Kimberly Price Burch, etc. v. Jeff Sensenig, D.O. ( 2024 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Humphreys,* Huff and Athey
Argued at Virginia Beach, Virginia
KIMBERLY PRICE BURCH,
ADMINISTRATOR OF THE ESTATE
OF JOAN SHEETS ISON, DECEASED
MEMORANDUM OPINION** BY
v. Record No. 0194-23-1 JUDGE ROBERT J. HUMPHREYS
MARCH 19, 2024
JEFF SENSENIG, D.O., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Tyneka L.D. Flythe, Judge
Lee Livingston (Anthony T. Greene; Livingston Law Group PLLC,
on briefs), for appellant.
Elaine D. McCafferty (Donna L. Foster; Woods Rogers Vandeventer
Black PLC, on brief), for appellee.
This appeal arises out of a defense verdict in a medical malpractice case. Kimberly
Burch, the administrator of the estate of Joan Ison, sued Dr. Jeff Sensenig and other medical
professionals for failing to diagnose Ison with a symptomatic aortic aneurysm that ruptured and
caused her death. On appeal, Burch argues that the circuit court erred in refusing her “empty
chair” jury instruction, in giving two “mere happening” instructions, in precluding her from
cross-examining a defense expert on certain topics, and in excluding certain statistical evidence.
*
Judge Humphreys prepared and the Court adopted the opinion in this case prior to the
effective date of his retirement on December 31, 2023.
**
This opinion is not designated for publication. See Code § 17.1-413(A).
BACKGROUND
On June 10, 2016, Joan Ison went to her primary care physician (PCP) complaining of chest
pain. Ison had a known aortic aneurysm and x-rays obtained on the order of her PCP indicated that
her aneurysm may have changed. Accordingly, Ison went to the emergency room for more detailed
testing. At the ER, Ison presented with severe—10 out of 10—chest pain and mid-back pain. The
ER doctor treating Ison was Dr. Jeff Sensenig, who reviewed her medical history, performed a
physical exam, and ordered blood work and a CT scan. The CT scan—interpreted by another
doctor, a radiologist—revealed that the aneurysm was not “significantly changed” when compared
to a CT scan conducted the previous year. Sensenig called the vascular practice treating Ison and
spoke with the “on-call” doctor to relay the details of the new CT scan. The on-call doctor
recommended that Ison follow-up with her treating vascular physician the next week but did not
believe that the aneurysm was causing Ison’s symptoms. Sensenig accordingly discharged Ison
from the ER and told her to return if her symptoms worsened.
Eight days later, Ison returned to the ER complaining again of severe chest and back pain.
Ison reported that the pain level was the same as the last visit. Sensenig again ordered a CT scan—
though this specific scan was different from the previous CT scan in its diagnostic value for
aneurysms. A second radiologist reviewed this CT scan and concluded that there was no change in
Ison’s aneurysm from June 10. Sensenig did not call Ison’s vascular practice on this occasion.
Sensenig reviewed Ison’s chart which revealed that her vascular surgeon had canceled the follow-up
appointment after Ison’s first ER visit. Sensenig decided to admit Ison to the hospital. The
hospitalist on call then became Ison’s treating physician until the next morning when another
hospitalist took over Ison’s care. Prior to transferring Ison’s care to the hospitalist, Sensenig
discussed Ison’s visit and her previous medical history, including the fact that Sensenig called
Ison’s vascular practice on the 10th. On June 20, a CT scan was ordered that revealed that Ison’s
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aneurysm had ruptured or was leaking. Because the hospital where Sensenig worked and where
Ison was admitted did not have the capacity to perform an aneurysm repair surgery, the hospitalists
sought to transfer Ison to another hospital, but she died before the transfer could be made.
Burch, as the administrator of Ison’s estate, filed a complaint against all of the doctors
involved in Ison’s care; however, she settled or non-suited the cases against all of the
doctor-defendants except for Sensenig. Pretrial, Burch designated around a dozen statistical studies
that she sought to introduce into evidence on the survivability of aneurysm repair surgery. At a
pretrial motion in limine, Sensenig moved to exclude the introduction of the raw statistical data from
these studies. The circuit court granted this motion.
Additionally, Dr. Lavingia, defendant’s causation expert, testified at trial that Ison was a
high-risk candidate for repair surgery and that it was his opinion, held to a fair degree of medical
probability, that she would have suffered a complication from the surgery. Dr. Lavingia also opined
that Ison would not have had the surgery even if Sensenig had consulted with a vascular surgeon.
Burch objected to this testimony on the grounds that it was speculative. The circuit court overruled
this objection.
On cross-examination of Dr. Lavingia, Burch sought to ask him whether he would have
wanted to know the level of pain the patient was in and whether Ison’s symptoms indicated a
symptomatic aneurysm. Sensenig objected as the questions were outside the scope of direct
examination, and the circuit court agreed and sustained the objection. Burch never proffered what
she anticipated Dr. Lavingia’s answers to these questions would be.
At the close of the evidence, the circuit court ruled on the parties’ proposed jury instructions.
Over Burch’s objection, the circuit court refused to give a so-called “empty chair” instruction that
read, “You may not consider whether another doctor or person was negligent or contributed to Joan
Ison’s injuries and death.” Burch also objected to the circuit court’s decision to give two “mere
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happening” instructions. Instruction 18 instructed the jury that “The fact that Joan Sheets Ison died
does not, of itself, entitle the plaintiff to recover.” Instruction 19 instructed the jury that “The fact
that a doctor’s efforts on behalf of his or her patient were unsuccessful does not, by itself, establish
negligence.”
The jury returned a defense verdict, and Burch now appeals, assigning error to the circuit
court’s rulings on the jury instructions, the direct and cross-examination of Dr. Lavingia, and the
motion in limine regarding statistical evidence.
ANALYSIS
I. The Jury Instructions
Burch assigns error to the circuit court’s decisions to deny her proposed “empty chair”
instruction and to grant Instructions 18 and 19, the so called “mere happening” instructions.
“The purpose of any jury instruction is to inform the jury of the law guiding their
deliberations and verdict.” Keen v. Commonwealth, 24 Va. App. 795, 807 (1997). Whether to give
or deny jury instructions “rest[s] in the sound discretion of the trial court.” Hilton v.
Commonwealth, 293 Va. 293, 302 (2017) (alteration in original). On appeal, “[a] reviewing court’s
responsibility in reviewing jury instructions is ‘to see that the law has been clearly stated and that
the instructions cover all issues which the evidence fairly raises.’” Chapman v. Commonwealth, 56
Va. App. 725, 735 (2010) (quoting Chibikom v. Commonwealth, 54 Va. App. 422, 425 (2009)).
The Court, therefore, reviews de novo “whether a jury instruction accurately states the relevant
law.” Lawlor v. Commonwealth, 285 Va. 187, 228 (2013) (quoting Orthopedic & Sports Physical
Therapy Assocs., Inc. v. Summit Grp. Props., LLC, 283 Va. 777, 782 (2012)). Further, “[w]hen
considering whether a trial court abused its discretion by denying a [party]’s proffered instruction,
‘we view the facts relevant to the determination of that issue in the light most favorable to [that
party].’” Holloman v. Commonwealth, 65 Va. App. 147, 174 (2015) (quoting Commonwealth v.
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Cary, 271 Va. 87, 91 (2006)). However, “[w]hen granted instructions fully and fairly cover a
principle of law, a trial court does not abuse its discretion in refusing another instruction relating
to the same legal principle.” Stockton v. Commonwealth, 227 Va. 124, 145 (1984).
Burch first argues that the circuit court erred by refusing her “empty chair” instruction.
Burch’s proposed instruction instructed the jury that “You may not consider whether another doctor
or person was negligent or contributed to Joan Ison’s injuries and death.” Burch cited Atkinson v.
Scheer, 256 Va. 448 (1998), as her support for her proposed jury instruction. In Atkinson, the
Supreme Court held that the negligence of a non-party physician does not absolve a party physician
unless the non-party’s negligence was a “superseding intervening cause.” Id. at 455 (“[The
non-party’s] failure to act did not entirely sever the chain of proximate causation set in motion by
[the party’s] alleged negligence.”). In restating the plaintiff’s burden, the Atkinson Court noted that
the plaintiff was entitled to recover if they proved that the party-defendant’s negligence, “even in
the slightest degree . . . , caused [the plaintiff’s] injuries.” Id. The legal principle at issue covered
by Burch’s proposed instruction is therefore causation.
In this case, the jury was fully and fairly instructed on the issue of causation. Instruction
10 instructed the jury to answer “if the defendant was negligent, was his negligence a proximate
cause” of Ison’s death. (Emphasis added). Instruction 11 instructed the jury to find for Burch if
she proved that “Dr. Sensenig’s negligence was a proximate cause of Joan Ison’s death.”
(Emphasis added). Instruction 15 informed the jury that “There may be more than one proximate
cause of death. If the negligence of a defendant proximately caused the death of Joan Ison, the
negligence of the defendant is a proximate cause of Joan Ison’s death even if there were other
acts or omissions that caused Joan Ison’s death.” The jury was fully and fairly informed of the
relevant legal principle of causation, and the circuit court was not required as a matter of law to
provide an additional instruction that was cumulative of the instructions already given.
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Burch also appeals the circuit court’s decision to give two “mere happening” instructions to
the jury. Specifically, Burch objected to Instructions 18 and 19 which read, respectively: “The fact
that Joan Sheets Ison died does not, of itself, entitle the plaintiff to recover[,]” and “The fact that a
doctor’s efforts on behalf of his or her patient were unsuccessful does not, by itself, establish
negligence.” Burch argues that Instruction 19 was 1) argumentative, 2) unsupported by the law,
3) misleading, and 4) cumulative. On appeal, Burch does not argue that Instruction 18 was
argumentative, unsupported, or misleading, but simply cumulative.
As a threshold issue, Instructions 18 and 19 are, in the abstract, correct statements of law.
Instruction 18 correctly states that injury alone does not entitle the plaintiff to recover; Instruction
19 similarly states that a doctor is not an insurer or guarantor of his or her patient’s outcomes. See
Dixon v. Sublett, 295 Va. 60, 67 (2018) (holding that a physician is not an insurer of diagnosis and
treatment). Burch’s argument that Instruction 19 is unsupported by law is not compelling.
Where the circuit court has correctly informed the jury on the law, this Court will only
reverse where the instruction given “may reasonably be regarded as having a tendency to mislead
the jury.” H.W. Miller Trucking Co. v. Flood, 203 Va. 934, 937 (1962); see also Flanagan v.
Harvey, 160 Va. 214, 223 (1933) (reversing lower court for giving a 250-word run-on sentence
jury instruction that, though correct on its face, did not fully explain the appropriate mens rea
requirement for the given case). The Court “will not find error when a jury was instructed
correctly as to the law and the surrounding circumstances assure us that the jury was not confused
about its obligations.” Castle v. Lester, 272 Va. 591, 605 (2006).
In this case, the instructions given were not misleading. Burch argues that Instruction
19’s use of the word “efforts” meant that the jury could have interpreted the instruction as
excusing the physician’s negligence so long as the physician put a good-faith effort forward.
Burch cites Teh Len Chu v. Fairfax Emergency Med. Assocs., Ltd., 223 Va. 383, 384 (1982),
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wherein the Supreme Court reversed a circuit court for instructing the jury that a physician “was
not liable for damages resulting from his honest mistake or a bona fide error in judgment.” The
Supreme Court reversed the circuit court because it is not the physician’s good faith that dictates
what the applicable standard of care should be. Id. at 385. Burch contends that the word
“efforts” implies “an honest or excusable mistake.” Burch’s argument stretches the language of
Instruction 19 too far. Unlike the instruction in Teh Len Chu, Instruction 19 does not suggest
that efforts made by the physician absolve the physician of liability if they deviate from the
standard of care; instead, Instruction 19 informs the jury that the lack of a good outcome,
standing alone, does not prove negligence.1
Finally, the mere fact that a jury instruction is cumulative does not necessarily merit
reversal. Though there are many instances of our Court and the Virginia Supreme Court
affirming circuit courts for refusing cumulative instructions, Burch has not pointed to a single
instance of a Virginia appellate court reversing a circuit court for giving a cumulative instruction
that is otherwise proper. The reason, of course, is that we presume that the jury follows the
instructions as given and any error in giving a correct though cumulative instruction would
necessarily be harmless. See Gilliam v. Immel, 293 Va. 18, 26 (2017).
Accordingly, because the circuit court has broad discretion in fashioning jury
instructions, and because the jury was fully and fairly instructed on the law and no instructions
tended to mislead the jury, the circuit court did not err in its rulings on the “empty chair” or
“mere happening” instructions.
1
We also find persuasive our Supreme Court’s decision in Chapple-Brooks v. Nguyen,
No. 161812, slip op. at 6 (Va. Dec. 28, 2017) (order), where the Court held that the language of
Instruction 19 was not “argumentative and did not have a tendency to mislead or confuse the
jury.”
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II. Dr. Lavingia’s Testimony
Burch also assigns error to the circuit court’s rulings permitting Dr. Lavingia to testify to the
possibility that Ison would have suffered a complication from a thoracic aortic repair surgery and
prohibiting Burch from cross-examining Dr. Lavingia on standard of care questions.
First, Burch argues on appeal that Dr. Lavingia should not have been permitted to testify as
to the “possibility” that Ison would have suffered a complication from an aneurysm repair surgery.
Burch cites Fairfax Hospital System, Inc. v. Curtis, 249 Va. 531 (1995), in support of this argument.
In Curtis, the Supreme Court prohibited a doctor from testifying that there was “a possibility” that
certain non-negligent factors could have contributed to the decedent’s death. Id. at 536. The Court
reasoned that an expert opinion must be given to a reasonable degree of medical probability in order
to not be speculative and that the expert in that case could not do so but could only speak to
“possibilities.” Id. In contrast, Dr. Lavingia’s testimony in this case was not that the possible risk
of complications could have caused Ison’s death regardless of whether the surgery took place, but
that, to reasonable degree of medical probability, these risks of complications meant that a vascular
doctor would not have operated on Ison at all in the first place. This testimony is not speculative,
and the circuit court did not err in overruling Burch’s objections.
Second, Burch argues that the circuit court erred in foreclosing cross examination of
Dr. Lavingia. This assignment of error is waived because Burch failed to proffer what the expected
testimony would be.
Burch sought to cross-examine Sensenig’s causation expert, Dr. Lavingia, on certain facts
that Burch believed would demonstrate that Ison was displaying classic symptoms of a symptomatic
aortic aneurysm that would have led to surgery. Specifically, Burch sought to ask the following
questions: “Doctor, as a vascular surgeon, . . . if the patient had come in with 10 out of 10 pain as
opposed to 4 out of 10 pain, is that a fact that you would want to know about a patient with a known
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thoracic aortic aneurysm?” Second, “Doctor, . . . Would it be your expectation that a vascular
surgeon would know that chest or back pain in the presence of an enlarged thoracic aorta is a
predictor of aortic rupture?” When the circuit court sustained Sensenig’s scope objection to both
questions, Burch did not proffer what the expected answer to the questions would be. As noted
above, a proffer must be made in order for this Court to evaluate whether the circuit court
committed prejudicial error. The record is completely devoid of what Dr. Lavingia’s response to
these questions would have been.
Because Burch did not proffer what the excluded testimony would have been, this court has
no “basis for adjudication” of Burch’s assignment of error, and we affirm the ruling of the circuit
court. Whittaker v. Commonwealth, 217 Va. 966, 968 (1977).
III. Raw Statistical Data
Finally, Burch argues that the circuit court erred in excluding certain “raw statistical
evidence.” We review the circuit court’s decision to exclude or admit evidence for an abuse of
discretion. “Only when reasonable jurists could not differ can we say an abuse of discretion has
occurred.” Thomas v. Commonwealth, 44 Va. App. 741, 753, adopted on reh’g en banc, 45
Va. App. 811 (2005).
Evidence is relevant if it has “any tendency to make the existence of any fact in issue more
probable or less probable than it would be without the evidence.” Va. R. Evid. 2:402. Additionally,
relevant evidence may be excluded if “the probative value of the evidence is substantially
outweighed by . . . its likelihood of confusing or misleading the trier of fact.” Va. R. Evid. 2:403.
Raw statistical data, standing alone and without further context, adds minimal probative value and
carries a high risk of confusion of, or misuse by, the jury.2 The circuit court ruled that it only
2
As Mark Twain wrote, “There are three kinds of lies: lies, damned lies, and statistics.”
Mark Twain, Chapters from My Autobiography (1906). Without context, raw statistics can be
accurate, though misleading. For example, the average adult has one testicle.
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excluded raw statistical data, not “other statements from an article that also contains raw statistical
data,” nor “the literature itself.” Without any context or connection to the case at hand, statistics add
little, if any, probative value. See Sanitary Grocery Co. v. Steinbrecher, 183 Va. 495, 499 (1945)
(holding that evidence that 1,000 customers per day visited grocery store without injury was
inadmissible because it was misleading and not probative). We cannot say that the circuit court’s
exclusion of the raw statistical data was unreasonable, and we therefore affirm the ruling of the
circuit court.
CONCLUSION
Given the circuit court’s broad discretion in fashioning jury instructions, the circuit court did
not err in refusing Burch’s cumulative empty chair instruction as the legal principle of multiple
proximate causes was already detailed by the other instructions. Additionally, the circuit court did
not err in granting Sensenig’s mere happening instructions as they correctly stated the law, and the
jury could not have been misled by the instructions. Furthermore, the circuit court did not err in
permitting Dr. Lavingia to testify to the risk of complications as it was not speculative for the
inference that, even assuming Sensenig’s negligence, the surgery would not have occurred. Burch
procedurally defaulted her assignment of error related to the exclusion of certain cross-examination
of Dr. Lavingia by failing to include a proffer of what she expected Dr. Lavingia’s testimony would
be. Finally, the circuit court did not err in excluding “raw statistical data” because such data,
standing alone, is of minimal probative value. Accordingly, we affirm the judgment of the circuit
court.3
Affirmed.
Because we affirm the circuit court, we do not reach Sensenig’s cross-assignment of
3
error relating to the circuit court’s jury instruction on Code § 8.01-397.
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