Chandler v. Graffeo11/5/2004
egligence must be contemporaneous with the claimed defendant's negligence. Sawyer v. Comerci, 264 Va. 68, 75, 563 S.E.2d 748, 753 (2002); Ponirakis v. Choi, 262 Va. 119, 125, 546 S.E.2d 707, 711 (2001); Gravitt v. Ward, 258 Va. 330, 335, 518 S.E.2d 631, 634 (1999); Eiss v. Lillis, 233 Va. 545, 552, 357 S.E.2d 539, 543 (1987); Lawrence v. Wirth, 226 Va. 408, 412-13, 309 S.E.2d 315, 317-18 (1983). We conclude that the record is devoid of any evidence suggesting that Fields was negligent. Clearly, there was no evidence of any negligence by Fields that was contemporaneous with Dr. Graffeo's negligence in discharging him from the hospital. Dr. Graffeo did not think Fields' condition was life threatening, and Fields, a layman, cannot be expected to know otherwise. We hold, therefore, that the trial court erred in granting the jury instructions on contributory negligence. See Sawyer, 264 Va. at 75-76, 563 S.E.2d at 753.
Regarding concurring negligence, Chandler asserts that the evidence showed that both Dr. King and Dr. Graffeo were negligent. We do not agree.
The Panel opinion served as the sole expert evidence regarding Dr. King's deviation from the standard of care. This evidence was insufficient to establish Dr. King's negligence because it would have left the jury to speculate regarding the appropriate standard of care. See Raines v. Lutz, 231 Va. 110, 114, 341 S.E.2d 194, 197 (1986). In cases such as this, evidence of negligence must come from other expert testimony. We hold, therefore, that the trial court properly refused to grant a jury instruction regarding concurring negligence.
VI.
Finally, we consider whether the trial court erred in permitting Dr. Graffeo to recite the opinion of Dr. Zaitoun, a non-testifying expert. At trial, over Chandler's hearsay objection, Dr. Graffeo was permitted to testify that he had described Fields' condition and symptoms to Dr. Zaitoun and that Dr. Zaitoun had agreed that it was safe to discharge Fields from the hospital. Dr. Graffeo asserts that Dr. Zaitoun's opinion was not hearsay because it was not introduced to prove the truth of the assertion.
We have described hearsay evidence as "evidence which derives its value, not solely from the credit to be given the witness on the stand, but in part from the veracity and competency of some other person. It is primarily testimony which consists in a narration by one person of matters told him by another. A clear example of hearsay evidence is where a witness testifies to the declaration of another for the purpose of proving the facts asserted by the declarant."
Wright v. Kaye, 267 Va. 510, 530, 593 S.E.2d 307, 318 (2004) (quoting Williams v. Morris, 200 Va. 413, 416-17, 105 S.E.2d 829, 832 (1958)). We have also said that " ' o litigant in our judicial system is required to contend with the opinions of absent "experts" whose qualifications have not been established to the satisfaction of the court, whose demeanor cannot be observed by the trier of fact, and whose pronouncements are immune from cross-examination.' " CSX Transportation v. Casale, 247 Va. 180, 183, 441 S.E.2d 212, 214 (1994) (quoting McMunn v. Tatum, 237 Va. 558, 566, 379 S.E.2d 908, 912 (1989)).
We find no other reason for introducing Dr. Zaitoun's opinion than to bolster Dr. Graffeo's testimony to prove that he had complied with the appropriate standard of care. We hold, therefore, that the testimony constituted inadmissible, prejudicial hearsay, which was not subject to cross-examination, and that the trial court erred in permitting Dr. Graffeo to recite it.
VII.
For the reasons stated, we will reverse the trial court's judgment and remand the case fo
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