgical Center. One of the counts alleged that
Dr. Lahti did not obtain Starr's informed consent to the
procedure. Specifically, the plaintiff alleged that the
defendants "failed to explain that a conservative
non-operative medical course was a reasonable option."
The complaint further alleged that "[i]f the patient had
been properly advised of her options, relative risks, and/or
benefits, and the alternatives to surgery, she would not have
undergone the procedure on March 24, 2011."
defendants filed a demurrer to the informed consent count on
the basis that the plaintiff's allegations were not
sufficient for the plaintiff "to proceed on a claim for
lack of informed consent." The defendants also asked for
a bill of particulars. The trial court denied the demurrer
but granted the bill of particulars. In response, the
plaintiff submitted a bill of particulars in which she
amplified her allegations of lack of informed consent. This
bill of particulars stated that Dr. Lahti testified at his
deposition that he had informed Starr that waiting could lead
to a life-threatening recurrence of pancreatitis.
defendants then filed a motion to dismiss the informed
consent count. The defendants argued that the plaintiff
"ha[d] not adduced a single piece of admissible evidence
to support" the contention that she would not have
undergone the surgery. And, "[w]ithout testimony or like
evidence from the decedent that she would have refused the
surgery [upon full disclosure of her options, relative risks,
benefits, and the alternatives to surgery] . . .
Plaintiff's claim for lack of informed consent fails as a
matter of law." The court granted the motion to dismiss.
Following a motion to reconsider filed by the plaintiff, the
court held a hearing at which the plaintiff presented her
evidence of proximate causation. The evidence consisted of
testimony from Martin and Rachel Meeks, Starr's sister.
testified that she was very close to her mother, who would
"talk to her about anything." Martin would see her
mother "about twice a day." It was Martin's
practice to take her mother to the doctor. Martin would talk
to her mother about what the doctor had said, and the two
would discuss her health care decisions.
had gone through a number of surgeries. In 1980, she
underwent a hysterectomy and treatment for cancer. In 2001,
Dr. Lahti performed a surgery to address Starr's colon
cancer. In addition, Starr had several operations on her eye.
Starr initially told Martin she did not want to go through
the surgeries on her eye, that she did not want "more
cutting on her." Despite this initial reluctance, Starr
agreed to go through with the operations on her eye. Martin
testified that her mother did not want more surgeries,
"just only necessary. She was tired of being cut
took her mother to the emergency room on March 21, 2011.
Doctors discovered that she was suffering from pancreatitis
and that she had gallstones. Starr stayed at the hospital for
several days so doctors could conduct additional tests.
During her mother's stay at the hospital, Martin visited
her and spent hours in her company. Starr steadily improved
and she regained her appetite.
doctors told Martin that her mother "need[ed] her
gallbladder out." Martin remembered that her mother was
nervous and unsure she wanted to have the surgery. Starr
relayed to Martin that "Dr. Lahti told [Starr] that she
needed this surgery." Martin acknowledged that her
mother felt comfortable with Dr. Lahti because of her past
experience with him.
before taking Starr into surgery, Dr. Lahti came in the room
and made a brief statement to Martin about the need for
surgery. He did not mention a non-surgical alternative to
Martin. Likewise, Starr did not mention to Martin anything
about alternatives to the surgery. In Martin's view, her
mother "would have ...