COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys,* Huff and Athey

Argued at Virginia Beach, Virginia

KIMBERLY PRICE BURCH,

 ADMINISTRATOR OF THE ESTATE

 OF JOAN SHEETS ISON, DECEASED

MEMORANDUM OPINION** BY

v. Record No. 0194-23-1 JUDGE ROBERT J. HUMPHREYS

MARCH 19, 2024

JEFF SENSENIG, D.O., ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS

Tyneka L.D. Flythe, Judge

Lee Livingston (Anthony T. Greene; Livingston Law Group PLLC,

on briefs), for appellant.

Elaine D. McCafferty (Donna L. Foster; Woods Rogers Vandeventer 

Black PLC, on brief), for appellee.

This appeal arises out of a defense verdict in a medical malpractice case. Kimberly 

Burch, the administrator of the estate of Joan Ison, sued Dr. Jeff Sensenig and other medical 

professionals for failing to diagnose Ison with a symptomatic aortic aneurysm that ruptured and 

caused her death. On appeal, Burch argues that the circuit court erred in refusing her “empty 

chair” jury instruction, in giving two “mere happening” instructions, in precluding her from 

cross-examining a defense expert on certain topics, and in excluding certain statistical evidence. 

*

Judge Humphreys prepared and the Court adopted the opinion in 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(A).

UNPUBLISHED
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BACKGROUND

On June 10, 2016, Joan Ison went to her primary care physician (PCP) complaining of chest 

pain. Ison had a known aortic aneurysm and x-rays obtained on the order of her PCP indicated that 

her aneurysm may have changed. Accordingly, Ison went to the emergency room for more detailed 

testing. At the ER, Ison presented with severe—10 out of 10—chest pain and mid-back pain. The 

ER doctor treating Ison was Dr. Jeff Sensenig, who reviewed her medical history, performed a 

physical exam, and ordered blood work and a CT scan. The CT scan—interpreted by another 

doctor, a radiologist—revealed that the aneurysm was not “significantly changed” when compared 

to a CT scan conducted the previous year. Sensenig called the vascular practice treating Ison and

spoke with the “on-call” doctor to relay the details of the new CT scan. The on-call doctor 

recommended that Ison follow-up with her treating vascular physician the next week but did not 

believe that the aneurysm was causing Ison’s symptoms. Sensenig accordingly discharged Ison 

from the ER and told her to return if her symptoms worsened.

Eight days later, Ison returned to the ER complaining again of severe chest and back pain. 

Ison reported that the pain level was the same as the last visit. Sensenig again ordered a CT scan—

though this specific scan was different from the previous CT scan in its diagnostic value for 

aneurysms. A second radiologist reviewed this CT scan and concluded that there was no change in 

Ison’s aneurysm from June 10. Sensenig did not call Ison’s vascular practice on this occasion. 

Sensenig reviewed Ison’s chart which revealed that her vascular surgeon had canceled the follow-up 

appointment after Ison’s first ER visit. Sensenig decided to admit Ison to the hospital. The 

hospitalist on call then became Ison’s treating physician until the next morning when another 

hospitalist took over Ison’s care. Prior to transferring Ison’s care to the hospitalist, Sensenig 

discussed Ison’s visit and her previous medical history, including the fact that Sensenig called 

Ison’s vascular practice on the 10th. On June 20, a CT scan was ordered that revealed that Ison’s 
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aneurysm had ruptured or was leaking. Because the hospital where Sensenig worked and where 

Ison was admitted did not have the capacity to perform an aneurysm repair surgery, the hospitalists 

sought to transfer Ison to another hospital, but she died before the transfer could be made. 

Burch, as the administrator of Ison’s estate, filed a complaint against all of the doctors 

involved in Ison’s care; however, she settled or non-suited the cases against all of the 

doctor-defendants except for Sensenig. Pretrial, Burch designated around a dozen statistical studies 

that she sought to introduce into evidence on the survivability of aneurysm repair surgery. At a 

pretrial motion in limine, Sensenig moved to exclude the introduction of the raw statistical data from 

these studies. The circuit court granted this motion.

Additionally, Dr. Lavingia, defendant’s causation expert, testified at trial that Ison was a 

high-risk candidate for repair surgery and that it was his opinion, held to a fair degree of medical 

probability, that she would have suffered a complication from the surgery. Dr. Lavingia also opined

that Ison would not have had the surgery even if Sensenig had consulted with a vascular surgeon. 

Burch objected to this testimony on the grounds that it was speculative. The circuit court overruled 

this objection.

On cross-examination of Dr. Lavingia, Burch sought to ask him whether he would have 

wanted to know the level of pain the patient was in and whether Ison’s symptoms indicated a 

symptomatic aneurysm. Sensenig objected as the questions were outside the scope of direct 

examination, and the circuit court agreed and sustained the objection. Burch never proffered what 

she anticipated Dr. Lavingia’s answers to these questions would be.

At the close of the evidence, the circuit court ruled on the parties’ proposed jury instructions. 

Over Burch’s objection, the circuit court refused to give a so-called “empty chair” instruction that 

read, “You may not consider whether another doctor or person was negligent or contributed to Joan 

Ison’s injuries and death.” Burch also objected to the circuit court’s decision to give two “mere 
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happening” instructions. Instruction 18 instructed the jury that “The fact that Joan Sheets Ison died 

does not, of itself, entitle the plaintiff to recover.” Instruction 19 instructed the jury that “The fact 

that a doctor’s efforts on behalf of his or her patient were unsuccessful does not, by itself, establish 

negligence.” 

The jury returned a defense verdict, and Burch now appeals, assigning error to the circuit 

court’s rulings on the jury instructions, the direct and cross-examination of Dr. Lavingia, and the 

motion in limine regarding statistical evidence. 

ANALYSIS

I. The Jury Instructions

Burch assigns error to the circuit court’s decisions to deny her proposed “empty chair” 

instruction and to grant Instructions 18 and 19, the so called “mere happening” instructions. 

“The purpose of any jury instruction is to inform the jury of the law guiding their 

deliberations and verdict.” Keen v. Commonwealth, 24 Va. App. 795, 807 (1997). Whether to give 

or deny jury instructions “rest[s] in the sound discretion of the trial court.” Hilton v. 

Commonwealth, 293 Va. 293, 302 (2017) (alteration in original). On appeal, “[a] reviewing court’s 

responsibility in reviewing jury instructions is ‘to see that the law has been clearly stated and that 

the instructions cover all issues which the evidence fairly raises.’” Chapman v. Commonwealth, 56 

Va. App. 725, 735 (2010) (quoting Chibikom v. Commonwealth, 54 Va. App. 422, 425 (2009)). 

The Court, therefore, reviews de novo “whether a jury instruction accurately states the relevant 

law.” Lawlor v. Commonwealth, 285 Va. 187, 228 (2013) (quoting Orthopedic & Sports Physical 

Therapy Assocs., Inc. v. Summit Grp. Props., LLC, 283 Va. 777, 782 (2012)). Further, “[w]hen 

considering whether a trial court abused its discretion by denying a [party]’s proffered instruction, 

‘we view the facts relevant to the determination of that issue in the light most favorable to [that 

party].’” Holloman v. Commonwealth, 65 Va. App. 147, 174 (2015) (quoting Commonwealth v. 
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Cary, 271 Va. 87, 91 (2006)). However, “[w]hen granted instructions fully and fairly cover a 

principle of law, a trial court does not abuse its discretion in refusing another instruction relating 

to the same legal principle.” Stockton v. Commonwealth, 227 Va. 124, 145 (1984).

Burch first argues that the circuit court erred by refusing her “empty chair” instruction. 

Burch’s proposed instruction instructed the jury that “You may not consider whether another doctor 

or person was negligent or contributed to Joan Ison’s injuries and death.” Burch cited Atkinson v. 

Scheer, 256 Va. 448 (1998), as her support for her proposed jury instruction. In Atkinson, the 

Supreme Court held that the negligence of a non-party physician does not absolve a party physician 

unless the non-party’s negligence was a “superseding intervening cause.” Id. at 455 (“[The 

non-party’s] failure to act did not entirely sever the chain of proximate causation set in motion by 

[the party’s] alleged negligence.”). In restating the plaintiff’s burden, the Atkinson Court noted that 

the plaintiff was entitled to recover if they proved that the party-defendant’s negligence, “even in 

the slightest degree . . . , caused [the plaintiff’s] injuries.” Id. The legal principle at issue covered 

by Burch’s proposed instruction is therefore causation.

In this case, the jury was fully and fairly instructed on the issue of causation. Instruction 

10 instructed the jury to answer “if the defendant was negligent, was his negligence a proximate 

cause” of Ison’s death. (Emphasis added). Instruction 11 instructed the jury to find for Burch if 

she proved that “Dr. Sensenig’s negligence was a proximate cause of Joan Ison’s death.” 

(Emphasis added). Instruction 15 informed the jury that “There may be more than one proximate 

cause of death. If the negligence of a defendant proximately caused the death of Joan Ison, the 

negligence of the defendant is a proximate cause of Joan Ison’s death even if there were other 

acts or omissions that caused Joan Ison’s death.” The jury was fully and fairly informed of the 

relevant legal principle of causation, and the circuit court was not required as a matter of law to 

provide an additional instruction that was cumulative of the instructions already given. 
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Burch also appeals the circuit court’s decision to give two “mere happening” instructions to 

the jury. Specifically, Burch objected to Instructions 18 and 19 which read, respectively: “The fact 

that Joan Sheets Ison died does not, of itself, entitle the plaintiff to recover[,]” and “The fact that a 

doctor’s efforts on behalf of his or her patient were unsuccessful does not, by itself, establish 

negligence.” Burch argues that Instruction 19 was 1) argumentative, 2) unsupported by the law, 

3) misleading, and 4) cumulative. On appeal, Burch does not argue that Instruction 18 was 

argumentative, unsupported, or misleading, but simply cumulative.

As a threshold issue, Instructions 18 and 19 are, in the abstract, correct statements of law. 

Instruction 18 correctly states that injury alone does not entitle the plaintiff to recover; Instruction 

19 similarly states that a doctor is not an insurer or guarantor of his or her patient’s outcomes. See 

Dixon v. Sublett, 295 Va. 60, 67 (2018) (holding that a physician is not an insurer of diagnosis and 

treatment). Burch’s argument that Instruction 19 is unsupported by law is not compelling.

Where the circuit court has correctly informed the jury on the law, this Court will only 

reverse where the instruction given “may reasonably be regarded as having a tendency to mislead 

the jury.” H.W. Miller Trucking Co. v. Flood, 203 Va. 934, 937 (1962); see also Flanagan v. 

Harvey, 160 Va. 214, 223 (1933) (reversing lower court for giving a 250-word run-on sentence 

jury instruction that, though correct on its face, did not fully explain the appropriate mens rea 

requirement for the given case). The Court “will not find error when a jury was instructed 

correctly as to the law and the surrounding circumstances assure us that the jury was not confused 

about its obligations.” Castle v. Lester, 272 Va. 591, 605 (2006).

In this case, the instructions given were not misleading. Burch argues that Instruction 

19’s use of the word “efforts” meant that the jury could have interpreted the instruction as 

excusing the physician’s negligence so long as the physician put a good-faith effort forward. 

Burch cites Teh Len Chu v. Fairfax Emergency Med. Assocs., Ltd., 223 Va. 383, 384 (1982), 
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wherein the Supreme Court reversed a circuit court for instructing the jury that a physician “was 

not liable for damages resulting from his honest mistake or a bona fide error in judgment.” The 

Supreme Court reversed the circuit court because it is not the physician’s good faith that dictates 

what the applicable standard of care should be. Id. at 385. Burch contends that the word 

“efforts” implies “an honest or excusable mistake.” Burch’s argument stretches the language of 

Instruction 19 too far. Unlike the instruction in Teh Len Chu, Instruction 19 does not suggest 

that efforts made by the physician absolve the physician of liability if they deviate from the 

standard of care; instead, Instruction 19 informs the jury that the lack of a good outcome, 

standing alone, does not prove negligence.1

Finally, the mere fact that a jury instruction is cumulative does not necessarily merit 

reversal. Though there are many instances of our Court and the Virginia Supreme Court 

affirming circuit courts for refusing cumulative instructions, Burch has not pointed to a single 

instance of a Virginia appellate court reversing a circuit court for giving a cumulative instruction 

that is otherwise proper. The reason, of course, is that we presume that the jury follows the 

instructions as given and any error in giving a correct though cumulative instruction would 

necessarily be harmless. See Gilliam v. Immel, 293 Va. 18, 26 (2017).

Accordingly, because the circuit court has broad discretion in fashioning jury 

instructions, and because the jury was fully and fairly instructed on the law and no instructions 

tended to mislead the jury, the circuit court did not err in its rulings on the “empty chair” or 

“mere happening” instructions.

1 We also find persuasive our Supreme Court’s decision in Chapple-Brooks v. Nguyen,

No. 161812, slip op. at 6 (Va. Dec. 28, 2017) (order), where the Court held that the language of 

Instruction 19 was not “argumentative and did not have a tendency to mislead or confuse the 

jury.” 
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II. Dr. Lavingia’s Testimony

Burch also assigns error to the circuit court’s rulings permitting Dr. Lavingia to testify to the 

possibility that Ison would have suffered a complication from a thoracic aortic repair surgery and 

prohibiting Burch from cross-examining Dr. Lavingia on standard of care questions. 

First, Burch argues on appeal that Dr. Lavingia should not have been permitted to testify as 

to the “possibility” that Ison would have suffered a complication from an aneurysm repair surgery. 

Burch cites Fairfax Hospital System, Inc. v. Curtis, 249 Va. 531 (1995), in support of this argument. 

In Curtis, the Supreme Court prohibited a doctor from testifying that there was “a possibility” that 

certain non-negligent factors could have contributed to the decedent’s death. Id. at 536. The Court 

reasoned that an expert opinion must be given to a reasonable degree of medical probability in order 

to not be speculative and that the expert in that case could not do so but could only speak to 

“possibilities.” Id. In contrast, Dr. Lavingia’s testimony in this case was not that the possible risk 

of complications could have caused Ison’s death regardless of whether the surgery took place, but 

that, to reasonable degree of medical probability, these risks of complications meant that a vascular 

doctor would not have operated on Ison at all in the first place. This testimony is not speculative, 

and the circuit court did not err in overruling Burch’s objections.

Second, Burch argues that the circuit court erred in foreclosing cross examination of

Dr. Lavingia. This assignment of error is waived because Burch failed to proffer what the expected 

testimony would be. 

Burch sought to cross-examine Sensenig’s causation expert, Dr. Lavingia, on certain facts 

that Burch believed would demonstrate that Ison was displaying classic symptoms of a symptomatic 

aortic aneurysm that would have led to surgery. Specifically, Burch sought to ask the following 

questions: “Doctor, as a vascular surgeon, . . . if the patient had come in with 10 out of 10 pain as 

opposed to 4 out of 10 pain, is that a fact that you would want to know about a patient with a known 
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thoracic aortic aneurysm?” Second, “Doctor, . . . Would it be your expectation that a vascular 

surgeon would know that chest or back pain in the presence of an enlarged thoracic aorta is a 

predictor of aortic rupture?” When the circuit court sustained Sensenig’s scope objection to both 

questions, Burch did not proffer what the expected answer to the questions would be. As noted 

above, a proffer must be made in order for this Court to evaluate whether the circuit court 

committed prejudicial error. The record is completely devoid of what Dr. Lavingia’s response to 

these questions would have been. 

Because Burch did not proffer what the excluded testimony would have been, this court has 

no “basis for adjudication” of Burch’s assignment of error, and we affirm the ruling of the circuit 

court. Whittaker v. Commonwealth, 217 Va. 966, 968 (1977).

III. Raw Statistical Data

Finally, Burch argues that the circuit court erred in excluding certain “raw statistical

evidence.” We review the circuit court’s decision to exclude or admit evidence for an abuse of 

discretion. “Only when reasonable jurists could not differ can we say an abuse of discretion has 

occurred.” Thomas v. Commonwealth, 44 Va. App. 741, 753, adopted on reh’g en banc, 45 

Va. App. 811 (2005). 

Evidence is relevant if it has “any tendency to make the existence of any fact in issue more 

probable or less probable than it would be without the evidence.” Va. R. Evid. 2:402. Additionally, 

relevant evidence may be excluded if “the probative value of the evidence is substantially 

outweighed by . . . its likelihood of confusing or misleading the trier of fact.” Va. R. Evid. 2:403. 

Raw statistical data, standing alone and without further context, adds minimal probative value and 

carries a high risk of confusion of, or misuse by, the jury.2 The circuit court ruled that it only 

2 As Mark Twain wrote, “There are three kinds of lies: lies, damned lies, and statistics.” 

Mark Twain, Chapters from My Autobiography (1906). Without context, raw statistics can be 

accurate, though misleading. For example, the average adult has one testicle.
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excluded raw statistical data, not “other statements from an article that also contains raw statistical 

data,” nor “the literature itself.” Without any context or connection to the case at hand, statistics add 

little, if any, probative value. See Sanitary Grocery Co. v. Steinbrecher, 183 Va. 495, 499 (1945) 

(holding that evidence that 1,000 customers per day visited grocery store without injury was 

inadmissible because it was misleading and not probative). We cannot say that the circuit court’s 

exclusion of the raw statistical data was unreasonable, and we therefore affirm the ruling of the 

circuit court.

CONCLUSION

Given the circuit court’s broad discretion in fashioning jury instructions, the circuit court did 

not err in refusing Burch’s cumulative empty chair instruction as the legal principle of multiple 

proximate causes was already detailed by the other instructions. Additionally, the circuit court did 

not err in granting Sensenig’s mere happening instructions as they correctly stated the law, and the 

jury could not have been misled by the instructions. Furthermore, the circuit court did not err in 

permitting Dr. Lavingia to testify to the risk of complications as it was not speculative for the 

inference that, even assuming Sensenig’s negligence, the surgery would not have occurred. Burch 

procedurally defaulted her assignment of error related to the exclusion of certain cross-examination 

of Dr. Lavingia by failing to include a proffer of what she expected Dr. Lavingia’s testimony would 

be. Finally, the circuit court did not err in excluding “raw statistical data” because such data, 

standing alone, is of minimal probative value. Accordingly, we affirm the judgment of the circuit 

court.3

Affirmed.

3 Because we affirm the circuit court, we do not reach Sensenig’s cross-assignment of 

error relating to the circuit court’s jury instruction on Code § 8.01-397.