RICHMOND, Va. (Legal Newsline) - The family of a priest who died after falling in the hospital will be able to keep a $2 million jury verdict, after the Virginia Supreme Court ruled the trial judge did not err by allowing in testimony about the dead man’s supposed explanation for why he fell.
The Dead Man’s Statute bars uncorroborated testimony from “interested persons” but neither the priest nor two of the men who testified had a financial interest in the case and so the hearsay could be admitted, the Virginia Supreme Court said in a decision supported by the Virginia Trial Lawyer’s Association.
Father Constantine P. Rogakas went to Bon Secours-DePaul Medical Center for an ultrasound to diagnose abdominal pain. He was 86 and walked with a cane, but still drove to his church daily and a hospital employee testified he walked into the ultrasound room unassisted.
Once there, he was told to remove the clothing from his upper body while the sonographer waited outside. He then heard a fall and found the priest in his undershirt on the floor. Before dying, the priest told his wife, two daughters, a fellow priest named Father George Bessinas and his physician Dr. Nabil Tadros that he leaned on a wheeled hospital bed and fell when it rolled away from him.
The priest’s wife sued for wrongful death. At trial, the hospital presented testimony the bed’s wheels were locked and needed to be unlocked to roll the priest to the emergency room. The hospital also tried to present an identical bed to the jury, but the judge rejected that exhibit as potentially prejudicial because it wouldn’t be the exact same bed as was in the room.
The jury awarded the priest’s heirs $2 million and the verdict was upheld on appeal. The Virginia Supreme Court also upheld the verdict in a Jan. 2 opinion by Justice Stephen McCullough.
The plaintiffs argued the Dead Man’s Statute didn’t apply at all because it could only be used to block statements against someone who is dead, not the other way around.
The court declined to answer that question, saying it didn’t matter. Without formally deciding the issue, the court said it would assume the priest’s wife and daughters couldn’t testify about what he said because they had a financial interest in the case. But Father Bessinas and Dr. Tados could testify because they weren’t adverse or interested parties, the court ruled. “Interested party,” under the statute, means someone with a financial interest in the result.
The hospital argued Father Rogakas himself was an interested party whose testimony was barred, but the court rejected that too. Under the wrongful death statute, the lawsuit belongs to his heirs, the court said.
“Father Rogakos provided no testimony that needs to be corroborated,” the court said. “He is not an `interested’ person because, having passed away, the judgment would not benefit him personally.”
The court also acted within its discretion by refusing to allow jurors to see the type of bed involved in the accident. The judge also was justified in allowing the jury to conclude the hospital’s negligence was to blame.
“Taking off a shirt requires the use of both hands,” the court said. “When a person who is unsteady on his feet must release his grip on his cane to take off the shirt, a jury can sensibly infer that there is a heightened danger of a fall, and that that is what most likely occurred.”