## Facts

- Norman Lee Plogger came to a hospital emergency room with continuous right-sided abdominal pain and reported feeling unwell for some time.
- A few days earlier, his family physician had diagnosed a viral illness; Plogger had not disclosed his abdominal pain to that physician.
- In the emergency room, Plogger told staff he had experienced abdominal pain for months but had not mentioned it to his family doctor.
- Testing showed blood in his stool and an elevated white blood cell count; the emergency physician, Dr. Cathy Comerci, believed an inflammatory or infectious process was present and concluded he should be admitted.
- Dr. Comerci lacked admitting privileges and contacted a surgeon, who declined to order admission.
- Dr. Comerci urged Plogger to remain at the hospital, but he refused admission and left after being instructed to see his personal physician within two days.
- Plogger returned to the emergency room three days later with a sore throat; Dr. Comerci again reminded him to see his personal physician about the abdominal condition.
- Two days later, Plogger returned by ambulance, was admitted, and died the following day.
- The estate sued for medical negligence and wrongful death; at trial, the court instructed the jury on contributory negligence and failure to mitigate damages and limited cross-examination of a defense expert about prior testimony and compensation from Dr. Comerci; the jury found for Dr. Comerci.

## Issues

1. Whether the evidence supported instructing the jury on the decedent’s contributory negligence in a medical-malpractice case.
2. Whether the evidence supported instructing the jury on failure to mitigate damages based on the decedent’s alleged failure to follow medical advice after the emergency-room visit.
3. Whether the trial court improperly restricted cross-examination of the defense expert about prior testimony for, and compensation from, the defendant physician to show potential bias.

## Decision

- The Supreme Court of Virginia reversed the judgment for Dr. Comerci and remanded for a new trial.
- The court held the contributory-negligence instruction was erroneous because the evidence did not establish a prima facie case of concurrent contributory negligence proximately causing the injury.
- The court held the mitigation-of-damages instruction was erroneous because the evidence did not sufficiently show that the decedent’s post-treatment conduct increased damages.
- The court held the limitation on cross-examination of the defense expert about prior testimony and compensation from the defendant improperly curtailed impeachment for bias.

## Legal Principles

- Contributory negligence is an affirmative defense requiring proof that the plaintiff failed to act as a reasonable person would for self-protection and that such failure proximately contributed to the injury.
- In medical-malpractice cases, patient contributory negligence must be concurrent with the physician’s alleged negligence; a jury instruction is improper absent more than a mere scintilla of evidence establishing a prima facie case.
- Failure to mitigate damages addresses post-tort conduct; the defendant must show the plaintiff unreasonably failed to minimize harm and that this failure caused an increase in damages.
- Cross-examination to show a witness’s bias, motive, or interest, including an expert’s prior work for a party and related compensation, is generally permissible; a trial court’s discretion to limit cross-examination cannot eliminate a meaningful opportunity to expose bias.

## Conclusion

The court ordered a new trial because the defense was allowed to argue contributory negligence and mitigation without legally sufficient evidentiary support, and because the plaintiff was improperly prevented from probing a defense expert’s potential bias arising from prior testimony and compensation from the defendant physician.


Sawyer v. Comerci, 264 Va. 68, 563 S.E.2d 748 (2002)