COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys,

* Friedman and White

Argued at Christiansburg, Virginia

TAMMY WOLLAM, ADMINISTRATOR OF 

 THE ESTATE OF DOUGLAS ALLEN HICKS, SR.

MEMORANDUM OPINION** BY

v. Record No. 0483-23-3 JUDGE KIMBERLEY SLAYTON WHITE

MARCH 26, 2024

ACV, INC.

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE

David B. Carson, Judge

E. Kyle McNew (M. Bryan Slaughter; Les S. Bowers; Christina R. 

Dimeo; MichieHamlett, PLLC, on briefs), for appellant.

Carlyle R. Wimbish, III (Bradley D. Reeser; Wimbish Gentile 

McCray & Roeber, PLLC, on brief), for appellee.

Tammy Wollam appeals the trial court’s giving of a jury instruction proposed by ACV, 

claiming it does not properly reflect Virginia law and is argumentative and misleading. She 

argues that a newly approved, but not yet published, revised version of the model jury instruction 

should have been used instead. Whether the trial court’s jury instructions were proper are 

viewed under an abuse of discretion standard. For the following reasons, we affirm the trial 

court’s ruling. 

* Judge Humphreys participated in the hearing and decision of this case prior to the 

effective date of his retirement on December 31, 2023. 

.

** This opinion is not designated for publication. See Code § 17.1-413.

UNPUBLISHED
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BACKGROUND

Beginning in 2016, Mr. Hicks received care for an infection. Eventually, Mr. Hicks’s

symptoms progressed to the point where he was checked into Carilion Roanoke Memorial 

Hospital emergency room. Mr. Hicks’s symptoms included difficulty breathing due to a mass in 

his neck that was causing his airway to be pushed to the side and compressed. Dr. Bernier, the 

original examining physician, stated that she could see the neck mass increasing each time she 

examined him. Dr. Bernier did not secure Mr. Hicks’s airway nor do anything to stop the growth 

of the mass. Dr. Boring, the second examining physician, also observed a large mass, and 

therefore ordered a CT scan. Dr. Boring also ordered a “difficult airway” cart to be placed near 

him in the ICU. 

Dr. Shafer was the anesthesiologist on call at the time and date when Hicks was admitted 

to the ICU. Dr. Shafer was called in to consult once the CT scan confirmed the mass on Hicks’s

neck. Dr. Shafer performed an examination on Hicks and determined he needed an urgent 

intubation to secure his airway. 

Despite examining Mr. Hicks, Dr. Shafer was unaware that he presented a “difficult 

airway.” Others knew of the neck mass, but Dr. Shafer stated that he did not and, therefore, 

never considered an awake intubation. Because Mr. Hicks had a “difficult airway,” if the 

process of intubation took too long, the doctors ran the risk of the patient not being able to 

breathe while under anesthesia. 

Dr. Shafer attempted multiple times unsuccessfully to do a normal intubation. A surgical 

team then had to do an emergency tracheostomy. This procedure, as a whole, took longer than 

expected and resulted in significant blood loss and trauma to the throat. Several hours after the 

surgical airway was placed, Mr. Hicks experienced a series of cardiac arrests. Mr. Hicks passed 

away in the hospital seven days after the surgery. 
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Tammy Wollam, Administrator of the Estate of Douglas Allen Hicks, Sr., (Wollam) filed 

an amended wrongful death complaint against Dr. Shafer and his employer, ACV, Inc. (ACV).

Wollam alleged one count of negligence, arguing that Hicks’s “death was avoidable and would 

have been avoided if the defendants had complied with the applicable standard of care” and that 

“[t]he defendants, either directly or by and through the employees, agents, servants, partners, 

and/or joint venturers, breached the standard of care and were medically negligent in their care 

and treatment of” Hicks.1

Before the scheduled jury trial, the parties submitted proposed jury instructions. Relevant 

to this appeal, ACV proposed a jury instruction that stated “[t]he fact that Dr. Shafer was unable 

to successfully intubate Mr. Hicks does not, by itself, establish a breach of the standard of care or 

entitle [the estate] to recover in this case.” (Proposed Instruction 9). For this instruction, ACV 

cited Virginia Model Jury Instructions (“VMJI”), Civil Instruction Nos. 4.015 and 35.040. This 

instruction often is referred to as the “Unsuccessful Outcome” instruction.” Wollam requested 

the circuit court instead instruct the jury that “[t]he mere fact that Mr. Hicks died does not mean 

that [ACV] was negligent. However, you may consider Mr. Hicks’s outcome, along with the 

other evidence, in determining whether the defendant was negligent.” (Proposed Instruction G). 

The parties convened for trial. At the close of evidence, the circuit court heard argument 

on the parties’ objections to the jury instructions. Wollam argued that Proposed Instruction 9 

was “essentially an instruction that the VMJI and numerous Virginia Supreme Court justices 

have recognized is tilted toward the defense, unfairly so.” Wollam argued that a new version of 

1 Connie Hicks, who was at the time the administrator of the estate of Douglas Hicks, her 

late husband, initially filed the complaint and named Carol Bernier, D.O., Jonathan M. Boring, 

D.O., and their employer, Carilion Clinic (“Carilion”) as defendants. The circuit court later 

substituted Wollam, Hicks’s daughter, as the plaintiff. After filing the original complaint, 

Wollam non-suited the case against Drs. Bernier, Boring, and Shafer, and settled the case with 

Carilion. 
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VMJI No. 35.040 shifts towards “equitableness” and “fairness.”2 Wollam alleged that “a jury 

instruction saying that the fact of being unable to intubate doesn’t establish a breach of the 

standard of care, that directly comments on [ACV’s] theory of the case and endorse[d] it.” ACV 

responded that Proposed Instruction 9 was “an appropriate instruction based on the evidence in 

this case.” ACV stated that the circuit court provided the instruction during a trial in the 

previous year. 

The circuit court refused Proposed Instruction G. The circuit court accepted Proposed 

Instruction 9 and instructed the jury that “[t]he fact that Dr. Shafer was unable to successfully 

intubate Mr. Hicks does not, by itself, establish a breach of the standard of care or entitle the 

Plaintiff to recover in this case.” (Jury Instruction 9). After receiving all of the instructions of 

the circuit court and hearing the closing arguments of counsel, the jury returned a verdict in 

ACV’s favor. The circuit court entered judgment on the verdict on February 23, 2023. 

On appeal, Wollam argues that the circuit court committed reversible error by giving Jury 

Instruction 9. Wollam alleges that Jury Instruction 9 “spoke only in the negative, of what does 

not establish negligence,” and that the circuit court “must balance that by identifying what can 

prove negligence and by contextualizing how the outcome may be considered in determining 

negligence.” Wollam contends that the new version of VMJI No. 35.040 “provides the 

necessary balance by speaking first in the negative of what mere fact does not establish 

negligence and then speaking in the positive of how that fact can still play into the negligence 

determination.” Wollam claims that Jury Instruction 9, “took all of the deficiencies of the old 

model and then added the fundamental errors of isolating part of the evidence, contradicting 

other evidence, and adding argumentative language at the end.” Specifically, Wollam argues 

2 At the time of trial, VMJI No. 35.040 had been revised by the Model Jury Instruction 

Committee, but it had not yet been published. 
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that the circuit court erred in informing the jury “that the unsuccessful intubation was not 

evidence of negligence.” Wollam concludes that the circuit court should have informed the jury 

of the “general, neutral principles,” and should have left it to “the parties to argue how to 

reconcile conflicting evidence and how to apply the neutral principles to the evidence.”

ANALYSIS

Properly instructing the jury “rest[s] within the sound discretion of the trial court.” 

Cooper v. Commonwealth, 277 Va. 377, 381 (2009). The sole purpose of appellate review of 

jury instructions is “to see that the law has been clearly stated and that the instructions cover all 

issues which the evidence fairly raises.” Dorman v. State Indus., Inc., 292 Va. 111, 125 (2016). 

“We review a trial court’s decisions in giving and denying requested jury instructions for abuse 

of discretion.” Conley v. Commonwealth, 74 Va. App. 658, 675 (2022). “Whether a proffered 

jury instruction accurately states the law, however, is reviewed de novo.” Holmes v. 

Commonwealth, 76 Va. App. 34, 53 (2022). “And in deciding whether a particular instruction is 

appropriate, we view the facts in the light most favorable to the proponent of the instruction.”

Cooper, 277 Va. at 381.

The use of the “Unsuccessful Outcome” instruction has been prevalent in Virginia for 

over 100 years and was only changed within the past year. The previous wording of the 

“Unsuccessful Outcome” instruction was, “The fact that a doctor’s efforts on behalf of his 

patient were unsuccessful does not, by itself, establish negligence.” Virginia Model Jury

Instrs.—Civil, No. 35.040, Mathew Bender & Co. (2021-22 ed.). This was recently replaced in 

the model instructions with, “The mere fact that a plaintiff [was not cured; was injured; had a bad 

result] does not mean that the defendant was negligent. However, you may consider the 

plaintiff’s outcome, along with the other evidence, in determining whether the defendant was 
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negligent.” Virginia Model Jury Instrs.—Civil No. 35.040, Mathew Bender & Co. (2022-23 

ed.).

VMJI No. 35.040 traces its roots in Virginia law back to Hunter v. Burroughs, 123 Va. 

113 (1918), from 1918. There, the Supreme Court affirmed the giving of a jury instruction that 

read 

[t]he court instructs the jury that the fact that after the plaintiff was 

treated with the X-ray by the defendant ulcers appeared on his legs 

does not of itself alone entitle the plaintiff to recover; and the jury 

are instructed that they shall find for the defendant unless the 

plaintiff has shown by a preponderance of the evidence that the 

ulcers were caused by the negligence of the defendant, or his lack 

of skill, or his failure to apply the same.

Id. at 126. Many cases followed Hunter and provided the language used in the model jury 

instruction. See Fox v. Mason, 139 Va. 667 (1924); Ropp v. Stevens, 155 Va. 304 (1930); Reed 

v. Church, 175 Va. 284 (1940); Carroll v. Richardson, 201 Va. 157 (1959); Easterling v. Walton, 

208 Va. 214 (1967). 

In the mid-eighties, the Supreme Court held that “[a] physician is not an insurer of the 

success of his diagnosis and treatment . . . . The mere fact that he has failed to effect a cure or 

that his diagnosis and treatment have been detrimental to the patient’s health does not raise a 

presumption of negligence.” Brown v. Koulizakis, 229 Va. 524, 532 (1985). Most recently, in 

2017, the Supreme Court issued an unpublished opinion approving the use of a jury instruction 

based on VMJI No. 35.040.3 Citing to Brown, the Court stated that VMJI No. 35.040 “derives 

its language from the holdings of several of this Court’s opinions.” Chapple-Brooks v. Nguyen, 

No. 161812, 2017 Va. Unpub. LEXIS 35, at *9 (Dec. 28, 2017). The Court stated further that 

3 Unpublished opinions have no precedential value and serve only as persuasive authority 

for this Court. 
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the instruction “was not argumentative and did not have the tendency to mislead or confuse the 

jury.” Id.

The first issue to address is in this case is whether Instruction No. 9 is a correct statement 

of Virginia law. Appellate review of jury instructions is focused on ensuring “that the law has 

been clearly stated and that the instructions cover all issues which the evidence fairly raises.” 

Dorman, 292 Va. at 125 (quoting Cain v. Lee, 290 Va. 129, 134 (2015)). While Wollam cites to 

cases from other jurisdictions approving the giving of a different instruction, she does not cite to 

any case overruling or limiting the long line of cases stemming from Hunter. This Court cannot 

ignore the century of law from which VMJI No. 35.040 is derived. Our de novo review requires 

us to find that Instruction No. 9 is a correct statement of Virginia law. 

We next turn to Wollam’s arguments that the proposed instruction was misleading and 

argumentative. Wollam asserts that the instruction misleads the jury and argues that Virginia 

law has recognized the dangers in instructions that “single out for emphasis a part of the 

evidence.” Keefer v. Commonwealth, 56 Va. App. 520, 524 (2010) (quoting Woods v. 

Commonwealth, 171 Va. 543, 548 (1938)). Wollam argues that the instruction only highlights

the inability of Dr. Shafer to intubate Mr. Hicks and fails to address the failure by Dr. Shafer to 

take a proper physical examination. Wollam also argues that Instruction No. 9 tells the jury that 

failed intubation is not evidence of negligence. 

However, the changes from VMJI No. 35.040 to Instruction No. 9 are more similar to 

case specifications permitted by Virginia law. Code § 8.01-379.2 states that “[a] proposed jury 

instruction submitted by a party, which constitutes an accurate statement of the law applicable to

the case, shall not be withheld from the jury solely for its nonconformance with the model jury 

instructions.” Below are the two instructions. 
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“The fact that a doctor’s efforts on behalf of his patient were unsuccessful does not, by 

itself, establish negligence.” (35.040). 

“Instruction nine, the fact that Dr. Shafer was unable to successfully intubate Mr. Hicks 

does not, by itself, establish a breach of the standard of care or entitle the Plaintiff to 

recover in this case.” (Instruction No. 9). 

The differences include inputting Dr. Shafer’s name, adding the effort that failed, 

changing negligence to “breach of standard of care,” and adding that this alone doesn’t allow 

plaintiff to recover. The minor modifications that tailored the instruction to the individual 

physician, patient, and procedure at issue did not render it inappropriate. Further, and in 

response to Wollam’s argument that the trial court “erred in informing the jury ‘that the 

unsuccessful intubation was not evidence of negligence,’” the instruction was clear that the 

unsuccessful outcome did not by itself establish negligence—a correct statement of the law. As 

shown, the instruction was supported by the law and the evidence, meaning these small changes 

are insufficient to justify a finding of abuse of discretion by the lower court. 

Wollam’s third criticism of Instruction No. 9 is that the addition of the phrase “or entitle 

the Plaintiff to recover in this case,” renders the instruction “unduly argumentative and 

misleading.” This argument is undermined by the fact that the Supreme Court of Virginia 

specifically approved this language used in VMJI Civil No. 4.015 (Lexis 2020-2021 ed.), in 

Edlow v. Arnold, 243 Va. 345, 349-50 (1992). The instruction approved in Edlow stated in 

relevant part: “The Court instructs the jury that the fact that there was an accident and that the 

plaintiff may have been injured does not, of itself, entitle the plaintiff to recover.” Id. at 349.

It is a fair statement of the rule that, in order to recover for a 

negligent tort, a plaintiff must prove by a preponderance of the 

evidence that the defendant was guilty of some act or omission 

which constituted a want of due care under the circumstances 

disclosed by the evidence. 
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Id. at 350. It follows that if the evidence did not show a breach of a standard of care, then 

Wollam would not be able to recover from ACV. Including that language in Instruction No. 9

was not an abuse of discretion by the lower court. 

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.