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Present:    All the Justices
SOTIRI PONIRAKIS
v.    Record No.  001712                                                 OPINION BY JUSTICE BARBARA MILANO KEENAN
June  8,  2001
DAVID CHOI, M.D.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Stanley P. Klein, Judge
In this appeal of a judgment in favor of a defendant in a
medical malpractice action, we consider whether the trial court
erred in instructing the jury on the defense of contributory
negligence.
Sotiri Ponirakis filed a motion for judgment against Dr. David
K. Choi1  alleging, among other things, that Dr. Choi was negligent in
failing to detect and treat Ponirakis’s lupus nephritis, a kidney
disease.    Ponirakis alleged that this delay in treatment caused him
to suffer kidney failure, and that proper treatment would have
prevented this result.
The following evidence was presented at trial.    In July  1994,
shortly after his graduation from high school, Ponirakis experienced
“flu like” symptoms and noticed that his urine was  “dark colored.”
He went to see his  “primary care” physician, Dr. Paul Salbert, who
ordered certain blood tests and a urine study.    While the results of
the blood tests were  “normal,” the urine study revealed that
Ponirakis had blood and protein in his urine, and Ponirakis




testified that Dr. Salbert informed him of that fact.    Dr. Salbert
also arranged for Ponirakis to have an intravenous pyelogram  (IVP),
an  “x-ray” study of the kidneys, which was performed in October
1994.    Ponirakis testified that the IVP showed that his kidneys were
“normal.”
After the IVP was performed, Ponirakis again saw Dr. Salbert,
who ordered additional blood tests and a second urine study.
Although the blood test results were  “normal,” the second urine
study again revealed that Ponirakis had blood and protein in his
urine.    As a result, in March  1995, Dr. Salbert referred Ponirakis
to a urologist.    Ponirakis saw the urologist and discussed with him
the episodes of blood and protein in his urine.    The urologist
ordered a third urine study that also showed the presence of blood
and protein in Ponirakis’s urine.    The urologist advised Ponirakis
to see Dr. Salbert for a  “follow-up” appointment, and Ponirakis did
so in April  1995.    Ponirakis testified that neither Dr. Salbert nor
the urologist recommended any treatment or additional testing.
Although the results of these urine studies indicated that the
amount of blood and protein in Ponirakis’s urine was "significant,"
the record does not reflect that either Dr. Salbert or the urologist
gave Ponirakis any explanation for these elevated levels of blood
and protein.    When asked what his understanding of the  “problem” was
at that time, Ponirakis testified,  “Just that there was blood in my
1Ponirakis also named additional defendants in his motion for
judgment.    The disposition of the case with respect to those other
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urine.”    Ponirakis also testified that no doctor had ever given him
“any specific treatment for this blood in  [his] urine.”    Ponirakis’s
father, who testified that he had accompanied his son to  “99
percent” of his visits to doctors, stated that neither he nor his
son knew anything about the significance of blood and protein in
Ponirakis’s urine.
In November  1996, Dr. Choi, whose practice included internal
medicine and family practice, was Ponirakis’s  “primary care”
physician.    On November  14,  1996, Ponirakis saw Dr. Choi for the
first time because Ponirakis was experiencing chest pain.    Dr. Choi
diagnosed Ponirakis with costochondritis, a condition involving
tenderness "where the ribs join the muscles.”
Dr. Choi testified that during his first examination of
Ponirakis, he asked Ponirakis some questions, including whether
Ponirakis had had  “any serious diseases or operations.”2    Ponirakis
testified that Dr. Choi asked whether he had had "major operations
or major illnesses in the past."    Dr. Choi did not ask Ponirakis
whether he had ever had blood or protein in his urine, or whether he
had experienced any urinary or kidney-related problems or symptoms.
In answering Dr. Choi’s question, Ponirakis did not tell Dr.
Choi that he had experienced episodes of blood and protein in his
urine.    When asked why he did not mention these episodes, Ponirakis
defendants is not at issue in this appeal.
2Dr. Choi also testified that the question he asked was whether
Ponirakis had had "any serious disease or any significant disease in
the past."
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testified,  “I didn’t think that it was serious at the time, and plus
they did a kidney x-ray and showed that I was normal.”
Ponirakis testified that he was not aware of any further
urinary symptoms until about July  1997.    At that time, he saw that
his urine was  “dark colored” for the first time since July  1994, and
he  “was starting to feel bad again.”    Because of these symptoms,
Ponirakis saw Dr. Choi, who ordered blood tests and a urine study.
The urine study indicated that Ponirakis had blood in his urine.
After reviewing the results of these tests, Dr. Choi referred
Ponirakis to a nephrologist, who diagnosed Ponirakis's condition as
lupus nephritis.
As a result of this disease, Ponirakis’s kidneys failed.    In
March  1998, he was placed on kidney dialysis and, in July  1998, he
underwent a kidney transplant.    The transplant was unsuccessful, and
the transplanted kidney was removed in October  1998.    Ponirakis
continues to require kidney dialysis three times a week.
Ponirakis presented expert testimony from Dr. Alan Mackintosh,
a physician who is board-certified in family practice medicine.    Dr.
Mackintosh testified that Dr. Choi breached the applicable standard
of care for a family practice physician in his treatment of
Ponirakis.    According to Dr. Mackintosh, a reasonably prudent family
practice physician would have conducted a  “review of systems” with a
new patient, which would have included asking specific questions
about such subjects as blood in the urine.    However, Dr. Mackintosh
also stated that he would have expected Ponirakis to inform Dr. Choi
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about the prior episodes of blood and protein in his urine when
asked whether he had ever had  “any serious diseases or operations.”
Dr. Choi presented testimony from Dr. Frederick W. Hubach, a
physician who is board-certified in family medicine.    Dr. Hubach
testified that the applicable standard of care did not require Dr.
Choi to do a complete  “review of systems” on Ponirakis’s first visit
to Dr. Choi’s office.
Dr. Choi testified that if he had learned about the past
episodes of blood and protein in Ponirakis’s urine when he first
examined Ponirakis in  1996, he would have arranged for additional
testing at that time.    Dr. Choi stated that if such additional
testing had been performed, the tests likely would have revealed
Ponirakis's kidney problems.    Dr. Choi further stated that on
receipt of this information, he would have referred Ponirakis to a
kidney specialist and Ponirakis’s kidneys would have been saved.
Dr. Choi testified that it was  “entirely Mr. Ponirakis’[s]
fault” for not informing Dr. Choi of the previous episodes of blood
in the urine.    Dr. Choi also stated that he trusted Ponirakis to
understand what a "serious disease" was, and that if Ponirakis did
not understand, he should have asked Dr. Choi the meaning of the
term "serious disease."    Although Dr. Choi testified that tests for
blood in the urine are used to "screen" a patient for  “underlying
disease,” no evidence was presented at trial that blood and protein
in the urine, by itself, is a  “serious disease.”
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Over Ponirakis’s objection, the trial court instructed the jury
on the defense of contributory negligence.    The jury was asked to
determine whether Ponirakis was negligent during his first visit to
Dr. Choi and, if so, whether Ponirakis's negligence was a proximate
cause of his own injuries.    The jury returned a verdict in favor of
Dr. Choi, and the trial court entered judgment in accordance with
the jury verdict.
On appeal, Ponirakis argues that the trial court erred in
instructing the jury on the defense of contributory negligence.
Ponirakis contends that, as a matter of law, his failure to disclose
his past episodes of blood and protein in his urine in response to
Dr. Choi’s question concerning  “serious diseases or operations” does
not constitute contributory negligence.    Ponirakis emphasizes that
the record contains no evidence that the presence of blood or
protein in the urine is a  “serious disease.”    He alternatively
contends that even if the presence of blood and protein in the urine
indicates the presence of a  “serious disease,” Dr. Choi failed to
produce evidence that Ponirakis knew or should have known that fact.
In response, Dr. Choi contends that the trial court correctly
instructed the jury on the defense of contributory negligence.    He
asserts that the evidence was sufficient to support a finding that
Ponirakis was negligent when he failed to disclose the prior
episodes of blood and protein in his urine in response to Dr. Choi’s
question.    Dr. Choi argues that the jury properly was allowed to
determine whether, as a matter of fact, Dr. Choi’s question would
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have prompted a reasonable person in Ponirakis’s position to
disclose these prior episodes.    We disagree with Dr. Choi’s
arguments.
Contributory negligence is a defense that is based on the
objective standard of whether a plaintiff failed to act as a
reasonable person would have acted for his own safety under the
circumstances.    Hoar v. Great Eastern Resort Management, Inc.,  256
Va.  374,  390,  506 S.E.2d  777,  787  (1998); Artrip v. E.E. Berry
Equipment Co.,  240 Va.  354,  358,  397 S.E.2d  821,  823-24  (1990).    The
essence of contributory negligence is carelessness.    Artrip,  240 Va.
at  358,  397 S.E.2d at  823-24.    The defendant has the burden of
proving contributory negligence by the greater weight of the
evidence.    Gravitt v. Ward,  258 Va.  330,  335,  518 S.E.2d  631,  634
(1999); Artrip,  240 Va. at  358,  397 S.E.2d at  823.
In order for contributory negligence to bar recovery by a
plaintiff, the plaintiff’s negligence must be concurrent with the
defendant’s negligence.    Gravitt,  258 Va. at  335,  518 S.E.2d at  634;
Eiss v. Lillis,  233 Va.  545,  552,  357 S.E.2d  539,  543  (1987);
Lawrence v. Wirth,  226 Va.  408,  412,  309 S.E.2d  315,  317  (1983).    In
the medical malpractice context, this requirement means that the
patient’s negligent act must be contemporaneous with the main fact
asserted as the negligent act of the physician.    Id.
Generally, an issue whether a plaintiff is guilty of
contributory negligence is a question of fact to be decided by the
trier of fact.    Artrip,  240 Va. at  358,  397 S.E.2d at  823; Stevens
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v. Ford Motor Co.,  226 Va.  415,  420-21,  309 S.E.2d  319,  322-23
(1983).    However, before an issue of contributory negligence may be
submitted to a jury, there must be more than a scintilla of evidence
to support a finding that the plaintiff failed to act as a
reasonable person would have acted for his own safety under the
circumstances.    See Gravitt,  258 Va. at  336,  518 S.E.2d at  634; Ring
v. Poelman,  240 Va.  323,  327,  397 S.E.2d  824,  827  (1990); Yeary v.
Holbrook,  171 Va.  266,  287-88,  198 S.E.  441,  451  (1938).
Applying these principles, we conclude that as a matter of law
there was no evidence that Ponirakis was negligent in failing to
disclose the prior episodes of blood and protein in his urine in
response to Dr. Choi’s question whether he had experienced any
“serious diseases or operations.”    While the evidence indicates that
the presence of blood or protein in the urine is a symptom of
“underlying disease,” nothing in the record supports a finding that
the presence of blood and protein in the urine itself constitutes a
“serious disease.”    In addition, the record contains no evidence
that a reasonable patient in a similar situation should have asked
his physician to explain the physician’s understanding of the term
“serious diseases or operations.”
The evidence also does not support a conclusion that Ponirakis
knew, or that a reasonable person in Ponirakis’s position should
have known, that the prior episodes of blood and protein in his
urine indicated the presence of a  “serious disease.”    Ponirakis
testified that his physicians never informed him that this symptom
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indicated the presence of a  “serious disease,” and Dr. Choi failed
to produce evidence to contradict this testimony.
Our conclusion that the record does not contain any evidence of
contributory negligence is not altered by Dr. Mackintosh’s testimony
that he would have expected Ponirakis to disclose his past episodes
of blood and protein in his urine in response to Dr. Choi’s
question.    That testimony was irrelevant to the issue of Ponirakis’s
contributory negligence because the testimony addressed only Dr.
Mackintosh’s subjective expectations, which had no bearing on the
issue of what a reasonable person in Ponirakis’s position should
have done.
For the same reason, Dr. Choi’s testimony that he trusted
Ponirakis to understand the meaning of the term  “serious disease,”
and to ask for clarification if he did not, also was irrelevant.
Dr. Choi’s expectations concerning his patients’ responses to his
questions were not evidence of how a reasonable person in
Ponirakis’s situation would have responded to the question at issue.
As stated above, Dr. Choi failed to present any evidence that his
question would have caused a reasonable person in Ponirakis’s
position to seek clarification of the term  “serious disease.”
Since there was no evidence to support a contributory
negligence instruction, the trial court erred in instructing the
jury on that issue.    We cannot determine from the record whether the
jury based its verdict on that issue or on a determination that Dr.
Choi was free of primary negligence.    Therefore, we cannot say that
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the erroneous instruction did not affect the jury’s determination,
and we must presume that the jury relied on the erroneous
instruction in reaching its verdict.    See Gravitt,  258 Va. at  337,
518 S.E.2d at  635; Clohessy v. Weiler,  250 Va.  249,  253-54,  462
S.E.2d  94,  97  (1995).3
For these reasons, we will reverse the trial court’s judgment
and remand the case for a new trial.
Reversed and remanded.
3 We find no merit in Dr. Choi’s argument that Ponirakis failed
to preserve his objection to the contributory negligence instruction
because he did not request a special verdict form requiring the jury
to state whether it based its verdict on the absence of primary
negligence or on contributory negligence.    Ponirakis timely stated
his objection to the contributory negligence instruction, and a
special verdict form would have had no bearing on the preservation
of this objection.
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