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DONNA J. GAMACHE, M.D., ET AL. OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR. v. Record No. 032321 September 17, 2004 CRAIG ALLEN FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG John W. Scott, Jr., Judge I. In this appeal of a judgment entered in favor of plaintiff in an action for medical negligence against two health care providers, we consider whether the circuit court erred by refusing to permit defendants to cross-examine plaintiff and his witnesses on certain issues that related to his claim for damages. II. A. Plaintiff, Craig Allen, filed his motion for judgment against Donna J. Gamache, M.D., her employer, Mid-Atlantic Health Alliance, Inc., t/a Lee's Hill Medical Associates, and another physician, Timothy A. Powell, M.D. Plaintiff alleged

that the defendants breached certain duties owed to him by failing to diagnose and treat a disease that affected his cervical spine. Prior to trial, plaintiff filed motions in limine. Plaintiff informed the circuit court that he intended to

present evidence that would permit the jury to conclude that he attempted to commit suicide in April 2002 and that this act was proximately caused by the negligence of the health care providers. He also informed the court that the health care

providers intended to present evidence that plaintiff's attempt to commit suicide was related to other factors, specifically, his wife's alleged abuse of narcotics and his wife's alleged acts of self-mutilation. Defendants asserted

in the circuit court that they were entitled to show the jury that these acts caused plaintiff to attempt to commit suicide. The court granted the motions in limine. The court ruled that

defendants could present evidence regarding depression that plaintiff's wife suffered, but they could not present evidence of her alleged abuse of narcotics or her alleged acts of selfmutilation. B. During a jury trial, plaintiff presented the following evidence. Plaintiff met with Dr. Gamache on June 22, 2000.

He informed her that he had experienced mild anxiety and that he had used a drug, Ativan (a brand name for Lorazepam), that had been prescribed by his former physician. Dr. Gamache

prescribed a different anti-anxiety medication, BuSpar (buspirone hydrochloride), for plaintiff.

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On July 25, 2000, plaintiff placed a telephone call to Dr. Gamache's office, and he complained of muscle aches, numbness, and "pins-and-needles" sensations in his arms and legs. He did not speak with Dr. Gamache, but he spoke with a

receptionist who informed plaintiff that he was possibly experiencing symptoms associated with the use of BuSpar and that he should decrease the daily dosage. Even though plaintiff decreased his dosage of BuSpar as instructed by Dr. Gamache's office, he experienced additional problems in his arms and legs. On August 17, 2000, plaintiff

made another telephone call to Dr. Gamache's office and described his symptoms. Again, he spoke with the The receptionist informed

receptionist, not with Dr. Gamache.

plaintiff that he was merely experiencing side effects of BuSpar that would last six to eight weeks from the date he discontinued use of that drug. Later, someone from Dr. Gamache's office contacted plaintiff and asked if he desired to come to the office for an appointment on September 1, 2000. Plaintiff met with Dr. Dr.

Gamache on September 1 and described his symptoms to her.

Gamache did not examine plaintiff and assured him that he was experiencing symptoms associated with the use of BuSpar. Dr.

Gamache did not think plaintiff's complaints constituted an emergency.

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Plaintiff's condition continued to deteriorate. difficulty walking, and he lost his fine motor skills.

He had He

contacted Dr. Gamache's office by telephone, and he informed the receptionist that his symptoms had gotten worse. The

receptionist told plaintiff that Dr. Gamache could see him in two days. Plaintiff did not accept the appointment because of

other commitments. Plaintiff's condition deteriorated even further. However, plaintiff did not seek alternative medical attention because Dr. Gamache had repeatedly assured him that his symptoms were not significant. Plaintiff's condition became

worse and subsequently, plaintiff's wife, Anna K. Allen, took him to the emergency room of the Mary Washington Hospital in Fredericksburg. Dr. Richard P. Erwin, a neurologist, treated plaintiff while he was a patient at the Mary Washington Hospital. Dr.

Erwin's physical examination revealed an abnormality below plaintiff's neck, and Dr. Erwin immediately suspected that plaintiff's spinal cord might have been affected. Dr. Erwin

ordered that a magnetic resonance imaging scan (MRI) be taken, and the image revealed an inflammation of plaintiff's spinal cord. Dr. Erwin immediately treated plaintiff with high-dose

steroids, and plaintiff was transferred to the Medical College

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of Virginia Hospitals, where he was diagnosed as having transverse myelitis, an inflammation of the spinal cord. Dr. Michael Jacobs, an internist, testified that the health care providers breached the standard of care owed to plaintiff because they failed to diagnose his condition in a timely manner. Dr. Douglas Kerr, a neurologist, testified

that plaintiff, who now suffers from irreparable neurological damage, could have had his condition arrested had the physicians diagnosed and treated his condition sooner. Plaintiff presented evidence that he incurred physical and emotional damages, including major depression, proximately caused by the defendants' acts of medical negligence. Dr.

Murry J. Cohen, a psychiatrist who qualified as an expert witness, testified that plaintiff suffered from major depression, that plaintiff attempted to commit suicide in 2002, and that this attempt was caused by his physical disabilities associated with transverse myelitis. Dr. Cohen testified that plaintiff suffered from depression, which was caused by major "stressors." Dr. Cohen

stated, "I thought it was . . . clearly the fact that he was suffering from a very severe, albeit not diagnosed, neurological illness that was causing great distress, physically and emotionally, and was interfering with his functioning down the line. And it was clear to me that . . .

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without question, that was the major stressor and the major precipitant." Dr. Cohen acknowledged that even though

plaintiff was dealing with several stressors in his life, including his job, financial problems, his marriage, and relationships, Cohen described these stressors as minor and testified that plaintiff's illness was the major stressor that caused his attempt to commit suicide. Plaintiff presented evidence that his neurological deficit is profound, his condition will continue to deteriorate, he has incurred in excess of $96,000 in medical expenses, he will require future medical care in excess of $2,500,000, and he has suffered a loss of earning capacity in excess of $1,100,000. The jury returned a verdict in favor of plaintiff against Dr. Gamache and her employer, Mid-Atlantic Health Care Alliance, in the amount of $6,500,000. The jury returned a

verdict in favor of defendant, Dr. Powell, and he is no longer a party to this proceeding. Pursuant to Code

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