An 86-year-old retired Greek Orthodox priest, who walked with a quad cane, fell while undressing for an ultrasound, suffering head and brain bleeds that resulted in his death. After the priest was admitted into the intensive care unit, he 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.”
Vasilia Rogakos-Russell, the administrator of the estate of Fr. Rogakos (“the Estate”), subsequently sued the hospital sonographer 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.
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 Virginia medical malpractice wrongful death 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 appealed, arguing that the final judgment cannot be sustained under the first sentence of Virginia’s Dead Man’s Statute because Fr. Rogakos’s statements regarding his account of the fall were not corroborated.
Virginia’s Dead Man’s Statute, Code § 8.01-397
Virginia’s Dead Man’s Statute, Code § 8.01-397, provides, in relevant part: “In an action by or against a person who, from any cause, is incapable of testifying, or by or against the committee, trustee, executor, administrator, heir, or other representative of the person so incapable of testifying, no judgment or decree shall be rendered in favor of an adverse or interested party founded on his uncorroborated testimony. In any such action, whether such adverse party testifies or not, all entries, memoranda, and declarations by the party so incapable of testifying made while he was capable, relevant to the matter in issue, may be received as evidence in all proceedings including without limitation those to which a person under a disability is a party.”
The Court of Appeals of Virginia (“Virginia Appellate Court”) stated in its unpublished Memorandum Opinion field on October 31, 2023: “Here, the Hospital’s argument is flawed at the outset because, under the plain language of Code § 8.01-397, it is the testimony of the “adverse or interested party” that requires corroboration to sustain a judgment in the adverse or interested party’s favor—not the statements of the decedent. This is a subtle, yet critical distinction. In this case, Vasilia, administrator of Fr. Rogakos’s estate, as a party to the record, is an adverse party to the Hospital; Ms. Rogakos and Georgia are interested parties, since they have a pecuniary interest in the result of the suit. Thus, their status as adverse or interested parties subjected their testimony regarding Fr. Rogakos’s account of the fall to the corroboration requirement under the Dead Man’s Statute to sustain a judgment in the Estate’s favor.”
“We conclude that the testimony of Ms. Rogakos, Vasilia, and Georgia regarding Fr. Rogakos’s account of the fall was sufficiently corroborated by Dr. Tadros and Fr. Bessinas. Both men were disinterested parties to the action and thus were competent witnesses whose testimony was not subject to the corroboration requirement of the Dead Man’s Statute. As such, their testimony regarding Fr. Rogakos’s account of the fall could legitimately serve as corroborative evidence of Ms. Rogakos’s, Vasilia’s, and Georgia’s testimony.”
“Further, the testimony of Dr. Tadros and Fr. Bessinas was fully consistent with that of Fr. Rogakos’s family members regarding Fr. Rogakos’s account of the fall and supported an essential allegation raised in the pleadings—namely, that an unlocked ultrasound stretcher caused Fr. Rogakos’s fall. Dr. Tadros testified 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, [and] fell.” 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.” Thus, Dr. Tadros’s and Fr. Bessinas’s testimony sufficiently corroborated Ms. Rogakos’s, Vasilia’s, and Georgia’s testimony regarding Fr. Rogakos’s account of the fall. Since the testimony of the adverse or interested parties in this case was sufficiently corroborated by other competent witnesses, we hold that the final judgment can be sustained under the first sentence of the Dead Man’s Statute.”
The Virginia Appellate Court further held that the plaintiff’s experts “did not offer an expert opinion as to whether the Hospital’s negligence proximately caused Fr. Rogakos’s fall. We conclude that such expert opinion on causation was unnecessary in this case, however, because whether or not the Hospital’s negligence caused Fr. Rogakos’s fall was an issue that fell within the jury’s common knowledge and experience, and thus did not require specialized medical knowledge … Moreover, the Estate did not have to rely on expert testimony to prove that Fr. Rogakos’s fall caused his injuries and death because the Hospital stipulated to that fact during trial.”
“The evidence supports the conclusion that Fr. Rogakos’s fall was a reasonably foreseeable consequence of the Hospital’s negligence. In this case, the Estate’s expert witnesses established that the standard of care required the Hospital to assess Fr. Rogakos as a fall risk and assist him in preparing for his ultrasound to minimize any risk of a fall and to ensure his safety. Thus, it was reasonably foreseeable that Fr. Rogakos could fall while preparing for his ultrasound if the Hospital failed to adhere to the standard of care by not offering and providing him any assistance. Moreover, considering the fact that Fr. Rogakos was an elderly 86-year-old man with difficulty walking and a history of medical issues, it was also reasonably foreseeable that he could potentially experience a serious fall that could result in catastrophic injury and, ultimately, death.”
“We also conclude that the Estate’s evidence was sufficient to prove that the Hospital’s negligence proximately caused Fr. Rogakos’s fall. The expert testimony in this case established 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. Critically, both of the Estate’s expert witnesses testified that the fall would have been prevented if the Hospital had complied with the standard of care. Thus, the jury could conclude that the Hospital’s failure to assist Fr. Rogakos was the proximate cause of his fall because this was an “act or omission . . . [that] produce[d] the event, and without which that event would not have occurred” … Moreover, the exact nature of Fr. Rogakos’s fall was not left to pure conjecture or speculation in this case because the Estate presented the testimony of five different witnesses who all gave similar testimony as to Fr. Rogakos’s account of the fall … “
The Virginia Appellate Court concluded: “The Hospital finally asserts that the trial court erred in denying the Hospital’s motions to strike and to set aside the verdict because there was no evidence that, had Regan offered to assist Fr. Rogakos, he would have accepted the offer. The Hospital’s argument fails because the applicable standard of care as testified to by the Estate’s expert witnesses required Regan to do more than simply offer assistance to Fr. Rogakos: the standard of care required Regan to actually provide Fr. Rogakos assistance in preparing for his ultrasound, which was not dependent on whether he would have accepted an offer of assistance or not.”
Source Bon Secours-DePaul Medical Center, Inc. v. Rogakos-Russell, Record No. 1134-22-1.
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