Present: All the Justices 

IRENE M. DIEHL, ADMINISTRATRIX OF THE 

ESTATE OF FRANCIS JOSEPH DUNLAP, SR., DECEASED 

OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 971090 April 17, 1998 

EDWARD B. BUTTS, M.D. 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Frederick B. Lowe, Judge 

I. 

 The primary issue that we consider in this appeal of a 

judgment entered in a medical malpractice action is whether 

Code § 8.01-397, commonly referred to as the dead man’s 

statute, barred the admission of the defendant’s testimony. 

II. 

 Susan Gale Knight Dunlap filed this action as the wife 

and guardian for Francis Joseph Dunlap, Sr., incompetent, 

against Dr. Edward B. Butts, alleging that he breached the 

standard of care owed to her husband. At a jury trial, the 

litigants adduced the following evidence which is relevant to 

our disposition of this appeal. 

 Mr. Dunlap fell from his bicycle and injured his head on 

September 6, 1992. The next day, he awoke with a headache, so 

he decided to obtain a medical examination to make sure that 

he did not have a concussion. Mr. Dunlap went to a clinic 

where he was examined by Dr. Stephen Menefee. Mr. Dunlap 
received a form, which the litigants described as a “head 

sheet,” that enumerated certain symptoms and warnings 

associated with severe head injury, and he was instructed to 

contact a physician in the event he experienced any of these 

symptoms. Dr. Menefee informed Mr. Dunlap that he had high 

blood pressure and advised him to seek treatment from his 

family physician. 

 Mr. Dunlap, who was still experiencing headaches, was 

evaluated by his family physician, Dr. Clarence A. Holland, on 

September 9, 1992. Dr. Holland told Mr. Dunlap to continue to 

monitor himself for the symptoms and warning signs enumerated 

on the “head sheet.” 

 Mr. Dunlap continued to experience headaches, so he went 

to see Dr. Holland again on September 11, 1992. Dr. Holland 

noted in his medical records that Mr. Dunlap had complained of 

nausea and dizziness, and Dr. Holland ordered a computerized 

tomography (CT) scan of Mr. Dunlap’s head. Dr. Holland 

instructed Mr. Dunlap to go to a hospital where the CT scan 

would be performed and referred him to Dr. Butts, a 

neurosurgeon, who met Mr. Dunlap at the hospital. 

 After the CT scan was performed, Dr. Butts, Mr. Dunlap, 

and Mrs. Dunlap had a conversation in a waiting room. Dr. 

Butts informed Mr. and Mrs. Dunlap that there was “a little 

bit of blood on the right side of [Mr. Dunlap’s] brain but 

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that it would dissolve by itself.” Dr. Butts instructed the 

Dunlaps to watch for the symptoms that were enumerated on the 

“head sheet,” such as dizziness and nausea, and if any of 

these symptoms occurred, they should contact him. 

 Dr. Andrej M. Ciric, a radiologist who later interpreted 

the CT scan and wrote a report of his findings, noted that a 

subdural hematoma was present on the right side of Mr. 

Dunlap’s head and that he had suffered a cranial skeletal 

fracture. A subdural hematoma, commonly described as a blood 

clot, occurs when blood collects between the covering and 

surface of the brain. The accumulation of blood is caused by 

a tear of one of the veins on the surface of the brain. Mr. 

Dunlap’s subdural hematoma, which measured approximately 12 

centimeters in length and one centimeter in thickness, was 

compressing his brain. According to the plaintiff’s evidence, 

Dr. Butts failed to inform Mr. Dunlap about the size of his 

subdural hematoma or his depressed skull fracture. 

 On September 12 and 13, 1992, Mr. Dunlap’s nausea had 

stopped, but he continued to experience headaches. Mr. 

Dunlap, who was employed as a marine engineer and had been 

working as a consultant for a project in New Orleans, 

Louisiana, had originally intended to leave his home in 

Virginia and return to New Orleans by September 9, 1992. 

However, he had postponed his planned departure date because 

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of his injuries. According to the plaintiff’s evidence, Mr. 

Dunlap did not intend to return to New Orleans until he had 

obtained permission from Dr. Butts to do so. 

 Dr. Butts treated Mr. Dunlap in an examination room on 

September 14, 1992. No one was present during this 

examination other than Dr. Butts and Mr. Dunlap. Dr. Butts 

was permitted to testify, over the plaintiff’s objections, 

about his conversation with Mr. Dunlap when they were alone. 

Dr. Butts testified that he reviewed certain “warning signs” 

or symptoms which Mr. Dunlap should monitor and that these 

symptoms included nausea, dizziness, and slurring of speech. 

Dr. Butts said that he instructed Mr. Dunlap not to return to 

work in New Orleans and to come back for another evaluation in 

“a week-and-a-half.” 

 Mrs. Dunlap, who had accompanied her husband to Dr. 

Butts’ office on September 14, was in a waiting room during 

her husband’s examination. According to Mrs. Dunlap, after 

Dr. Butts had examined her husband, Mr. Dunlap informed her 

that Dr. Butts told Mr. Dunlap that he could return to New 

Orleans. Mr. Dunlap informed his wife that Dr. Butts told Mr. 

Dunlap “to keep an eye out for such things as nauseousness, 

dizziness, and slurring, anything to that effect, and to come 

back and see him in two or three months.” 

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 Mr. Dunlap arrived in New Orleans on September 17, 1992, 

and he had a telephone conversation with his wife who was in 

Virginia. He informed her that he continued to experience 

headaches and that he did not feel well. On September 18, 

1992, while at work, Mr. Dunlap informed a colleague that he 

had a “leaking blood vessel that gave him a spot [of blood] on 

his head,” but that his doctor had given him permission to 

return to New Orleans. On September 20, 1992, after speaking 

with his wife by telephone, Mr. Dunlap decided to return to 

Virginia where he could be evaluated by Dr. Butts. 

 Mrs. Dunlap met her husband at the airport upon his 

return from New Orleans, and she called Dr. Holland from the 

airport to describe her husband’s condition, which had 

deteriorated. Dr. Holland stated that Mr. Dunlap could 

exercise one of the following options: visit an emergency 

room; come to Dr. Holland’s office in the morning where 

Holland would make arrangements for him to see Dr. Butts; or 

take medication Dr. Holland would prescribe. Dr. Holland 

informed the Dunlaps that it would be safe for Mr. Dunlap to 

wait until the next day before receiving medical treatment 

provided he did not have any other symptoms such as weakness 

on one side of his body, visual problems, or vomiting. 

 Mr. Dunlap decided to obtain the medication from a 

pharmacy, go home, and visit Dr. Holland the following 

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morning. After he returned to his home, Mr. Dunlap took the 

medication and went directly to bed. The next morning, Mrs. 

Dunlap was unable to awaken him. She immediately called 

emergency response personnel, and Mr. Dunlap was taken to a 

hospital where he was diagnosed with cerebral herniation 

secondary to subacute subdural hematoma. Mr. Dunlap’s blood 

clot had bled, expanded massively, and compressed his brain. 

Mrs. Dunlap was informed that Mr. Dunlap had less than a five 

percent chance of survival of an operation to relieve the 

pressure on his brain. After the operation, Mr. Dunlap 

remained in a coma for about two months and was ultimately 

placed in a health care facility for two years. 

 The plaintiff adduced expert testimony at trial that Dr. 

Butts breached the applicable standard of care owed to Mr. 

Dunlap and that this breach of the standard of care was a 

proximate cause of Mr. Dunlap’s injuries. Dr. Butts presented 

expert testimony that he complied with the applicable standard 

of care owed to Mr. Dunlap. Some of Dr. Butts’ expert 

witnesses’ opinions, however, were predicated upon Dr. Butts’ 

testimony that when he was alone with Mr. Dunlap, Dr. Butts 

gave certain oral instructions to Mr. Dunlap and that he 

warned Mr. Dunlap not to return to New Orleans. 

 At the conclusion of a lengthy trial, the jury returned 

the following verdict: “We, the jury, find in favor of the 

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plaintiff and fix damages at: $0. ZERO DOLLARS.” The trial 

court entered a judgment confirming the verdict, and the 

plaintiff appeals.1

III. 

A. 

 Code § 8.01-397 states in part: 

 “In an action by or against a person who, from 

any cause, is incapable of testifying, or by or 

against the committee, trustee, executor, 

administrator, heir, or other representative of the 

person so incapable of testifying, no judgment or 

decree shall be rendered in favor of an adverse or 

interested party founded on his uncorroborated 

testimony.” 

 The plaintiff, relying upon this statute, argues that the 

trial court erred by holding, as a matter of law, that Dr. 

Butts’ testimony, about his conversations with Mr. Dunlap when 

no one else was present, was corroborated. Continuing, the 

plaintiff argues that because of the existence of the 

physician/patient relationship, Dr. Butts was required to 

present evidence of a higher degree of corroboration than is 

required in most cases. 

 Initially, Dr. Butts argues that Code § 8.01-397 is not 

applicable in this proceeding because the jury ultimately 

returned a verdict in favor of the plaintiff and, thus, no 

 1

 Mr. Dunlap died after the final judgment order was 

entered, and Irene M. Diehl, administrator of his estate, was 

substituted as the plaintiff. 

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judgment was “rendered in favor of an adverse or interested 

party.” Dr. Butts’ argument is without merit because, under 

his analysis, a trial court would be required to wait until 

after the jury rendered a verdict before determining whether a 

party’s testimony must be corroborated. Certainly, Code 

§ 8.01-397 does not mandate this illogical procedure. 

B. 

 We find no merit in Dr. Butts’ contention that “[t]he 

Dead Man’s Statute was designed as a ‘shield’ to protect the 

decedent or incompetent party from fraudulent claims which 

that party, due to his incapacity, could not refute; it should 

therefore not be used as a ‘sword’ to silence the defense of 

an otherwise competent party.” Code § 8.01-397 is designed to 

prevent a litigant from having the benefit of his own 

testimony when, because of death or incapacity, the personal 

representative of another litigant has been deprived of the 

testimony of the decedent or incapacitated person. The 

statute substitutes a requirement that testimony be 

corroborated in place of the harsher common law rule which 

disqualified the surviving witness for interest. Vaughan v. 

Shank, 248 Va. 224, 229, 445 S.E.2d 127, 130 (1994); Hereford

v. Paytes, 226 Va. 604, 608, 311 S.E.2d 790, 792 (1984).2

 2

 We find no merit in Dr. Butts’ summary argument that 

Code § 8.01-397 violates traditional notions of due process or 

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C. 

 Dr. Butts argues that even if Code § 8.01-397 is 

applicable here, any error that the trial court committed is 

harmless and that his testimony was corroborated as a matter 

of law. We disagree. 

 We observed in Whitmer v. Marcum, 214 Va. 64, 67, 196 

S.E.2d 907, 909 (1973), that corroborating evidence “is such 

evidence as tends to confirm and strengthen the testimony of 

the witness sought to be corroborated — that is, such as tends 

to show the truth, or the probability of its truth.” 

Additionally, in Vaughan, 248 Va. at 229, 445 S.E.2d at 130, 

we stated the following principles which are equally pertinent 

here: 

 “To be deemed sufficient under Code § 8.01-397, 

the corroboration ‘must at least tend, “in some 

degree, of its own strength and independently, to 

support some essential allegation or issue raised by 

the pleadings [and] testified to by the [surviving] 

witness . . . which allegation or issue, if 

unsupported, would be fatal to the case.”’ 

Hereford, 226 Va. at 608, 311 S.E.2d at 792 

(alteration in original) (citation omitted). The 

corroborating evidence need not be provided by 

witnesses, but may be furnished by surrounding 

circumstances adequately established. Penn v. 

Manns, 221 Va. 88, 93, 267 S.E.2d 126, 130 (1980). 

 “There is no hard and fast rule that determines 

whether the requirement of corroboration has been 

met, and each case must be decided upon its own 

 

contravenes the Fourteenth Amendment to the Constitution of 

the United States and art. I, § 11 of the Constitution of the 

Commonwealth of Virginia. 

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facts and circumstances. Id. In a case involving 

parties between whom a confidential relationship 

existed at the time of the transaction relied on, a 

higher degree of corroboration may be required than 

in other transactions. Everton v. Askew, 199 Va. 

778, 782, 102 S.E.2d 156, 158 (1958).” 

 Without question, the patient and physician relationship 

that existed between Mr. Dunlap and Dr. Butts was a 

confidential relationship. See James v. Jane, 221 Va. 43, 50, 

282 S.E.2d 864, 867 (1980); Limbaugh v. Commonwealth, 149 Va. 

383, 396, 140 S.E. 133, 136 (1927). Thus, when, as here, a 

confidential relationship existed between the parties at the 

time of the transaction which gave rise to the cause of 

action, a higher degree of corroboration is necessary to 

satisfy the requirements of Code § 8.01-397. For example, we 

held in Nicholson v. Shockey, 192 Va. 270, 283, 64 S.E.2d 813, 

821 (1951), that an attorney/client relationship existed 

between a son (the attorney) and his mother (the client) and 

that Code § 8-286, the precursor to Code § 8.01-397, required 

that the son show a higher degree of corroboration because of 

the confidential relationship in existence at the time of the 

challenged transaction. Accord Vaughan, 248 Va. at 229, 445 

S.E.2d at 130; Seaboard Citizens Nat’l Bank of Norfolk v. 

Revere, 209 Va. 684, 690, 166 S.E.2d 258, 263 (1969); Everton

v. Askew, 199 Va. 778, 782, 102 S.E.2d 156, 158 (1958); Clay

v. Clay, 196 Va. 997, 1002, 86 S.E.2d 812, 815 (1955). 

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 As we have already stated, Dr. Butts was permitted to 

testify that when he and Mr. Dunlap were alone, Dr. Butts told 

Mr. Dunlap not to travel to New Orleans, but to go home and 

return to Dr. Butts’ office for a further evaluation in “a 

week-and-a-half.” Dr. Butts also testified that he told Mr. 

Dunlap to remain at home because “[I]f he goes out of town, 

he’s putting himself at an extra risk.” Dr. Butts’ purported 

corroboration of these statements consisted of the testimony 

of Mr. Dunlap’s former neighbor and Mr. Dunlap’s brother. The 

former neighbor testified that Mr. Dunlap “made a statement” 

that a doctor told him not to go to work for “a couple of 

weeks or whatever . . . it could have been a couple days.” 

Mr. Dunlap’s brother testified that Mrs. Dunlap said that a 

doctor had told her husband not to return to work. This 

evidence, along with other evidence of record, is simply not 

sufficient to provide the higher degree of corroboration 

required by Code § 8.01-397 and our precedent. 

IV. 

 The plaintiff argues that the trial court erred by 

submitting the following jury instruction to the jury: 

 “Contributory negligence is the failure to act 

as a reasonable person would have acted for his own 

safety under the circumstances of this case. A 

patient is contributorily [sic] negligent when he 

neglects his health following his physician’s 

treatment, even if that physician’s treatment was 

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negligent, and the patient may not recover for any 

damages resulting from his own neglect. 

 “If you believe by a preponderance of the 

evidence that Frank Dunlap was contributorily [sic] 

negligent, then you may only consider this in 

determining the amount of damages, if any.” 

 Dr. Butts, relying upon Lawrence v. Wirth, 226 Va. 408, 

309 S.E.2d 315 (1983), asserts the trial court correctly 

granted this jury instruction and that a plaintiff’s acts of 

contributory negligence can be used to decrease the amount of 

the plaintiff’s damages. 

 We hold that the trial court erred in granting this jury 

instruction. First, the jury instruction contains an 

erroneous and confusing statement of law because the 

instruction implies that the tort concepts of contributory 

negligence and mitigation of damages are identical concepts 

when, in fact, they are separate and distinct tort principles. 

Furthermore, the rule that we articulated in Lawrence has no 

application here because the admissible evidence of record 

simply did not permit a jury to find that Mr. Dunlap neglected 

his health after Dr. Butts’ alleged negligent treatment. 

V. 

 In view of our holdings, we need not consider Dr. Butts’ 

remaining arguments. We will reverse the judgment of the 

trial court and remand this case for a new trial on all 

issues. Upon remand, the trial court shall not admit any 

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testimony of Dr. Butts concerning conversations that he had 

with Mr. Dunlap unless Dr. Butts corroborates the 

conversations to the higher degree required by their 

confidential relationship. Nor shall the trial court admit 

any opinion testimony of Dr. Butts’ expert witnesses that rely 

upon conversations that Dr. Butts had with Mr. Dunlap unless 

the conversations have been corroborated to the higher degree 

specified above. Upon remand, the trial court shall not 

instruct the jury on contributory negligence or mitigation of 

damages. 

Reversed and remanded. 

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