COURT OF APPEALS OF VIRGINIA
Present: Judges Friedman, Frucci and Senior Judge Humphreys UNPUBLISHED
Argued at Fredericksburg, Virginia
PAUL N. MULLIS MEMORANDUM OPINION* BY v. Record No. 1219-23-4 JUDGE ROBERT J. HUMPHREYS AUGUST 13, 2024 RUSSELL EDWARD MCDOW, JR., MD, ET AL.
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY James E. Plowman, Jr., Judge
James P. Campbell (Matthew L. Clark; Campbell Flannery, PC, on briefs), for appellant.
Noelle Quam (C.J. Steuart Thomas, III; TimberlakeSmith, on brief), for appellees.
Paul N. Mullis appeals the final order dismissing his medical malpractice suit against
Dr. Russell E. McDow, Jr., and Loudoun Medical Group, P.C., following a jury defense verdict. He
argues the circuit court erred in overruling his objections to expert testimony, in denying his motion
for summary judgment, and in refusing his offered jury instruction.
BACKGROUND1
Dr. Satinder Gill, a gastroenterologist, started treating Mullis in 2008 for multiple
symptoms including abdominal pain, vomiting, and blood in the stool. Mullis suffered from
hemochromatosis, a liver disease, for which he also sought treatment from a hematologist, as
well as diabetes and fatty liver disease. Mullis’s abdominal pain and vomiting would occur after
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 “In reviewing the evidence presented at trial, we view it ‘in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences.’” Pergolizzi v. Bowman, 76 Va. App. 310, 317 n.1 (2022) (quoting Starr v. Starr, 70 Va. App. 486, 488 (2019)). he ate meals. In January of 2016, Mullis was hospitalized for those symptoms as well as
possible pancreatitis. Dr. Gill suspected possible gallbladder dyskinesia, a condition in which
the gallbladder fails to digest fats and proteins properly, and ordered a radiological scan of
Mullis’s gallbladder. The scan showed an “extremely high” “ejection fraction” of 91%, which
indicated the gallbladder either “squeezed” too slowly or too quickly. Dr. Gill concluded that
Mullis had a diseased or “hyperkinetic” gallbladder. Dr. Gill spoke with Mullis about the
possibility of corrective surgery and referred him to Dr. McDow, a general surgeon. Dr. Gill
testified that the discussion for surgery was based on the failure of other methods to treat
Mullis’s symptoms and the hope that removing his “hyperkinetic” gallbladder would “solve the
problem.” Dr. Gill also testified that performing an exploratory liver biopsy during the
gallbladder procedure was reasonable because Mullis also suffered from liver issues and the
surgeon would already be in that area during the gallbladder surgery.
Dr. McDow testified that he recalled Mullis generally but did not recall most of his
interactions with Mullis or his treatment of Mullis in April of 2016.2 Dr. McDow could not
recall anything about their office meeting, but did remember discussing Mullis’s symptoms and
care just before surgery. Dr. McDow otherwise relied on the medical records he reviewed and
his operation notes. After reviewing his medical records indicating the symptoms he noted and
the radiological scan, Dr. McDow concluded that Mullis suffered from gallbladder hyperkinesia.
The cause of that issue was unknown, but Dr. McDow testified that when someone suffers with
gallbladder ejection fractions, “the vast majority of them get better once their gallbladder’s
removed.” Dr. McDow based this on his experience, literature, and case reports. He testified
that over his career he removed an estimated 2,000 gallbladders.
2 Dr. McDow’s trial testimony was taken by deposition in July of 2020. -2- Dr. McDow used a “Da Vinci” surgical device to robotically remove Mullis’s gallbladder
in April of 2016. During the procedure, Dr. McDow also performed a liver biopsy, a “common”
surgery for patients with liver diseases who are already undergoing surgical treatment in that area
of the body. When asked if he recalled speaking with Mullis about the liver biopsy, Dr. McDow
testified that “[i]t would have been discussed,” but did not recall the specific discussion. He
testified that comprehensive discussion of surgical treatments would take place during the office
meeting, followed by a pre-surgical conversation and informed consent form. Mullis signed an
informed consent form that stated he understood the potential benefits, outcomes, risks,
complications, and alternatives, but the lined spaces to fill in those specific details were blank.
Dr. McDow’s post-surgery record stated that during the initial office visit, they discussed the
“procedure, potential risks, hazards, complications, and expectations.” It indicated that although
Mullis previously refused a liver biopsy procedure, he “was willing to undergo this procedure
during the course of his robotic” surgery.
Post-surgery, Mullis suffered from a liver bile leak, a known risk from a liver biopsy.
Mullis testified that post-surgery, when he attempted to sit up, he felt intense pain all over his
body. He continued to feel significant pain as they treated the bile leak, even after taking pain
medication. He was bedridden for a period of time, and alleged he continued to experience pain
at his March 2023 trial.
Mullis testified that in their office meeting, Dr. McDow stated that after speaking with
Dr. Gill, they thought the next step to solve Mullis’s abdominal issues was to remove the
gallbladder. Dr. McDow described the procedure as a quick, robotic surgery. He also testified
that Dr. McDow told him that he would perform a liver biopsy while performing the gallbladder
surgery. Mullis asserted that neither Dr. Gill nor Dr. McDow discussed any problems shown on
the radiological scan of his gallbladder or the diagnosis of hyperkinesia. He testified that had
-3- they shared these reasons for the surgery, he would have refused the surgery as unwarranted. He
also claimed that Dr. McDow did not discuss any alternatives or risks of either procedure,
including the possibility of a bile leak, and that if Dr. McDow had done so, he would have
refused the biopsy. Mullis testified that before the surgery, a nurse had him sign or initial a
series of documents, none of which were explained, including the informed consent form; Mullis
said that before the procedure Dr. McDow stopped by to ask him how he was feeling without any
substantive discussion.
On cross-examination, Mullis admitted that in a prior deposition, he claimed to have no
memory of seeing Dr. McDow the day of surgery. He also admitted that Dr. Gill tried a series of
treatments to resolve his symptoms without success. He also agreed that Dr. Gill explained that
there was a problem with his gallbladder. While at first he claimed that an assistant gave him
Dr. McDow’s number, when confronted with his deposition statement he then agreed that he
spoke to Dr. Gill about Dr. McDow and that Dr. Gill provided Dr. McDow’s contact
information. When he denied that Dr. McDow discussed the risks of a liver biopsy, he was
confronted with his prior deposition and then agreed it “appear[ed]” that Dr. McDow discussed
the risks of a liver biopsy. When further confronted with his inconsistent testimony on this issue,
he conceded that his recollection was better during his deposition. Mullis also conceded that
while hospitalized for symptoms before his surgery, records indicated that Dr. McDow visited
and evaluated him, but claimed he had no recollection of that meeting. Then after denying he
had a chance to review the consent form, he was confronted with his deposition testimony that he
was “sure [he] was” given that opportunity. Mullis also discussed a stroke he suffered in 2020
that impacted his memory as an explanation for some of his inconsistent deposition testimony.
Mullis filed a medical malpractice suit against Dr. McDow and Loudoun Medical Group,
P.C., for performing the gallbladder surgery and liver biopsy without sufficient cause and/or
-4- informed consent. Dr. McDow and Loudoun Medical Group, P.C., denied the allegations. At
trial, along with the evidence outlined supra, both parties presented experts to testify on the
issues of whether the surgical procedures were justified and if Dr. McDow met the standard of
care for informed consent.
Dr. Jerge testified for Mullis as an expert general surgeon. She testified that the medical
records contained no evidence that Dr. McDow satisfied the standard of care for gaining
informed consent. She also opined that there was insufficient evidence that Mullis would benefit
from gallbladder surgery and doing so violated the standard of care. She reviewed the
requirements to diagnose a patient with hyperkinesia and determined that Mullis did not fit that
criterion. Dr. Jerge later testified that hyperkinesia is an “exquisitely rare diagnosis.” She
opined that performing a liver biopsy also violated the standard of care because there was no
indication that doing so would change his manner of treatment or care.3
Dr. McDow asked Dr. Jerge, during cross-examination if she agreed that Dr. Gill had
concluded that a liver biopsy would be “smart and judicious” based on Dr. Gill’s deposition
testimony. Mullis objected on the grounds that Dr. McDow was attempting to improperly
“backdoor” an expert opinion into evidence. After a lengthy sidebar discussion, Mullis withdrew
his objection.4 Dr. Jerge then agreed that Dr. Gill opined in his deposition that a liver biopsy was
“smart” and “judicious,” even though she disagreed with that conclusion.
3 Mullis called Dr. Hofmeister, who testified that there was insufficient cause to perform a liver biopsy and doing so violated the standard of care. Dr. Tenner also testified for Mullis and opined that there was insufficient reason to perform a liver biopsy. 4 The withdrawal appeared to involve trial strategy. Mullis confirmed that by asking if Dr. McDow was “opening the door on the rest of the deposition.” After the circuit court confirmed “of course,” Mullis formally withdrew his objection and noted, “I’ll be permitted to -- they’ve opened the door on what Dr. Gill actually said.” -5- Dr. Tenner, a gastroenterologist, also testified for Mullis and opined that there was
insufficient reason to perform a liver biopsy. Dr. Tenner stated that hyperkinesia is not a
diagnosis recognized by the medical community, but that he would not “ignore the fact that there
are [hyperkinesia] cases in literature”; he described the condition as “very, very rare.”
Dr. Russo, a liver specialist, testified for Dr. McDow. He opined that the decision to
perform a liver biopsy was supported by the risk of possible cirrhosis based on Mullis’s liver
diseases. Dr. Johnson, a gastroenterologist, also testified that a liver biopsy was appropriate.
Dr. McDow provided a pretrial designation of medical literature under Code § 8.01-401.1
that listed 13 medical articles related to gallbladder issues and biliary hyperkinesia. Before
Dr. McDow called Dr. Kercher, a general surgeon, to testify as to the diagnosis of hyperkinesia,
Mullis objected on the grounds that three of those articles were too speculative to provide
foundation for an expert’s opinion. He argued that a hyperkinesia diagnosis was not accepted in
the medical community and that Dr. Kercher should be prevented from testifying to such.
Overruling Mullis’s objection, the circuit court ruled that the competing diagnosis theories
between the experts was a factual matter for the jury to decide and that any concerns about the
medical literature were matters for cross-examination. No statements from the objected-to
medical literature were read into evidence.
Dr. Kercher testified that Dr. McDow satisfied the standard of care in performing both
the gallbladder surgery and the liver biopsy, as well as obtaining informed consent for those
procedures. He based that opinion on Mullis’s long history of symptoms, the unsuccessful
treatments thus far, and the radiological scan. He testified that as a general surgeon he often
used these procedures in similar circumstances. He based that opinion on the testimony
regarding Mullis’s and Dr. McDow’s initial office meeting, the post-surgery operative note, and
the informed consent form.
-6- When Dr. McDow called Dr. Gill to testify as the final witness, Mullis argued that
Dr. Gill should not be permitted to testify that a liver biopsy “was judicious or smart.” The
circuit court overruled the objection, finding the issue moot because Dr. Jerge had already
testified that Dr. Gill believed the biopsy was “judicious or smart” after Mullis withdrew his
objection during her testimony. Dr. Gill then testified to his treatment of Mullis and his opinions
on the reasonableness of the surgeries that Dr. McDow performed.
At the close of Dr. McDow’s evidence, Mullis moved for summary judgment on the issue
of informed consent. He argued that the evidence was “unrebutted” that there was no
conversation between Dr. McDow and Mullis and that such a conversation was needed to
establish informed consent. Dr. McDow argued that Mullis signed a consent form, that a
post-operative note from Dr. McDow evidenced a pre-surgery conversation, and that an expert
witness testified that Dr. McDow complied with the standard of care as to informed consent.
The circuit court found that there was sufficient evidence of a dispute for a jury to make the
determination and denied the motion.
Mullis requested a modified jury finding instruction that explicitly laid out all four
theories of negligence he argued to the jury: informed consent as to both procedures, and medical
malpractice as to both procedures.5 Dr. McDow requested the model jury instruction that tasked
the jury to determine if Dr. McDow was negligent, whether that was a proximate cause of injury,
and directed the jury to find for the defendant if Mullis failed to prove either or both elements.
The circuit court opted for the model instruction.
The jury returned a verdict in favor of Dr. McDow. Mullis moved to set aside the verdict
and argued that the circuit court erred: 1) by not granting summary judgment on the informed
consent issue because a signature on a generalized consent form is insufficient as a matter of law;
5 Mullis did not submit a proposed instruction comporting with this request. -7- 2) in permitting Dr. Gill to offer his “judicious and smart” expert opinion; 3) by refusing to admit
Dr. Gill’s deposition in Mullis’s rebuttal case; 4) in admitting testimony related to biliary
hyperkinesia when several of the articles were speculative and outside accepted medical practice;
and 5) by denying Mullis’s motion in limine on the informed consent expert opinion. On June
16, 2023, the circuit court entered a final order dismissing the case with prejudice based on the
jury’s verdict. The circuit court entered a second order on June 30, 2023, denying the motion to
set aside the verdict. This appeal followed.
ANALYSIS
I. Informed Consent.
A. Dr. Kercher’s Informed Consent Opinion
In his first assignment of error, Mullis argues that the circuit court erred in permitting
Dr. Kercher to opine on the issue of informed consent without an adequate foundation. Mullis filed
a pretrial motion in limine to prevent Dr. Kercher from testifying on the issue of informed
consent; Mullis argued that Dr. Kercher lacked sufficient foundation and that the expert
disclosure was not sufficient. The circuit court denied the motion without prejudice “for the
reasons stated on the record.”6 Mullis did not subsequently object to Dr. Kercher’s opinions on
informed consent at trial.
“No ruling of the trial court . . . will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of the ruling, except for good cause
shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “Not just any objection
will do. It must be both specific and timely—so that the trial judge would know the particular
point being made in time to do something about it.” Hogle v. Commonwealth, 75 Va. App. 743,
6 The circuit court’s findings are not part of the record; Dr. McDow asserted in brief that the circuit court determined that the issue of foundation could be argued at trial. -8- 755 (2022) (quoting Bethea v. Commonwealth, 297 Va. 730, 743 (2019)). “If a party fails to
timely and specifically object, he waives his argument on appeal.” Id. “[T]he Court will not
apply the exceptions” to Rule 5A:18 sua sponte. Id. at 756.
Mullis relies upon his pretrial motion and the circuit court’s corresponding order to assert
his preservation of this issue. But he failed to provide a transcript or statement of facts reflecting
the circuit court’s findings at the hearing and the reasons for dismissing his pretrial motions
“without prejudice.” “[O]n appeal the judgment of the lower court is presumed to be correct and
the burden is on the appellant to present to us a sufficient record from which we can determine
whether the lower court has erred in the respect complained of.” Smith v. Commonwealth, 16
Va. App. 630, 635 (1993) (quoting Justis v. Young, 202 Va. 631, 632 (1961)). “If the appellant
fails to do this, the judgment will be affirmed.” Id. (quoting Justis, 202 Va. at 632); see also
Rule 5A:8(b)(4)(ii) (If the appellant fails to “ensure that the record contains transcripts or a
written statement of facts necessary to permit resolution of appellate issues, any assignments of
error affected by such omission shall not be considered.”). Thus, with no record to determine
what the circuit court dismissed without prejudice and why the circuit court made that decision,
we have an insufficient record for appellate review of this issue.
Mullis argues that under Code § 8.01-384, he was not required to object after making his
motion in limine to preserve his argument. While it is true that a party need not continually
object, a party must obtain a ruling on an issue to preserve appellate review. Fisher v.
Commonwealth, 16 Va. App. 447, 454 (1993); see also Taylor v. Commonwealth, 208 Va. 316,
324 (1967) (assignment of error waived on appeal where the trial court did not rule on
defendant’s objection, and defendant “did not insist that the court rule” on his objection);
Williams v. Commonwealth, 57 Va. App. 341, 347 (2010) (appellant waived his assignment of
error on appeal because he did not obtain a ruling from the trial court on his pretrial motion to
-9- dismiss). Assuming without deciding that the motion in limine was sufficient to place the court
on notice that he objected to Dr. Kercher’s testimony, the sparse record before us is insufficient
to determine if the circuit court made such a ruling on the merits of his motion, or instead denied
it only as premature with the expectation that Mullis would raise it at trial when the evidence was
presented. With no record of the pretrial hearing, an order that only dismisses “without
prejudice” for reasons stated on that missing record, and no objection at trial to the admission of
the evidence, there is no circuit court decision on the foundation of Dr. Kercher’s opinion for this
Court to properly review.
B. Summary Judgment on Informed Consent
In his second assignment of error, Mullis asserts that the circuit court erred in denying his
motion for summary judgment on the issue of informed consent. We disagree.
“[W]e review the record applying the same standard a trial court must adopt in reviewing
a motion for summary judgment, accepting as true those inferences from the facts that are most
favorable to the nonmoving party, unless the inferences are forced, strained, or contrary to
reason.” Fultz v. Delhaize Am., Inc., 278 Va. 84, 88 (2009). A motion for summary judgment
should only be granted “when there are no material facts genuinely in dispute,” and not when
“the evidence is conflicting on a material point or if reasonable persons may draw different
conclusions from the evidence.” Id. The determination on whether “genuinely disputed material
facts exist and its application of law to the facts present issues of law subject to de novo review.”
Shifflett v. Latitude Props., Inc., 294 Va. 476, 480 (2017) (quoting Mount Aldie, LLC v. Land Tr.
of Va., Inc., 293 Va. 190, 196-97 (2017)).
“To succeed on an informed consent claim, the plaintiff must establish that the physician
breached the standard of care by failing to disclose the material risks associated with the
treatment or procedure, or the existence of alternatives if there are any[.]” Pergolizzi v. Bowman,
- 10 - 76 Va. App. 310, 323 (2022) (quoting Allison v. Brown, 293 Va. 617, 628-29 (2017)). “Virginia
courts measure that standard of care by the ‘degree of skill and diligence exercised by a
reasonably prudent practitioner in the same field of practice or specialty in Virginia.’” Id. at 324
(quoting Tashman v. Gibbs, 263 Va. 65, 73 (2002)). A plaintiff proves this claim by first
establishing the standard of care through expert testimony, then establishing through lay
testimony that the physician failed to disclose necessary information and that the patient would
not have agreed to the procedure if that information had been revealed. Id. Thus, if any of these
facts are “genuinely disputed,” summary judgment should not be granted. Shifflett, 294 Va. at
480 (quoting Mount Aldie, LLC, 293 Va. at 196-97).
The evidence of informed consent was disputed in this case. Although, years later,
Dr. McDow could not recall the specific meeting with Mullis, he testified that as a matter of
practice he provides his patients with a comprehensive discussion of the procedures. His
post-operative note documented that during that meeting they discussed the “procedure, potential
risks, hazards, complications, and expectations.” Mullis claimed that no such conversation took
place, but he was impeached with his inconsistent deposition testimony and admitted to having
memory issues. Mullis then signed an informed consent form that stated he understood the
potential benefits, outcomes, risks, complications, and alternatives. He denied at trial having the
opportunity to read and understand that document before signing it, but this testimony flatly
contradicted his deposition testimony that he was “sure [he] was” given that opportunity. Both
parties presented experts that discussed the standard of care for informed consent and whether
the medical records and deposition testimonies supported such a finding. This issue was in
genuine dispute and was therefore ripe for the jury to consider. Thus, the circuit court did not err
in denying the motion for summary judgment.
- 11 - II. Dr. Kercher’s Hyperkinesia Opinion
Mullis next argues that the circuit court erred in allowing Dr. Kercher to opine on
hyperkinesia because the supporting scientific documentation was “unreliable.”
We review a trial court’s “ruling on the admissibility of testimony, whether expert or lay,
. . . for an abuse of the court’s discretion.” Emerald Point, LLC v. Hawkins, 294 Va. 544, 553
(2017). An expert witness “may give testimony and render an opinion or draw inferences from
facts, circumstances or data made known to or perceived by such witness at or before the hearing
or trial during which he is called upon to testify.” Code § 8.01-401.1; accord Va. R. Evid.
2:703(a). “Expert testimony generally is admissible in civil cases if it will aid the trier of fact in
understanding the evidence.” Keesee v. Donigan, 259 Va. 157, 161 (2000). “When scientific
evidence is offered, the court must make a threshold finding of fact with respect to the reliability
of the scientific method offered[.]” Spencer v. Commonwealth, 240 Va. 78, 97 (1990). “Wide
discretion must be vested in the trial court to determine . . . whether the evidence is so inherently
unreliable that a lay jury must be shielded from it, or whether it is of such character that the jury
may safely be left to determine credibility for itself.” Id. at 98. “In making the threshold finding
of fact, the court must usually rely on expert testimony. If there is a conflict, and the trial court’s
finding is supported by credible evidence, it will not be disturbed on appeal.” Id. at 97.
We find no error in the circuit court’s denial of Mullis’s objection. At the time he made
his objection, his own witness, Dr. Jerge, had already testified that hyperkinesia is an
“exquisitely rare diagnosis.” When she reviewed the appropriateness of that claim, she did not
opine that hyperkinesia was a “junk” science. Instead, she reviewed the criteria of hyperkinesia
and compared that criterion to Mullis’s symptoms and condition, ultimately opining that Mullis
simply did not have that condition. Dr. Tenner, another of Mullis’s own experts, described
hyperkinesia as “unrecognized,” but then opined that he would not “ignore the fact that there are
- 12 - [hyperkinesia] cases in literature” and described it as “very, very rare.” Thus, Mullis’s own
experts, after reviewing the medical science for hyperkinesia, appeared to recognize it as an
extremely rare, but real, condition.
Mullis argued at trial and in brief that three pieces of medical literature were too
speculative and should be excluded at trial. But no portions of those articles were read into
evidence. Dr. Kercher relied on his own training and experience in testifying about hyperkinesia
as an expert surgeon, and Dr. Gill testified similarly as an expert gastroenterologist. The circuit
court does not properly exclude scientific evidence for being “unrecognized,” but rather for
being “inherently unreliable.” Spencer, 240 Va. at 98. Mullis presented no expert testimony to
support that finding, and his own experts appeared to trust the medical literature on hyperkinesia
to conclude that it is a very rare condition.
III. Dr. Gill’s Liver Biopsy Opinion
Mullis next asserts that the circuit court erred in permitting Dr. Gill to testify that a liver
biopsy was “judicious” or “smart” because it was not properly designated in Dr. Gill’s expert
designation.
“[H]armless-error review [is] required in all cases.” Moore v. Joe, 76 Va. App. 509, 516
(2023) (second alteration in original) (quoting Spruill v. Garcia, 298 Va. 120, 127 (2019)).
“When it plainly appears from the record and the evidence . . . that the parties have had a fair
trial on the merits and substantial justice has been reached, no judgment shall be arrested or
reversed.” Id. at 516-17 (alteration in original) (quoting Code § 8.01-678). “Thus, ‘[a]ny error
that does not implicate the trial court’s subject matter jurisdiction is subject to harmless-error
analysis.’” Id. at 517 (alteration in original) (quoting Spruill, 298 Va. at 127).
We need not reach the merits of whether Dr. Gill’s opinion on the liver biopsy was
properly designated, because any such error would be harmless as a matter of law. At the time
- 13 - that Dr. Gill testified to this opinion, Mullis’s expert, Dr. Jerge, had already testified that Dr. Gill
concluded that a liver biopsy was “judicious” or “smart.” Mullis had originally objected to this
evidence coming in through Dr. Jerge, but then chose to withdraw that objection, seemingly for
trial strategy purposes. Thus, evidence of Dr. Gill’s opinion on the liver biopsy was already
admitted without objection and was before the jury. Permitting Dr. Gill to repeat that opinion
was not so prejudicial so as to deny Mullis “a fair trial on the merits.” Id. at 516-17 (quoting
Code § 8.01-678).
IV. Jury Finding Instruction
In his last assignment of error, Mullis contends that the circuit court erred in refusing his
modified jury instruction in lieu of the model instruction on finding negligence.
“A trial court’s decision whether to grant or refuse a proposed jury instruction is
generally subject to appellate review for abuse of discretion.” Howsare v. Commonwealth, 293
Va. 439, 443 (2017). “When we review a trial court’s decision to refuse jury instructions, the
evidence is viewed in the light most favorable to the proponent of the instruction.”
Hancock-Underwood v. Knight, 277 Va. 127, 130 (2009). “A litigant is entitled to jury
instructions supporting his or her theory of the case if sufficient evidence is introduced to support
that theory and if the instructions correctly state the law.” Schlimmer v. Poverty Hunt Club, 268
Va. 74, 78 (2004). “Where other instructions fully and fairly cover the principles of law
governing the case, the trial court does not err in refusing an additional instruction on the same
subject.” Howsare, 293 Va. at 443.
The given instruction required the jury to find for Mullis if he established under his
burden of proof that Dr. McDow was negligent and that Dr. McDow’s negligence was a
proximate cause of injuries to Mullis. The instruction required the jury to find for Dr. McDow if
“Mullis failed to prove either or both of the two elements above.” Mullis does not contend that
- 14 - the model instruction did not “generally accurately state the law.” He instead asserts that he was
entitled to a modified instruction that laid out all four theories of negligence rather than a finding
instruction that simply asked the jury to decide if Dr. McDow was negligent. He suggests that
the jury was improperly led to believe that Mullis only alleged one negligent act against
Dr. McDow.
Mullis’s first point in closing argument was to outline “the four different kinds of
negligence” he alleged against Dr. McDow, and then review the evidence to argue that he met
his burden of proof as to all four theories of negligence. In response, Dr. McDow addressed all
four theories of negligence in requesting a defense verdict. The jury instructions also included
not only general definitions of negligence, but also the duties specific to informed consent, and
the duties that medical providers had in treating their patients. The record does not support a
finding that the jury was in any way misled by the finding jury instruction given, or that
providing a modified instruction was necessary for the jury to properly consider the case and the
evidence. The jury instructions, including the model finding instruction given to the jury,
accurately stated the law, framed the issues, and conformed to the evidence presented and
Mullis’s theories of recovery. We therefore conclude that the circuit court did not abuse its
discretion in giving the model finding instruction.7
CONCLUSION
For the foregoing reasons, we affirm the circuit court’s judgment.
Affirmed.
7 Moreover, since Mullis did not submit a proposed instruction, we have no way of determining whether it would have correctly stated the law. - 15 -