ANALYSIS OF APRIL 4, 2024 SUPREME COURT OPINIONS
(Posted April 4, 2024) This morning the Supreme Court of Virginia hands down two new published opinions.
Medical malpractice
The first decision relates to a jury instruction in a malpractice appeal. The holding in Emergency Physicians of Tidewater v. Hanger will apply in other tort contexts, wherever causation is in issue.
The patient came to an emergency room and was tested for a number of things. The tests showed her blood sodium level to be low, a dangerous condition known as hyponatremia. But the doctor who saw her there didn’t catch the abnormality and sent the patient home with instructions to see her family doctor and a gastroenterologist for abdominal pain.
The patient visited her family doctor six days later. Without knowledge of the abnormal test result, he didn’t assess or treat her hyponatremia; he gave her a prescription for an unrelated medication and he, too, sent her home. Six days after that, her husband found her collapsed on their kitchen floor, bleeding from a head wound. She was taken to a hospital and diagnosed with a traumatic brain injury and profound hyponatremia. An extended period of care there led to her discharge. She sued the individual emergency doctor and her practice for failure to diagnose the condition.
At trial, the patient adduced expert testimony that the probable cause of her fall and injuries was loss of consciousness due to a seizure caused by the undiagnosed hyponatremia. The defense pointed to the prescription from the family doctor as the probable cause, and also suggested that the patient may have simply slipped or tripped in her kitchen for reasons unrelated to her blood sodium.
The defense offered superseding-cause instructions and also one telling the jurors that if the injuries could have resulted from multiple possible causes, at least one of which wasn’t the doctor’s fault, and they couldn’t ascertain which one was the cause, they had to return a defense verdict. The trial court refused that instruction and sent the case to the jury, which returned a seven-figure verdict for the patient. The trial court entered judgment on that verdict.
In the Court of Appeals, the defendants urged only the theory that the alternative cause of the fall was the slip-or-trip explanation. The CAV noted that in arguments on this jury instruction, the defense had argued only the other-medication theory, pointing the finger directly at the family doctor. The court accordingly found the argument waived under the contemporaneous-objection rule, and affirmed the judgment.
The defense appealed again, assigning six errors in the Supreme Court. The justices awarded an appeal on only this one, and today they reverse, holding that the offered instruction was a correct statement of the law and was supported by more than a scintilla of evidence.
The more interesting, and more wide-ranging, aspect of this opinion relates to the CAV’s waiver conclusion. In a holding that will have plenty of trial judges squirming with discomfort, the court cites a 2006 opinion for this premise:
When a trial court refuses to give an instruction proffered by a party that is a correct statement of the law and which is supported by adequate evidence in the record, this action, without more, is sufficient to preserve the issue of whether the trial court erred in refusing the instruction.
Today’s opinion emphasizes the phrase without more and continues that the proponent “need not ‘expressly articulate’ the evidentiary basis for the instruction because the trial court has already heard the evidence and can evaluate its application to the instruction.” That means that even though the defense discussed only the other-medication explanation when arguing this jury instruction, the trial court had to evaluate the evidence for itself to see that the slip-or-trip explanation would justify the instruction.
My sense is that circuit court judges won’t like this holding, because it could empower a party to misdirect the court’s attention in jury-instruction arguments, holding a second basis in reserve in case of a bad verdict. (I’m not saying that that’s what happened here; merely that this is the logical conclusion of today’s ruling.) Under this approach, proponents don’t even have to argue to the circuit court the basis for their tendered instructions. It’s the court’s responsibility to consider all of the evidence and make that judgment call on its own.
You may wish to view this doctrine as an exception to the contemporaneous-objection rule, which is normally a fire-breathing dragon that crushes appellants’ dreams. In virtually all other contexts, it’s up to the litigant to argue a given appellate point first in the trial court. That isn’t true with jury instructions.
This decision reinforces two of my previous conclusions about appeals here in our fair Commonwealth. First, if you’re looking to uncork a jury verdict, the first place to start looking is the instructions. That’s because in evaluating a refused instruction, the appellate court views the evidence in a light most favorable to the proponent of the instruction. (This is one of only two instances I can think of – the other is where a court sets aside a verdict – where an appellant gets a favorable view of the evidence.) The second conclusion is my previous observation that nowadays the Supreme Court of Virginia is the place where large tort judgments go to die.
Justice Mann pens today’s opinion for a unanimous court. This is the second decision announced from appeals argued in the February session, just five weeks ago.
Criminal law
The doctrine of approbate-and-reprobate, a species of waiver, gets a thorough discussion today in Commonwealth v. Holman. Events began when the angry defendant fired a shotgun at an open window, badly wounding his girlfriend. That got him indicted for several felonies; the most serious of those was aggravated malicious wounding, carrying the possibility of a life sentence.
The defense strategy at trial was to contest only one issue: whether the defendant fired the gun with malice, instead of accidentally or recklessly. The defendant pleaded not guilty to the other crimes but didn’t contest them when the evidence came in. One of these, use of a firearm in the commission of a felony, is the topic of today’s opinion.
The strategy worked; at the close of the defense evidence, the circuit court reduced the aggravated malicious wounding charge to unlawful wounding. The defense snapped that up, immediately pleading guilty to the lesser charge. As today’s opinion reports events,
The circuit court stated that the defendant had “stipulated to the other charges” even though he had entered a plea of not guilty. Defense counsel responded “[y]es, sir.”
The court thus convicted the defendant on all counts, fixing punishment at a total of 15 years, with 10 to serve. The defense lawyer confirmed at the sentencing hearing that the defendant had pleaded guilty to all counts.
Except he hadn’t. This matters because the use-of-a-firearm charge enumerates specific companion felonies to which it applies, and unlawful wounding isn’t one of them. On appeal, the Court of Appeals reversed this one conviction, applying the ends-of-justice exception to the contemporaneous-objection rule and declining to apply the approbate-and-reprobate doctrine.
The justices are havin’ none o’ that; the Supreme Court unanimously reverses and reinstates the convictions and the full sentences. In six pages of detailed analysis, Justice McCullough explores the origins and contours of approbating and reprobating, noting that this isn’t the same as a procedural default. Ends of justice may help a convicted defendant to overcome a conviction where his lawyer failed to object or raised an issue too late, but it doesn’t cover intentional strategic choices like this one.
Ordinarily when a court convicts a defendant of something that isn’t a crime, or otherwise isn’t within the reach of a criminal statute, that judgment is void. Today we learn that when a defendant specifically asks for a given outcome, he waives an objection like that for appeal.
This case, too, was argued in the February session. I count seven undecided appeals among those already argued – one from January and six from February. The April session, starting in 12 days, will add six more.
