PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, McClanahan and Powell, JJ., and Russell, S.J.
RICHARD C. WAGONER, JR. OPINION BY v. Record No. 140890 JUSTICE CLEO E. POWELL APRIL 16, 2015 COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Richard C. Wagoner, Jr. (“Wagoner”) appeals the decision of
the Court of Appeals of Virginia affirming his conviction of
felony abuse or neglect of an incapacitated adult in violation
of Code § 18.2–369(B). Wagoner contends that the Court of
Appeals erred in applying the wrong decisional standard in its
review of the trial court’s ruling on a motion to set aside the
verdict, expanding the definition of proximate cause, and
finding that the evidence was sufficient to support his
conviction.
I. BACKGROUND
Joseph Tuggle (“Tuggle”), a 57 year old man with
Parkinson’s Disease and dementia, lived in a residential group
home for men with intellectual disabilities. The group home was
owned by the Claye Corporation, which in turn was owned by
Wagoner. Wagoner also served as president of the Claye
Corporation.
At approximately 7:00 p.m. on the evening of February 8,
2011, Jerome Baker (“Baker”), Tuggle’s caregiver, discovered that Tuggle had soiled himself. Baker assisted Tuggle to the
restroom and sat him on the toilet. Baker then left to retrieve
cleaning supplies and began helping another staff member clean
up. After cleaning for five or six minutes, Baker went to check
on Tuggle. Baker found Tuggle crying for help while lying on
his back in the bathtub with hot water running from the shower.
Baker turned off the water and got Tuggle out of the bathtub.
Baker and another staff member dried Tuggle off and noticed that
his skin was very red. Baker and the other staff member then
took Tuggle into the living room, where they again noticed his
skin was very red and had begun to peel.
At this point, the staff supervisor, Kenny A. Brown
(“Brown”), was contacted. Brown arrived at the group home
around 8:30 p.m. After inspecting Tuggle, he determined that
Tuggle did not need medical attention. Brown also contacted
Tameki Tarpley (“Tarpley”), his co-supervisor, and informed her
about the situation. Without seeing Tuggle, Tarpley called the
emergency room and inquired about treating a burn that “appeared
to be like a sunburn.” Tarpley was told to apply cold
compresses and that she should go to a pharmacy and ask the
pharmacist for further treatment advice. Brown stayed with
Tuggle until 11:00 p.m. and assisted in the treatment of
Tuggle’s burns by placing cold compresses over the affected
areas of skin.
2 Brown returned to the group home at 6:30 a.m. on the
following morning to examine Tuggle’s injuries. Brown found
that the burns appeared “redder.” Brown then contacted Tarpley
and informed her of the nature of Tuggle’s developing injuries
and informed her that Tuggle needed to go the emergency room to
be checked out. Tarpley contacted another staff member to bring
a company van to the group home to transport Tuggle to the
hospital.
Cynthia Epley (“Epley”), a director of Claye Corporation,
called Tarpley for her regular “check-in” and was informed of
Tuggle’s accident. Tarpley told Epley that a company van was en
route to take Tuggle to the hospital. Epley then called Wagoner
to inform him about the incident and that Tuggle was being taken
to the hospital.
At around 7:15 a.m., Tuggle was placed in the company van
to be taken to the hospital. While Tuggle was en route to the
hospital, Wagoner informed Epley that he wanted to see Tuggle
before he was taken to the hospital. Epley relayed the request
to Tarpley who, in turn, relayed the request to the staff member
driving the company van. About three minutes later, Tuggle was
returned to the group home.
After the van returned, Tarpley went to a pharmacy.
Tarpley asked the pharmacist for instructions in treating a
sunburn. According to Tarpley, the pharmacist instructed her to
3 use drainage strips and cold compresses and to apply Neosporin,
an antibiotic cream.
Epley arrived at the group home at around the same time
that Tarpley returned. Shortly thereafter, Wagoner arrived. At
the time, Tuggle was sitting in a wheel chair in the living
room. After the staff explained what had happened, Wagoner
asked Tuggle how he was doing. Baker then removed a sheet that
was covering Tuggle and lifted Tuggle’s t-shirt so Wagoner could
see the burns. According to Baker, Tuggle’s skin appeared to be
really red and had begun to peel away. Wagoner inspected
Tuggle’s injuries without comment.
Wagoner told Epley that Tuggle should be treated “one on
one” at the group home. Wagoner then left the facility. Epley
informed Tarpley of Wagoner’s decision and advised the staff to
begin treatment, which consisted of cold compresses, Neosporin,
Tylenol, and Gatorade.
Over the next nine days, the staff noticed the color of
Tuggle’s injuries changed from dark red to yellow. The staff
also noted oozing blood and pus emanating from the wounds. On
the morning of February 18, 2011, Tuggle was found dead in his
bed.
Wagoner was subsequently charged with abuse or neglect of
an incapacitated adult resulting in death in violation of Code
§ 18.2-369(B).
4 At trial, Dr. Gayle Suzuki (“Dr. Suzuki”), a pathologist
and the medical examiner who performed the autopsy on Tuggle’s
body testified that Tuggle had suffered second and third degree
burns over 30% of his body. She explained that Tuggle’s death
was caused by “sepsis and pneumonia from the thermal injuries
from immersion in scalding water.” She noted that the bacteria
that caused the sepsis was consistent with bacteria normally
found on the skin.
Dr. Kevin Whaley (“Dr. Whaley”), an Assistant Chief Medical
Examiner for the Commonwealth, testified as an expert on the
classification, diagnosis, and treatment of burns. Dr. Whaley
testified that second and third degree burns over 30% of the
body would require automatic admission to a burn unit. He went
on to explain that someone in Tuggle's condition would initially
require fluid resuscitation followed by treatment to avoid
infection. The treatment to avoid infection would involve
debriding the skin, 1 application of silver sulfadiazine “to
control bacterial growth,” and changing the bandages regularly.
Dr. Whaley explained that debriding the skin was necessary
because bacteria live underneath the dead skin and then get into
the blood stream and causes sepsis. Dr. Whaley further noted
1 Debriding the skin involves surgical removal of the burned and dead skin.
5 that Neosporin is an ineffective treatment for this condition
and can actually make the injury worse.
After viewing photographs of Tuggle’s burns, Dr. Whaley
opined that Tuggle actually had second and third degree burns
over approximately 18% of his body. According to Dr. Whaley,
given Tuggle’s age and the amount of burns he suffered, Tuggle’s
injuries were 100% fatal if he did not receive the proper
treatment. However, Dr. Whaley further testified that, if he
received the proper treatment, Tuggle only had a 75% chance of
death, meaning a 25% chance of survival.
Dr. Thomas Berry (“Dr. Berry”) testified on behalf of
Wagoner. Like Dr. Whaley, Dr. Berry was received as an expert
on the classification, diagnosis, and treatment of burns. In
Dr. Berry’s opinion, Tuggle suffered burns over 20% of his body.
Dr. Berry testified he would have recommended in home/outpatient
treatment of Tuggle’s burns. Dr. Berry further opined that
Tuggle’s pneumonia was likely rapid onset and “not necessarily
connected with his burns.”
The jury subsequently found Wagoner guilty of felony abuse
or neglect of an incapacitated adult. Wagoner made a motion to
set aside the verdict, arguing, among other things, that the
Commonwealth failed to prove his actions were a proximate cause
of Tuggle’s death because the Commonwealth did not present any
evidence that Tuggle would probably have survived his injuries
6 absent Wagoner’s abuse or neglect. The trial court denied his
motion, finding that the Commonwealth had presented sufficient
evidence of proximate cause, because “a twenty-five percent
chance of survival represents a substantial possibility of
survival, and the jury was entitled to find that [Wagoner’s]
abuse or neglect of Tuggle was a proximate cause of his death.”
Wagoner was sentenced to five years’ incarceration with five
years suspended for a period of 10 years.
Wagoner appealed his conviction to the Court of Appeals.
In the Court of Appeals, Wagoner argued that the trial court
applied the wrong decisional standard in ruling on his motion to
set aside the verdict. According to Wagoner, the “substantial
possibility of survival” standard used by the trial court only
applies to motions to strike, not to motions to set aside the
verdict. He further argued that the proper standard required
the Commonwealth to prove that Tuggle probably would have
survived his injuries but for Wagoner’s actions.
In a published decision, a divided panel of the Court of
Appeals affirmed Wagoner’s conviction. Wagoner v. Commonwealth,
63 Va. App. 229, 756 S.E.2d 165 (2014). The majority held that
the “substantial possibility of survival” decisional standard
used by the trial court applies to both motions to strike and
motions to set aside the verdict. Id. at 247, 756 S.E.2d at
174. The majority further determined that the “substantial
7 possibility of survival” standard does not equate “to a
‘probability’ of survival and common sense suggests that a
‘substantial possibility’ is somewhat less of a quantification
than a ‘probability.’” Id. at 253, 756 S.E.2d at 177.
The dissent, however, opined that the “substantial
possibility of survival” standard only applies to motions to
strike and, therefore, the trial court erred. The dissent went
on to agree with Wagoner, stating that to survive a motion to
set aside the verdict, the Commonwealth’s evidence of proximate
cause must demonstrate that Tuggle probably would have survived
his injuries but for Wagoner’s actions. Id. at 265, 756 S.E.2d
at 183.
This appeal follows.
II. ANALYSIS
On appeal, Wagoner argues that the Court of Appeals erred
by approving the trial court’s use of the wrong decisional
standard to address his motion to set aside the verdict,
improperly expanding the definition of proximate cause, and
conviction. We agree with Wagoner that the trial court and the
Court of Appeals erred in ruling on the motion to set aside the
verdict.
In his motion to set aside the verdict, Wagoner asserted
that the loss of a substantial possibility of survival was not
8 the proper standard. He further argued that, under the proper
standard of causation, “the Commonwealth failed to present any
evidence that Mr. Tuggle would probably have lived but for the
Defendant’s alleged abuse or neglect.” In denying his motion,
the trial court relied on our rulings in Blondel v. Hays, 241
Va. 467, 472, 403 S.E.2d 340, 343 (1991), Brown v. Koulizakis,
229 Va. 524, 532, 331 S.E.2d 440, 446 (1985), and Whitfield v.
Whittaker Memorial Hospital, 210 Va. 176, 169 S.E.2d 563 (1969),
to reach the conclusion that “a twenty-five percent chance of
survival represents a substantial possibility of survival, and
the jury was entitled to find that the Defendant’s abuse or
neglect of Tuggle was a proximate cause of his death.” The
Court of Appeals subsequently affirmed the decision of the trial
court on these grounds. In so doing, the trial court and the
Court of Appeals equated the loss of a substantial possibility
of survival with proximate cause.
As both the Court of Appeals and the trial court correctly
observed, the proper standard for deciding a motion to set aside
the verdict is found in Code § 8.01-680.
When a case, civil or criminal, is tried by a jury and a party objects to the judgment or action of the court in granting or refusing to grant a new trial on a motion to set aside the verdict of a jury on the ground that it is contrary to the evidence . . . the judgment of the trial court shall not be set aside unless it appears from the evidence that such judgment
9 is plainly wrong or without evidence to support it.
Id.
Thus, in deciding a motion to set aside the verdict, a
court only looks to whether the jury’s verdict is “plainly wrong
or without evidence to support it.” Wagoner’s motion to set
aside the verdict only challenged the sufficiency of the
evidence regarding the proximate cause of Tuggle’s death.
Therefore, the sole question before the trial court, the Court
of Appeals and this Court is whether there was sufficient
evidence of proximate causation to support the jury’s verdict.
In determining whether the evidence of proximate causation
was sufficient, we look first to the statute at issue in the
present case. Code § 18.2-369(B) states, in relevant part,
Any responsible person who abuses or neglects an incapacitated adult in violation of this section and the abuse or neglect results in the death of the incapacitated adult is guilty of a Class 3 felony.
As the Court of Appeals recognized, neither the Code nor
our jurisprudence addresses the meaning of the phrase “results
in” as used in Code § 18.2-369(B). In analyzing this issue, the
Court of Appeals looked to the United States Supreme Court’s
recent analysis of similar language in Burrage v. United States,
134 S.Ct. 881 (2014). We agree with the Court of Appeals’
analysis on this issue, and adopt its holding that the ordinary
10 meaning of the phrase “results in,” as used in Code § 18.2-
369(B), “imports ‘but for’ causation.” Wagoner, 63 Va. App. at
250, 756 S.E.2d at 176. In other words, the Commonwealth must
prove that the abuse or neglect was a proximate cause of the
death.
“The proximate cause of an event is that act or omission
which, in natural and continuous sequence, unbroken by an
efficient intervening cause, produces that event, and without
which that event would not have occurred.” See Wells v.
Whitaker, 207 Va. 616, 622, 151 S.E.2d 422, 428 (1966) (emphasis
added). “Generally a person is not liable to another unless but
for his negligent act the harm would not have occurred.” Id. 2
The logic employed by the trial court and the Court of
Appeals is based on Blondel, where we stated “if a plaintiff’s
evidence has shown that the defendant’s negligence has destroyed
any substantial possibility of the patient's survival, then
there is sufficient evidence of proximate cause to go to the
jury.” 241 Va. at 473-74, 403 S.E.2d at 344. Although Blondel
2 We further note that the jury in this case was instructed that “[a] proximate cause of a death is a cause that, in natural and continuous sequence, results in death. It is a cause without which the death would not have occurred.” Neither party objected to this jury instruction. Accordingly, this definition of proximate cause is the law of the case, binding on the parties as well as this Court. See Owens-Illinois, Inc. v. Thomas Baker Real Estate, Ltd., 237 Va. 649, 652, 379 S.E.2d 344, 346 (1989).
11 was a medical malpractice case, the trial court and the Court of
Appeals determined that its logic applied to the present case
because “[e]stablished principles of proximate causation are
applicable in both civil and criminal cases.” Brown v.
Commonwealth, 278 Va. 523, 529, 685 S.E.2d 43, 46 (2009).
It is important to recognize, however, that although the
loss of a substantial possibility of survival may be evidence of
proximate cause in a medical malpractice case, 3 it is not itself
a principle of proximate cause. A proximate cause is an act or
omission. See Wells, 207 Va. at 622, 151 S.E.2d at 428. The
loss of a substantial possibility of survival, on the other
hand, is neither an act nor an omission; it is the result of an
act or omission. In other words, the loss of a substantial
possibility of survival is evidence that could support a finding
of causation for the “event.”
Although this Court has used proximate cause in conjunction
with the loss of a substantial possibility of survival in
medical malpractice cases, see, e.g., Poliquin v. Daniels, 254
Va. 51, 57, 486 S.E.2d 530, 534 (1997); Blondel, 241 Va. at 472,
403 S.E.2d at 343; Koulizakis, 229 Va. at 532, 331 S.E.2d at
3 Notably, we have never used the concept of the loss of a substantial possibility of survival as evidence of proximate cause outside the context of medical malpractice cases. Indeed, nothing in this opinion should be read to expand or restrict the use of the loss of a substantial possibility of survival as evidence of proximate cause in such cases.
12 446, the fact remains that they are two distinctly separate
concepts. 4 Indeed, we have clearly recognized this distinction,
as it is evident that we treat the concepts entirely
differently. For example, we have recognized that “the issue of
proximate cause is a question of fact for resolution by a jury,”
Karim v. Grover, 235 Va. 550, 552-53, 369 S.E.2d 185, 186
(1988), whereas the loss of a substantial possibility of
survival is a “decisional standard for the guidance of trial
courts in deciding a motion to strike the evidence.” Blondel,
241 Va. at 473-74, 403 S.E.2d at 344. Additionally, while we
allow juries to be instructed on proximate cause, we expressly
prohibit jury instructions addressing the loss of a substantial
possibility of survival. Id. at 475, 403 S.E.2d at 344.
In the present case, the trial court correctly instructed
the jury as to the definition of proximate cause; in doing so,
it properly made no mention of the loss of a substantial
possibility of survival. Thus, it would be improper for the
trial court to utilize the loss of a substantial possibility of
4 We recognize that, in Blondel, we stated that “a defendant physician’s destruction of any substantial possibility of the patient’s survival is a proximate cause of the patient’s death.” 241 Va. at 472, 403 S.E.2d at 343 (internal quotation marks and emphasis omitted). Although this language would appear to contradict our holding that proximate cause and the loss of a substantial possibility of survival are distinctly separate concepts, when parsed correctly, it is apparent we were referring to the defendant physician’s actions or omissions that resulted in the destruction of the possibility of survival as the proximate cause, not the loss itself.
13 survival as its sole basis for deciding whether, as a matter of
law, the evidence was sufficient to support the verdict. Such
an approach would necessarily result in the trial court
employing a different standard from that properly employed by
the jury. See Jordan v. Commonwealth, 286 Va. 153, 156-57, 747
S.E.2d 799, 800 (2013) (“[T]he reviewing court is not permitted
to substitute its own judgment for that of the trier of fact.”).
Accordingly, the trial court and the Court of Appeals erred in
considering the loss of a substantial possibility of survival as
the basis for deciding the motion set aside the verdict.
Our analysis does not end here, however, because “[w]e do
not hesitate, in a proper case, where the correct conclusion has
been reached but the wrong reason given, to sustain the result
and assign the right ground.” Eason v. Eason, 204 Va. 347, 352,
131 S.E.2d 280, 283 (1963) (collecting cases). Review of a
trial court’s ruling on a motion to set aside the verdict is
particularly ripe for application of the “right result for the
wrong reason” doctrine, as our focus in reviewing a motion to
set aside the verdict is necessarily limited to the facts in the
record and no additional factual presentation is necessary. See
Perry v. Commonwealth, 280 Va. 572, 580, 280 Va. 572, 701 S.E.2d
431, 436 (2010) (“Consideration of the facts in the record and
whether additional factual presentation is necessary to resolve
14 the newly-advanced reason is the proper focus of the application
of the doctrine.”).
As previously noted, in deciding a motion to set aside the
verdict, a court only looks to whether the jury’s verdict is
“plainly wrong or without evidence to support it.” Code § 8.01-
680. In the present case, Wagoner’s motion to set aside the
verdict challenged the sufficiency of the evidence regarding the
proximate cause of Tuggle’s death. Thus, the sole question
before us is whether there was sufficient evidence of proximate
cause to support the jury’s verdict. We find that there was.
In the present case, Dr. Whaley testified at length
regarding the proper treatment of Tuggle’s burns. According to
Dr. Whaley, the proper treatment involved Tuggle’s admission to
a burn unit, fluid resuscitation and debriding the skin.
Notably, Tuggle received none of those forms of treatment.
Instead, Wagoner ordered that Tuggle be treated at the group
home. Despite the deterioration of Tuggle’s condition over nine
days, Wagoner’s direction that Tuggle not be taken to the
hospital never changed.
Dr. Whaley went on to explain that debridement is necessary
because “bacteria love[ dead skin] and live underneath it, and
then get off into [the] blood stream and cause sepsis.” Dr.
Suzuki testified that Tuggle’s death was caused by “sepsis and
pneumonia from the thermal injuries from immersion in scalding
15 water,” because the type of bacteria that caused the sepsis and
pneumonia was “consistent with skin kind of bacteria.” Thus,
there was evidence from which a jury could infer that, had the
dead skin been debrided, Tuggle would not have died of sepsis.
Similarly, as there is evidence that the same bacteria that
caused the sepsis also caused the pneumonia, the jury could have
concluded that proper treatment would have prevented pneumonia
as well.
It is worth noting that the Commonwealth also presented
evidence that the actions taken by Wagoner’s staff made Tuggle’s
injuries worse. Dr. Whaley specifically testified that applying
Neosporin to the burns actually made them worse. Taken
together, there was sufficient evidence from which the jury
could reasonably find that Wagoner’s actions were a proximate
cause of Tuggle’s death.
III. CONCLUSION
For the foregoing reasons, we will affirm the judgment of
the Court of Appeals upholding the conviction rendered by the
trial court.
Affirmed.
JUSTICE McCLANAHAN, concurring.
I concur in the Court’s judgment because, as the majority
ultimately concludes, there was sufficient evidence of proximate
16 causation to support the jury’s verdict. I disagree with the
majority’s holding that the trial court and the Court of Appeals
erred in ruling on the motion to set aside the verdict. 1
In the Court of Appeals, Wagoner argued that the trial
court erred in applying a “decisional standard” that applies
only to motions to strike in ruling on the motion to set aside
the verdict. Rule 3A:15(a) states that “[a]fter the
Commonwealth has rested its case or at the conclusion of all the
evidence, the court on motion of the accused may strike the
Commonwealth’s evidence if the evidence is insufficient as a
matter of law to sustain a conviction.” Rule 3A:15(b) states
that “[i]f the jury returns a verdict of guilty, the court may,
on motion of the accused . . . set aside the verdict . . . if
the evidence is insufficient as a matter of law to sustain a
conviction.” Because the standards are the same, the Court of
Appeals did not err in rejecting Wagoner’s argument that there
is one “decisional standard” that applies to motions to strike
and a different “decisional standard” that applies to motions to
set aside a jury verdict.
1 The majority holds that the trial court and the Court of Appeals reached the right result for the wrong reason. Yet, the trial court denied the motion to set aside the verdict on the ground that there was sufficient evidence of proximate causation to support the jury’s verdict, and the Court of Appeals affirmed the trial court's judgment denying the motion to set aside on the same ground.
17 I also do not believe, as Wagoner contends, that the Court
of Appeals erroneously expanded the law of proximate causation
in ruling on the sufficiency of the evidence. Properly
construing Code § 18.2-369(B) to require proof of “but for”
causation, the Court of Appeals reviewed the evidence and
concluded it was sufficient for the jury to find that Tuggle’s
death would not have occurred but for Wagoner’s failure to seek
professional medical treatment for him. Furthermore, the Court
of Appeals rightly rejected Wagoner’s argument that the
Commonwealth was required to prove that it was more likely than
not Tuggle would have lived with treatment since it would defeat
the purpose of Code § 18.2-369(B) to relieve a defendant of
criminal liability based on evidence that a victim had a less
than fifty-one percent chance of survival. 2
2 I disagree with the majority’s conclusion that the Court of Appeals adopted the concept of a loss of substantial possibility of survival as the standard for reviewing the sufficiency of the evidence of proximate causation. The Court of Appeals discussed the concept of a loss of substantial possibility of survival in response to Wagoner’s argument that a probability of survival was required after reaching its conclusion that the evidence was sufficient to support a finding of proximate causation. Citing this Court’s decision in Blondel v. Hays, 241 Va. 467, 472, 403 S.E.2d 340, 343 (1991), the Court of Appeals reasoned that Wagoner’s position that the Commonwealth must prove a probability of survival was not founded in Virginia law.