PRESENT: All the Justices 

PAMELA K. PETTUS, EXECUTOR OF THE 

ESTATE OF REGINALD H. PETTUS, DECEASED 

v. Record No. 040915 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 January 14, 2005 

IRVING S. GOTTFRIED, M.D., P.C., ET AL. 

FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY 

Joseph E. Spruill, Jr., Judge Designate 

 In this appeal, we consider whether the circuit court erred 

in permitting the defendants to introduce into evidence certain 

deposition testimony of the decedent’s treating physicians. 

 On March 17, 2000, plaintiff’s decedent, Reginald H. 

Pettus, arrived at Southside Community Hospital (the hospital) 

in Farmville complaining of chest pain. Dr. Robert B. Evans, an 

emergency room physician, treated Pettus on his arrival. Dr. 

Evans administered oxygen to Pettus, gave him nitroglycerin, and 

ordered several tests, including an electrocardiogram (EKG). 

Dr. Evans reviewed the EKG results, which showed an “atrial 

flutter” that was not present on an EKG taken a year earlier. 

Uncertain whether Pettus should be admitted to the hospital, Dr. 

Evans called Dr. Irving S. Gottfried, who previously had treated 

Pettus, and requested that Dr. Gottfried examine him. 

 Dr. Gottfried is a gastroenterologist who, one year before 

the events at issue, had reviewed an EKG performed on Pettus. 

When called to the hospital by Dr. Evans, Dr. Gottfried examined 

Pettus, evaluated the EKG ordered by Dr. Evans, and released 
2

Pettus with orders to return for a “follow up” appointment on 

March 20, 2000. 

 On March 20, 2000, Dr. Girish Purohit, a cardiologist, 

admitted Pettus to the hospital. Pettus was not experiencing 

chest pain at the time of his admission. He stayed in the 

hospital overnight and received an echocardiogram the next 

morning. 

Later that morning, Pettus became restless and began 

“wheezing.” Dr. Purohit altered Pettus’s medications and 

ordered a neurology consultation to evaluate Pettus’s mental 

status. A few hours later, Pettus had a seizure, stopped 

breathing, and ultimately died. 

 Pamela K. Pettus (the plaintiff), filed a wrongful death 

action against Dr. Gottfried and his professional corporation, 

and certain other defendants,1

 alleging that Pettus died as a 

result of negligent medical treatment he received at the 

hospital. The plaintiff contended that Dr. Gottfried 

incorrectly diagnosed Pettus’s chest pain and negligently 

discharged him from the hospital at the time of an impending 

myocardial infarction, or heart attack. Dr. Gottfried filed 

 1

 The other named defendants, Drs. Evans and Purohit, and 

their corporate employers, were dismissed by nonsuit before 

trial. 
3

grounds of defense, in which he stated that he complied with the 

applicable standard of care and denied that his conduct caused 

Pettus’s death. 

 At trial, the plaintiff presented evidence from two 

physicians who qualified as expert witnesses and testified 

before the jury. The plaintiff also read into evidence portions 

of the discovery depositions of Drs. Evans, Purohit, and 

Gottfried.2

 Before the defendants presented their case, the plaintiff 

asked the circuit court to exclude portions of the deposition 

testimony that Dr. Gottfried had designated for introduction 

into evidence. The plaintiff objected to the admission of the 

following testimony by Dr. Purohit:3

Q: And it was your opinion that that was a central 

nervous system event? 

A: It could have been, yes. 

Q: Do you have an opinion within the reasonable 

degree of medical certainty what the cause of Mr. 

Pettus’ death was? 

A: No. In fact, that’s the reason why many times we 

feel that unless an autopsy is done, it’s really 

difficult to know what may have happened. 

 2

 Before trial, the parties designated the portions of 

deposition testimony they intended to introduce. 

3

 The plaintiff objected to a second portion of Dr. 

Purohit’s deposition testimony, but does not address that 

portion on appeal. 
4

The plaintiff argued that this deposition testimony was 

inadmissible because it was speculative and contained expert 

opinion testimony that was not stated to a reasonable degree of 

medical probability. The circuit court overruled the 

plaintiff's objection, and allowed Dr. Gottfried to read the 

above testimony to the jury. 

 The plaintiff also objected to several portions of Dr. 

Evans’s deposition that Dr. Gottfried intended to introduce into 

evidence.4

 The plaintiff objected to the following exchange: 

Q: Do you know whether or not Mr. Pettus was still 

experiencing chest pain at the time of discharge? 

A: I know my nurses, and I’m pretty sure that if he 

had had chest pain, it would have been brought to 

either my attention or Dr. Gottfried [sic] 

attention. 

. . . . 

Q: Prior to Dr. Gottfried getting to the hospital, 

had you formed any intention of trying to have 

Mr. Pettus admitted or running further tests? 

A: I felt like he could probably go either way, but 

it would be best to be evaluated by a person who 

knew him. 

Q: Going either way being what? 

A: Possibly an admission, depending on what Dr. 

Gottfried knew about him versus going home for 

outpatient follow-up. 

 4

 The excerpt that follows is the only portion of Dr. Evans’ 

deposition that the plaintiff addresses in this appeal. 
5

The plaintiff argued that the testimony was speculative, and 

also contended that the documentation provision of Code § 8.01-

399(B) barred its admission. The circuit court overruled the 

plaintiff's objection, concluding that the testimony was a 

“complete statement” of Dr. Evans’s actions and served to 

explain matters that were already in evidence. 

 Dr. Gottfried read all the contested portions of deposition 

testimony to the jury, and he also testified in his own defense. 

The jury returned a verdict in favor of Dr. Gottfried and his 

professional corporation, and the circuit court entered final 

judgment in accordance with the jury verdict. The plaintiff 

appeals. 

 The plaintiff argues that the circuit court erred in 

admitting into evidence the above-referenced portions of Dr. 

Purohit’s deposition because they were expert opinions that were 

not stated to a reasonable degree of medical probability. The 

plaintiff argues that the testimony therefore was speculative, 

and she further asserts that the testimony failed to meet the 

provisions of Code § 8.01-399(B) relating to documentation. 

 The plaintiff also contends that the circuit court erred in 

admitting the above-referenced segments of Dr. Evans’s 

deposition testimony. The plaintiff argues that Dr. Evans’s 

testimony, that his nurses would have noted any complaint of 

pain made by Pettus at the time he was discharged, was 
6

speculative because Dr. Evans did not have any personal 

knowledge concerning the nurses’ actions. The plaintiff also 

maintains that the circuit court erred in admitting Dr. Evans’s 

testimony whether he intended to have Pettus admitted to the 

hospital. She alleges that this testimony was inadmissible 

because it was speculative and was not supported by 

documentation in Pettus’s medical records. 

 In response, Dr. Gottfried argues that the plaintiff waived 

her objection to the admissibility of Dr. Purohit’s and Dr. 

Evans’s testimony because she offered testimony of the same 

character in her case-in-chief. Dr. Gottfried asserts that the 

plaintiff introduced portions of Dr. Purohit’s deposition 

testimony expressing an opinion concerning the cause of Pettus’s 

death that were not stated to a reasonable degree of medical 

probability, including the following testimony: 

Q: And what is the significance of myocardial 

ischemia if in fact the patient had myocardial 

ischemia? 

A: It just means that there are changes in the 

electrocardiogram which may reflect that the 

heart muscle may not be getting enough blood, and 

therefore, oxygen. 

Q: And one of the causes of not getting enough blood 

could be – 

A: Coronary artery disease, yes. 

. . . . 

Q: And that’s the atrial flutter? 
7

A: Yes. All these things are written here in the 

same order, so the reading was atrial flutter and 

that there are some changes that are subtle, but 

they do suggest that there may have been a heart 

attack affecting the inferior wall or the bottom 

part of the heart. 

Regarding Dr. Evans’s testimony, Dr. Gottfried asserts that 

because Dr. Evans’s duties included evaluating whether a patient 

required admission to the hospital, Dr. Evans’s deposition 

testimony on this subject was admissible. Dr. Gottfried also 

argues that because the plaintiff introduced portions of Dr. 

Evans’s testimony that were not documented in the medical 

record, the plaintiff has waived her objection to the disputed 

portions of Dr. Evans’s testimony. Dr. Gottfried points to the 

following exchanges, among others, to illustrate his contention 

that the plaintiff introduced evidence of the same character as 

the evidence that she now challenges. 

Q: Given nitroglycerine. Does that say with little 

 improvement? 

A. Times one with a little improvement. 

Q: What significan[ce], if any, did that have for 

you in making a differential diagnosis? 

A: Well, one would expect, although nothing in 

medicine is absolute, that nitroglycerine would 

improve cardiac chest pain. 

. . . . 

Q: Shortness of breath? 

A: Uh-huh (yes). 
8

Q: That would be consistent also with a cardiac 

problem? 

A: It could. 

. . . . 

Q: And what was your interpretation of the EKG? 

A: That he was in a flutter pattern, had perhaps 

some ischemic changes to his EKG. 

Q: And where were the ischemic changes located on 

the EKG? 

A: V1, V2, V3, little bit of V4 and V5. 

Q: And what was the significance to you of the 

ischemic changes in those areas? 

A: Well, it could certainly be an indication that 

something cardiac was going on. 

Dr. Gottfried also argues that the evidence he introduced 

from Dr. Purohit’s and Dr. Evans’s depositions complied with the 

requirements of Code § 8.01-399(B). Dr. Gottfried asserts that 

both doctors testified as Pettus’s treating physicians rather 

than as expert witnesses and did not discuss a diagnosis. Thus, 

Dr. Gottfried contends that their testimony was not required to 

meet the standard of a reasonable degree of medical probability. 

Dr. Gottfried also maintains that both doctors’ testimony was 

limited to the facts surrounding their treatment of Pettus, that 

these facts were consistent with the medical records and, thus, 

that the testimony was admissible under the statute. 
9

 We begin our consideration of these issues by stating the 

provisions of Code § 8.01-399(B) that are relevant to this 

appeal. That section provides, in material part: 

B. If the physical or mental condition of the patient 

is at issue in a civil action, the diagnosis or 

treatment plan of the practitioner, as documented in 

the patient’s medical record, during the time of the 

practitioner’s treatment, together with the facts 

communicated to, or otherwise learned by, such 

practitioner in connection with such attendance, 

examination or treatment shall be disclosed but only 

in discovery pursuant to the Rules of Court or through 

testimony at the trial of the action. . . . Only 

diagnosis offered to a reasonable degree of medical 

probability shall be admissible at trial. 

The purpose of this statute is to define the scope of 

discovery and trial testimony that may be required of a treating 

physician when the physical or mental condition of a patient is 

at issue in a civil action. The plain language of the statute 

places within the scope of discoverable and admissible 

information the diagnosis or treatment plan of the treating 

physician as documented in the patient’s medical record. Also 

within the scope of discoverable and admissible information are 

the facts communicated to the treating physician and any other 

facts learned by that physician in connection with his care of 

the patient. However, when a party seeks at trial to admit 

evidence of a treating physician’s diagnosis, such evidence is 

admissible only if it is offered to a reasonable degree of 

medical probability. 
10

We first consider Dr. Purohit’s testimony that Pettus’s 

mental disorientation “could have been” a central nervous system 

event. Dr. Purohit’s answer was given in response to defense 

counsel’s question whether during the course of treating Pettus, 

Dr. Purohit had formed an opinion about the cause of Pettus’s 

abrupt change in mental status. Viewed in this context, Dr. 

Purohit’s answer was factual in nature because it served to 

explain the impressions and conclusions he reached while 

treating Pettus. The answer did not impart an expert medical 

opinion at trial because Dr. Purohit was not stating his present 

opinion regarding Pettus’s mental disorientation and the 

functioning of his central nervous system. Likewise, Dr. 

Purohit was not providing a diagnosis at this point in his 

testimony. Thus, the testimony was not subject to the general 

rule that a medical expert opinion must be rendered to a 

reasonable degree of medical probability. See Code § 8.01-

399(B); State Farm Mut. Auto. Ins. Co. v. Kendrick, 254 Va. 206, 

208-09, 491 S.E.2d 286, 287 (1997); Fairfax Hosp. System v. 

Curtis, 249 Va. 531, 536, 457 S.E.2d 66, 69 (1995); Spruill v. 

Commonwealth, 221 Va. 475, 479, 271 S.E.2d 419, 421 (1980). 

We disagree with the plaintiff’s contention that Dr. 

Purohit’s answer was nevertheless inadmissible under Code 

§ 8.01-399(B) because it deviated from the entries in his 

medical records. The medical records prepared by Dr. Purohit 
11

refer to the possibility of a central nervous system embolic 

event. Therefore, any distinction to be drawn between this 

written entry and Dr. Purohit’s testimony did not affect the 

admissibility of the testimony but was a proper subject for 

cross-examination of the witness. 

We next consider Dr. Purohit’s response to defense 

counsel’s question, “Do you have an opinion within a reasonable 

degree of medical certainty what the cause of Mr. Pettus’ death 

was?” After responding that he did not, Dr. Purohit then added, 

“In fact, that’s the reason why many times we feel that unless 

an autopsy is done, it’s really difficult to know what may have 

happened.” This statement did not address Dr. Purohit’s actions 

and impressions formed during the course of his treatment of 

Pettus. Instead, the statement indicated Dr. Purohit’s present 

opinion that, in many cases, he and other physicians believe 

that an autopsy is necessary to determine the cause of a 

patient’s death. Thus, this answer offered an expert opinion 

that was speculative in nature and inadmissible because it was 

not stated to a reasonable degree of medical probability. See

John v. Im, 263 Va. 315, 320, 559 S.E.2d 694, 696 (2002); 

Kendrick, 254 Va. at 208-09, 491 S.E.2d at 287; Curtis, 249 Va. 

at 536, 457 S.E.2d at 69; Spruill, 221 Va. at 479, 271 S.E.2d at 

421. 
12

We find no merit in the defendants’ contention that the 

plaintiff is barred from challenging the admissibility of this 

“autopsy” opinion because she offered evidence of the same 

character when she examined Dr. Purohit as a witness in the 

plaintiff’s own case. The scope of the “same character” rule is 

not as broad as the defendants contend. 

The general rule is that when a party unsuccessfully 

objects to evidence that he considers improper but introduces on 

his own behalf evidence of the same character, he waives his 

objection to the other party’s use of that evidence. DrinkardNuckols v. Andrews, 269 Va. ___, ___, ___ S.E.2d ___, ___ (2004) 

(decided today); Combs v. Norfolk & Western Ry. Co., 256 Va. 

490, 499, 507 S.E.2d 355, 360 (1998); Hubbard v. Commonwealth, 

243 Va. 1, 9, 413 S.E.2d 875, 879 (1992). Although the rule is 

most often applied in cases when the party making the objection 

later introduces the same evidence, “it is properly and 

logically applicable in any case, regardless of the order of 

introduction, if the party who has brought out the evidence in 

question, or who has permitted it to be brought out, can be 

fairly held responsible for its presence in the case.” Whitten 

v. McClelland, 137 Va. 726, 741, 120 S.E. 146, 150 (1923). 

The rule, however, is not applicable to matters elicited in 

the cross-examination of a witness or in the introduction of 

rebuttal evidence. Drinkard-Nuckols, 269 Va. at ___, ___ S.E.2d 
13

at ___ ; Snead v. Commonwealth, 138 Va. 787, 801, 121 S.E.2d 82, 

86 (1924); see Brooks v. Bankson, 248 Va. 197, 207, 445 S.E.2d 

473, 478 (1994); Combs, 256 Va. at 499, 507 S.E.2d at 360. We 

generally have applied the rule as a waiver of a party’s 

objection to the admission of certain evidence when that party 

has elicited evidence dealing with the same subject as part of 

his own case-in-chief. See, e.g., Drinkard-Nuckols, 269 Va. at 

___, ___ S.E.2d at ___ (plaintiff’s use of testimony regarding 

physicians’ expectations created waiver of objection to 

defendant’s use of testimony on same subject); Combs, 256 Va. at 

499, 507 S.E.2d at 360 (plaintiff’s use of same exhibits in 

presenting demonstrative evidence created waiver of objection to 

defendant’s use of those exhibits in presenting evidence); 

Hubbard, 243 Va. at 9-10, 413 S.E.2d at 879 (defendant’s use of 

reconstruction opinion evidence regarding speed of defendant’s 

vehicle created waiver of objection to Commonwealth’s use of 

evidence on same subject). But see, e.g., Hoier v. Noel, 199 

Va. 151, 155, 98 S.E.2d 673, 676 (1957) (plaintiff's 

introduction as rebuttal evidence testimony regarding 

defendant's driving habits created waiver of objection to 

defendant's introduction of testimony on same subject). 

The defendants, however, effectively ask us to enlarge the 

rule’s scope to apply this waiver principle to any purported 

violation of the same rule of evidence even when the subject 
14

matter of the testimony or exhibit at issue is not the same. We 

decline the defendant’s request because the rule properly 

focuses on a party’s introduction of evidence on the same 

subject and was never intended to create a waiver permitting the 

consideration of inadmissible evidence on a different subject. 

We will not apply the rule in distortion of its purpose. See

Brooks, 248 Va. at 207, 455 S.E.2d at 479. Thus, we conclude 

that the plaintiff’s presentation of evidence from Dr. Purohit 

on the subjects of myocardial ischemia, coronary artery disease, 

and atrial flutter did not constitute a waiver of her objection 

to his opinion testimony concerning the need for an autopsy, and 

that the circuit court erred in admitting this opinion 

testimony.5

We turn now to consider the circuit court’s decision 

overruling the plaintiff’s objections to Dr. Evans’s testimony. 

The first objection addressed Dr. Evans’s testimony that he knew 

his nurses and was “pretty sure” that they would have told him 

if Pettus had complained of chest pain at the time of his 

discharge. We agree with the plaintiff that this testimony was 

inadmissible because it was purely speculative and was not based 

 5

 Because the plaintiff’s evidence did not address the 

subject of autopsies and thus did not create a waiver of her 

earlier objection to Dr. Purohit’s testimony on that subject, we 

need not consider whether the testimony she introduced without 

objection from the defendants contained expert opinions not 

stated to a reasonable degree of medical probability. 
15

on any information concerning Pettus’s complaints of pain that 

Dr. Evans received from his nurses. See Brown v. Corbin, 244 

Va. 528, 531-33, 423 S.E.2d 176, 178-79 (1992). 

We find no merit in the defendants’ contention that the 

plaintiff waived any objection to the admission of this evidence 

by eliciting from Dr. Evans the above-quoted testimony 

concerning chest pain, dementia, and the significance of 

Pettus’s EKG results. These matters did not address the subject 

whether Dr. Evans’s nurses accurately reported any complaints of 

chest pain made by Pettus at the time of his discharge, but 

addressed Dr. Evans’s evaluation of the significance of the 

stated factors in assessing Pettus’s condition. Therefore, we 

conclude that the plaintiff did not waive her objection to Dr. 

Evans’s testimony about his nurses by introducing this other 

evidence about Pettus’s condition. 

Finally, we consider whether the circuit court erred in 

allowing Dr. Evans to testify about the conclusions he reached 

when treating Pettus regarding a possible admission to the 

hospital. We hold that the circuit court did not err. 

As Dr. Evans testified, part of his job was to evaluate 

patients to determine whether they required further treatment by 

a physician who had admitting privileges at the hospital. Dr. 

Evans’s testimony relating to his evaluation whether Pettus 

should be admitted was not a statement of Dr. Evans’s present 
16

opinion, but was an explanation of his treatment plan for the 

patient and the impressions he formed at that time. Therefore, 

the testimony at issue was factual in nature and was not subject 

to the general rule requiring that an expert medical opinion be 

stated to a reasonable degree of medical probability. See Code 

§ 8.01-399(B); Kendrick, 254 Va. at 208-09, 491 S.E.2d at 287; 

Curtis, 249 Va. at 536, 457 S.E.2d at 69; Spruill, 221 Va. at 

479, 271 S.E.2d at 421. 

The plaintiff contends that Dr. Evans’s answer was 

nonetheless barred by Code § 8.01-399(B) because that 

information did not appear in Dr. Evans’s medical records or 

reflect facts communicated or learned by Dr. Evans during his 

treatment of Pettus. We disagree with the conclusion advanced 

by the plaintiff. 

Code § 8.01-399(B) specifically permits evidence of a 

treating physician’s treatment plan, as documented in the 

patient’s medical record, to be elicited through testimony at 

trial. Dr. Evans’s answers directly related to his treatment 

plan for Pettus. However, the record is not clear whether the 

plaintiff has placed Pettus’s complete medical records before 

this Court on appeal. Thus, we cannot say that those records 

lacked any documentation regarding the hospital admission aspect 

of Dr. Evans’s treatment plan. As Dr. Evans observed in his 

testimony, he made written notations on various parts of 
17

Pettus’s chart that were recorded separately from his 

handwritten emergency department entries dealing with his 

treatment of Pettus. 

When a party seeks to have an issue decided in her favor on 

appeal, she is charged with the responsibility of presenting an 

adequate record from which the appellate court can determine the 

merits of her argument. Commonwealth v. Williams, 262 Va. 661, 

669, 553 S.E.2d 760, 764 (2001); McDonald v. National Enters., 

262 Va. 184, 195, 547 S.E.2d 204, 211 (2001). Because the 

plaintiff has not established that she complied with this 

requirement, we are unable to resolve the merits of her argument 

involving those complete records. See Williams, 262 Va. at 669, 

553 S.E.2d at 211; McDonald, 262 Va. at 195, 547 S.E.2d at 764. 

For these reasons, we will affirm in part, and reverse in 

part, the circuit court’s judgment and remand the case for a new 

trial consistent with the principles expressed in this opinion. 

Affirmed in part,

reversed in part, 

 and remanded.