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Martin v. Lahti

Supreme Court of Virginia

February 22, 2018





         Wanda 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.


         On 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.

         The 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.

         Dr. 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.

         Martin brought a medical malpractice action against Dr. Lahti and the Danville Surgical Center.[1] 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."

         The 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.

          The 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.[2] The evidence consisted of testimony from Martin and Rachel Meeks, Starr's sister.

         Martin 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.

         Starr 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 up."

          Martin 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.

         Several 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.

         Just 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 ...

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