COURT OF APPEALS OF VIRGINIA

Present: Judges Malveaux, Ortiz and Friedman

Argued at Norfolk, Virginia

MID-ATLANTIC WOMEN’S CARE, P.L.C.

MEMORANDUM OPINION* BY

v. Record No. 1319-22-1 JUDGE FRANK K. FRIEDMAN

OCTOBER 31, 2023

GLORIA KONTARATOS

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK

Jerrauld C. Jones, Judge

Nicholas J.N. Stamatis (Michael E. Olszewski; Michael B. Sylvester; 

Rodney S. Dillman; Brett M. Saunders; Hancock, Daniel & Johnson, 

P.C., on briefs), for appellant.

Randy D. Singer (Rosalyn K. Singer; Kevin A. Hoffman; Singer 

Davis, LLC, on brief), for appellee.

Mid-Atlantic Women’s Care, P.L.C. appeals the circuit court’s judgment following a jury 

trial, awarding Gloria Kontaratos $2,125,000 in a medical malpractice action. On appeal, 

Mid-Atlantic argues the circuit court erred in denying its motions for a mistrial and for a new trial, 

based on the prejudice caused due to the “unavoidable absence” of one of the treating physicians, 

Dr. Colleen Connor, during part of the jury trial. Mid-Atlantic also contends that the circuit court

erred in failing to provide the jury with a cautionary instruction regarding Dr. Connor’s absence. 

We find no error and affirm the decision of the circuit court.

BACKGROUND

In March 2019, Dr. Connor, an employee of Mid-Atlantic, performed a total abdominal 

hysterectomy on Kontaratos, with assistance from Dr. Seifeldin Sadek, a medical resident. At 

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

UNPUBLISHED
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approximately 11:00 a.m. on the day following surgery, Kontaratos reported pain, numbness, and 

tingling in her lower extremities. Kontaratos underwent a veinous study that afternoon that revealed 

no blood clots but showed that Kontaratos had no arterial blood flow to her lower extremities. After 

Dr. Sadek received the results of the veinous study, he ordered an arterial scan but did not have the 

authority to request a vascular consult without first consulting with the attending physician. 

Dr. Sadek relayed Kontaratos’ symptoms to Dr. Connor, who did not visit Kontaratos or order 

additional testing before she left the hospital for the evening.

Kontaratos’ symptoms continued to worsen throughout the day, and Kontaratos’ nurse 

found no pulse in her lower extremities. The nurse contacted Mid-Atlantic’s on-call physician, 

Dr. Frank Morgan, who decided to wait for a pending arterial scan before requesting a vascular 

consult. At this point, six hours had passed since the initial onset of Kontaratos’ symptoms. 

Kontaratos’ arterial scan confirmed that she had no pulses flowing to her lower extremities, at 

which time Dr. Morgan ordered a vascular consult, at approximately 7:55 p.m. A vascular surgeon 

evaluated Kontaratos that evening and determined that she had acute limb ischemia and needed

immediate surgery. During the surgery, the vascular surgeon found the ischemia to be significant 

and found clots in multiple blood vessels. The vascular surgeon made several incisions on both of 

Kontaratos’ legs, attempting to remove the clots, and then followed with fasciotomies in both legs. 

Following this procedure, Kontaratos had an “exceedingly painful and difficult” recovery. 

Kontaratos later required many additional surgeries and amputations of toes and part of her foot.

In September 2020, Kontaratos filed a complaint alleging medical malpractice against

Dr. Connor and Dr. Frank Morgan, as well as their employer, Mid-Atlantic, based on a theory of 

respondeat superior for the care Kontaratos received after complaints of severe leg pain and 

numbness that arose following her total abdominal hysterectomy.1 The parties convened for a

1 Kontaratos also named other defendants but dismissed them before trial.
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jury trial on April 25, 2022. Dr. Connor attended the first two days of trial, during which the 

parties completed jury selection, presented opening arguments, and heard testimony from three 

of Kontaratos’ witnesses. On the third day of trial, however, Mid-Atlantic informed the circuit 

court that Dr. Connor was ill and unable to attend the trial. Mid-Atlantic asked the circuit court 

to instruct the jury that “Dr. Connor had an important matter to attend to” and that the circuit 

court had “excused Dr. Connor from trial” on the first day. The circuit court advised the jury 

that Dr. Connor had “a very important personal matter and the [circuit court had] authorized her 

absence from today’s proceedings.” The circuit court advised the jury that they were “not to 

make any assumptions or draw any inferences due to her absence.” The trial proceeded 

following this instruction.

The following day, Mid-Atlantic informed the circuit court that Dr. Connor had “taken a

turn for the worse.” Mid-Atlantic argued that “given what has developed with Dr. Connor’s 

health situation,” the earlier instruction was “no longer a sufficient explanation to the jury 

because it invites too much speculation on their part and possible prejudice against Dr. Connor.” 

Mid-Atlantic asked the circuit court to instruct the jury that “the important personal matter 

Dr. Connor had to attend to yesterday was her own health because she was sick,” that “her illness 

ha[d] gotten worse and her intention [wa]s to go to the hospital,” and, for that reason, the circuit 

court excused Dr. Connor from attending trial. After hearing arguments from the parties

regarding the instruction, the circuit court informed the jurors that “Dr. Connor had been excused 

from court due to an important matter” and that “Dr. Connor became ill with an undiagnosed 

illness. Dr. Connor is still ill today and in fact is seeking medical treatment.” The circuit court 

instructed the jury to “not make any assumptions or draw any inferences due to her absence.” 

The circuit court proceeded with trial, and the jury heard testimony from several more witnesses.
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Later that day, Mid-Atlantic informed the circuit court that Dr. Connor was being 

admitted to the hospital for “[a]scites, severe bowel inflammation,” and was awaiting a surgical 

consultation. Based on this, Mid-Atlantic moved for a mistrial. Mid-Atlantic argued that 

Dr. Connor deserved the opportunity to participate in her case, but was being denied that 

opportunity through no fault of her own. Mid-Atlantic’s counsel stated that he had had “no 

meaningful discussion” about trial strategy with Dr. Connor since she became ill. The circuit 

court discussed less drastic ways to address the issue, such as suspending the trial “for a 

reasonable time to allow her to recover” and therefore “minimiz[ing] the harm” to the parties. 

The circuit court ultimately took Mid-Atlantic’s motion under advisement, but asked for more 

information on Dr. Connor’s condition.

The next day, the fifth day of trial, Mid-Atlantic made a new motion for a mistrial. 

Mid-Atlantic informed the circuit court that Dr. Connor was receiving medical treatment, but she 

still did not have a specific diagnosis. In support of the motion for mistrial, Mid-Atlantic argued 

“[t]here [wa]s no substitute for Dr. Connor as the main named defendant for being in th[e]

courtroom.” Kontaratos advised the circuit court that she was considering nonsuiting both 

individual defendants, Dr. Connor and Dr. Morgan, depending on Dr. Connor’s progress. The 

circuit court again took the motion for mistrial under advisement until it could learn more about 

Dr. Connor’s “ability to participate by way of presence and/or presentation of evidence in the 

case.” Before testimony continued, the circuit court informed the jury that Dr. Connor was still 

ill and receiving medical treatment. The circuit court instructed the jury to “not make any 

assumptions or draw any inferences due to her absence” and that the circuit court approved her 

absence.
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Kontaratos filed a motion that Dr. Connor be required to produce, under seal, a complete 

copy of her hospital records from her admission. Dr. Connor was released from the hospital on 

Sunday, May 1, 2022.

The following day, on the sixth day of trial, Mid-Atlantic moved for a mistrial on behalf 

of itself, Dr. Connor, and Dr. Morgan. Mid-Atlantic argued the circuit court had “broad 

discretion to determine whether declaring a mistrial was necessary to prevent great injustice to 

either party.” Mid-Atlantic provided the circuit court with selected “screenshots from 

Dr. Connor’s medical records from her hospital admission.” Mid-Atlantic asserted that through 

her absence and illness, Dr. Connor missed the ability to observe the testimony of the expert 

witnesses and had been unable to review any transcripts from the testimony due to her 

hospitalization. Mid-Atlantic argued that Dr. Connor suffered prejudice due to her illness, as she

was unable to participate in her trial, warranting mistrial.

In response, Kontaratos moved to nonsuit Dr. Connor and Dr. Morgan, which the circuit 

court granted. Kontaratos argued that the motion for a mistrial was “moot” because Dr. Connor 

was no longer a party to the suit, arguing “[t]hat motion for a mistrial is no longer pending in 

front of the court and rightfully so, because there can be no verdict entered against her.” The 

circuit court made no ruling on the motion for mistrial, and the trial continued. Before testimony 

started, the circuit court instructed the jury that Dr. Connor was “still ill today and is receiving 

medical treatment” and that the jury “should not make any assumptions or draw any inferences 

due to her absence.”

The following day, Mid-Atlantic provided the circuit court with a note from a registered 

nurse with a “return to work” date for Dr. Connor of May 5, 2022. Mid-Atlantic also asked the 

circuit court to rule on the pending motion for mistrial. The circuit court considered the argument 

of the parties. The court stated that it had carefully reviewed all the authorities provided by the 
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parties, had considered their arguments, had done its own research, and was “very, very cautious in 

making the decision.” The circuit court denied Mid-Atlantic’s motion for a mistrial.

Mid-Atlantic requested the circuit court offer a curative instruction to the jury to explain 

Dr. Connor’s absence due to her illness and hospitalization. Kontaratos objected to the instruction, 

arguing that it would bias the jury towards Dr. Connor. The circuit court called the jury into the 

courtroom and informed it that Dr. Connor had been diagnosed with gastroenteritis and had been 

hospitalized from April 28, 2022, until May 1, 2022. The circuit court informed the jury that 

Dr. Connor would testify the next day. The circuit court reiterated that “Dr. Connor was not present

in trial due to her illness and hospitalization” and that the jury “should not make any assumptions or 

draw any inference due to her absence. Her unforeseen absence was excused.” The circuit court 

also informed the jury that Kontaratos voluntarily dismissed Dr. Connor and Dr. Morgan and that 

the trial would proceed against Mid-Atlantic.

The trial resumed the following day, during which Dr. Connor was in attendance and 

testified, after which the defense rested. Relevant to this appeal, Dr. Connor testified about her 

illness and that she had been hospitalized for three days during the trial. 

At the close of the evidence and after deliberations, the jury returned a verdict in 

Kontaratos’ favor in the amount of $3,100,000.

2 Following the trial, Mid-Atlantic filed a motion to 

set aside the jury’s verdict, which the circuit court denied. Mid-Atlantic appeals. 

ANALYSIS 

On appeal, Mid-Atlantic challenges the circuit court’s denial of its motion for a mistrial. 

Mid-Atlantic asserts that Dr. Connor’s absence from the trial caused prejudice because, during 

testimony, “she was accused of being improperly absent during medical care.” Mid-Atlantic 

2 Upon Mid-Atlantic’s motion, the circuit court reduced Kontaratos’ damages to 

$2,125,000, based on the statutory limit and a separate settlement between Kontaratos and 

another defendant. Code § 8.01-581.15.
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reasoned that the jury could have taken her absence at trial as being “similar to the actions that lie at 

the heart of the litigation,” creating a “manifest probability of prejudice . . . necessitating a mistrial.” 

Mid-Atlantic also challenges the circuit court’s refusal to inform the jury about Dr. Connor’s 

hospitalization and the medical procedures she underwent until the eighth day of trial, one day 

before the defense rested.

I. Motion for Mistrial

The circuit court’s “ruling denying a motion for mistrial will be set aside on appellate 

review only if the ruling constituted an abuse of discretion.” Gross v. Stuart, 297 Va. 769, 774 

(2019) (quoting Allied Concrete Co. v. Lester, 285 Va. 295, 308 (2013)). “A reviewing court can 

conclude that ‘an abuse of discretion has occurred’ only in cases in which ‘reasonable jurists 

could not differ’ about the correct result.” Bethea v. Commonwealth, 68 Va. App. 487, 506-07

(2018) (quoting Commonwealth v. Swann, 290 Va. 194, 197 (2015)). “‘[B]y definition,’

however, a trial court ‘abuses its discretion when it makes an error of law.’” Id. at 507

(alteration in original) (quoting Coffman v. Commonwealth, 67 Va. App. 163, 166 (2017)). “To 

properly review the trial court’s application of the law to the facts, ‘[w]e give deference to the 

trial court’s factual findings and view the facts in the light most favorable to . . . the prevailing 

part[y] below.’” Stone v. Commonwealth, 297 Va. 100, 102 (2019) (alterations in original) 

(quoting Kim v. Commonwealth, 293 Va. 304, 311 (2017)).

“When a motion for mistrial is made, based upon an allegedly prejudicial event, the trial 

court must make an initial factual determination, in . . . light of all the circumstances of the case, 

whether the defendant’s rights are so ‘indelibly prejudiced’ as to necessitate a new trial.” Green 

v. Commonwealth, 266 Va. 81, 102 (2003) (quoting Spencer v. Commonwealth, 240 Va. 78, 95

(1990)). “The trial court must also find a probability of prejudice, with the ‘burden of 

establishing that probability . . . upon the party moving for a mistrial.’” Green v. 
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Commonwealth, 26 Va. App. 394, 401 (1998) (alteration in original) (quoting Robertson v. 

Metro. Wash. Airport Auth., 249 Va. 72, 76 (1995)). “Hence, we will not overturn ‘the denial of 

a motion for a mistrial . . . unless there exists a manifest probability that [the ruling] was 

prejudicial.’” Id. (alterations in original) (quoting Taylor v. Commonwealth, 25 Va. App. 12, 17 

(1997)).

Mid-Atlantic argues that this case presents a “unique scenario” under which the circuit court 

should have granted a mistrial. Specifically, Mid-Atlantic argues that “an incurable prejudice arises 

when a litigant is seen by the jury, through no fault of its own, doing exactly what the litigant has 

been accused of doing.”

3

 Mid-Atlantic compares the facts of this case to Miller v. Commonwealth, 

7 Va. App. 367, 371 (1988), in which the trial court denied a motion for a mistrial after a criminal 

defendant, who was accused of a non-violent crime, was brought into the courtroom in front of the 

jury wearing shackles. This Court reversed the denial of the defendant’s motion for a mistrial, 

holding that the defendant was “effectively denied that presumption of innocence by being 

unnecessarily shackled and viewed by the jury.” Id. Mid-Atlantic argued that it suffered a 

“manifest probability of prejudice” because Dr. Connor was unable to attend the trial through no 

fault of her own, and therefore “was forced to appear exactly as . . . Kontaratos claimed she was 

during her medical care—absent.”

4

3

In Jack v. Booth, 858 N.W.2d 711 (Iowa 2015), a health care provider defendant leapt 

into action to provide aid to a juror who fainted during the trial. The trial court denied the 

plaintiff’s subsequent motion for a mistrial. A defense verdict ensued. On appeal, the Iowa 

Supreme Court reversed, finding a mistrial should have been granted. Mid-Atlantic argues that 

just as a mistrial was appropriate in Jack, because trial events painted the doctor in an overly 

flattering light, here Dr. Connor’s absence necessitated a mistrial because it cast her in an 

unflattering light. The jury here, however, was told of Dr. Connor’s illness, instructed not to 

draw any inferences from her absence, and, ultimately, the doctor was permitted to testify about 

her illness. We find Jack a very different situation than the setting here.

4 Notably, Mid-Atlantic argued repeatedly below that a mistrial was warranted because 

Dr. Connor was unavailable to assist in the defense of the case or contribute to challenging 

plaintiff’s experts. On appeal, Mid-Atlantic suggests that Dr. Connor’s absence added fuel to 
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Mid-Atlantic’s argument ignores the impact of the circuit court’s repeated instructions to the 

jury not to “make any assumptions or draw any inference due to [Dr. Connor’s] absence.” “A jury 

is presumed to follow the court’s instructions, and an appellant who challenges a verdict bears the 

burden of rebutting that presumption.” Centra Health, Inc. v. Mullins, 277 Va. 59, 81 (2009). In 

this case, there is no indication that the jury failed to follow the circuit court’s instructions and 

Mid-Atlantic offers no evidence to rebut the presumption. Moreover, the repeated instructions were 

generally given at Mid-Atlantic’s request, despite Kontaratos’ expressed frustration that the 

instructions could cause the jury to look upon Dr. Connor with sympathy.

Mid-Atlantic also suggests that “the circuit court erred by giving weight to factors that were 

not proper for its decision” with respect to the mistrial motion. Mid-Atlantic takes issue with the 

circuit court’s statements that “it believed it needed to balance interests regarding what would be 

fair to both sides in how it addressed this situation,” specifically, Kontaratos’ counsel’s claim that he 

had advanced, and would lose, $100,000 in costs for preparation for trial. Mid-Atlantic alleges 

“mistrial analysis does not involve balancing prejudices” and should not be “guided by the opposing 

party’s advanced litigation costs.”

5

We agree with Mid-Atlantic that the proper consideration for deciding a motion for a 

mistrial is whether “the defendant’s rights are so ‘indelibly prejudiced’ as to necessitate a new trial.”

Green, 266 Va. at 102 (quoting Spencer, 240 Va. at 95). It was, however, Mid-Atlantic’s burden to 

prove its rights were so “indelibly prejudiced” as to require a mistrial. Id. (quoting Spencer, 240 Va. 

at 95). We find that Mid-Atlantic did not meet this burden here. The record does not reveal signs of 

plaintiff’s narrative that Dr. Connor was absent when Kontaratos needed care. Kontaratos 

asserts that this latter emphasis by the defense was not expressly raised below and has been 

waived under Rule 5A:18. We will assume without deciding that the argument is preserved.

5 Kontaratos counters that her arguments relating to the long delay in obtaining a trial 

date and the costs expended in the trial were factors relevant to suspending the trial, if necessary, 

rather than granting a mistrial.
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prejudice—and we find the circuit court’s instructions were adequate to eliminate the threat of 

prejudice to the defense caused by Dr. Connor’s absence. Centra Health, 277 Va. at 81 (we 

presume the trial court’s instructions were followed); Stump v. Doe, 250 Va. 57, 62 (1995) (same); 

Medici v. Commonwealth, 260 Va. 223, 229 (2000) (same).

Finally, Mid-Atlantic argues that Kontaratos’ nonsuit of Dr. Connor and Dr. Morgan did not 

cure the prejudice that arose from Dr. Connor’s absence from trial because the judgment against 

Mid-Atlantic was based only on its responsibility for its employees’ actions. Mid-Atlantic contends 

that Dr. Connor remained an “important material witness” following the nonsuit and that

“Mid-Atlantic should have had the benefit of having its agent, Dr. Connor, present during trial.” 

Mid-Atlantic concludes that Kontaratos’ mid-trial nonsuit of Dr. Connor did not cure “the manifest 

probability of prejudice that arose due to Dr. Connor’s unpreventable absence from trial.”

As Kontaratos notes, after she nonsuited Dr. Connor, the circuit court’s analysis “shifted 

because Dr. Connor became a material witness for Mid-Atlantic, not a party.” Mid-Atlantic still 

had access to Dr. Morgan throughout the trial, and Mid-Atlantic offers no authority to support its

proposition that the circuit court should have halted the trial in the absence of its “preferred” 

material witness.

6

Ultimately, Dr. Connor was able to attend the beginning and ending of the trial. She was 

able to testify before the jury. In fact, she was permitted to explain her sickness and absence from 

6 We do not downplay the hardship faced by Mid-Atlantic in these circumstances. 

However, even Mid-Atlantic does not suggest that the unavailability of a preferred material 

witnesss or representative at trial mandates a per se entitlement to a mistrial. Since such an 

absence is not a per se grounds for a mistrial, we are left to analyze these matters on a case-bycase basis. Here, again, Dr. Connor was nonsuited, the jury was instructed not to draw 

inferences from her unavailability, and the jury was ultimately informed that she had been 

hospitalized. In the end, she, herself, testified to the jury about her illness. Under these 

circumstances, the circuit court did not abuse its discretion in denying the motion for mistrial.
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the trial. Considering the totality of the circumstances, we find that the circuit court did not abuse 

its discretion by denying Mid-Atlantic’s motion for mistrial.

II. Cautionary Instruction

Where the “circuit court has determined that a defendant’s rights have not been prejudiced 

and has denied his motion for a mistrial,” this Court’s review “is confined to an inquiry whether the 

circuit court abused its discretion and, thus, was wrong as a matter of law.” Lewis v. 

Commonwealth, 269 Va. 209, 214 (2005). “The decision whether to give a cautionary instruction 

is a matter lying within the trial court’s discretion and will not be disturbed on appeal unless the 

record shows an abuse of discretion.” Andrews v. Commonwealth, 280 Va. 231, 268-69 (2010)

(quoting Goins v. Commonwealth, 251 Va. 442, 465 (1996)).

Mid-Atlantic argues that, even if the prejudice could have been cured by an instruction to 

the jury, this Court should find that the instructions the circuit court provided to the jury here were 

“inadequate to cure the prejudice that arose.” The circuit court first informed the jury that 

Dr. Connor was absent due to “a very important personal matter” and subsequently informed the 

jury that Dr. Connor had an undiagnosed illness and was seeking medical attention. Mid-Atlantic 

twice asked the circuit court to instruct the jury about Dr. Connor’s hospitalization, but the circuit 

court again told the jury that Dr. Connor was ill and seeking medical attention, without mentioning 

her hospitalization. The circuit court informed the jury of Dr. Connor’s hospitalization on the 

eighth day of trial.7 Mid-Atlantic argues that “by this time, the prejudice against Mid-Atlantic had 

already accrued,” because by being unaware of Dr. Connor’s hospitalization until the eighth day of 

7 While Mid-Atlantic complains of the delay, the circuit court repeatedly asked for 

medical confirmation of Dr. Connor’s medical condition. Such confirmation was slow in 

arriving. We do not fault the circuit court for requiring medical verification of Dr. Connor’s 

condition and prognosis.
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trial, “the jury was poised to think the worst of Dr. Connor and use that as a basis for determining 

that she was impermissibly absent during . . . Kontaratos’ medical care.”

We disagree. The circuit court provided the jury with daily instructions, building upon the 

information it received regarding Dr. Connor’s condition. The circuit court’s final instruction 

informed the jury that Dr. Connor had been hospitalized. The circuit court consistently reminded 

the jury not to make any assumptions or draw any inferences from Dr. Connor’s absence and that it

had approved of Dr. Connor’s absence. Again, as the cautionary instructions piled up, day after 

day, Kontaratos noted that the instructions were evoking sympathy from the jury in favor of the 

stricken doctor—but the circuit court persevered with the instructions. Once Dr. Connor returned to 

trial, the circuit court permitted her to testify about the circumstances of her absence. As noted 

above, we presume the jury followed the circuit court’s instructions not to draw inferences from 

Dr. Connor’s unavailability. Centra Health, Inc., 277 Va. at 81. Based on the facts of the case, we 

find that the circuit court did not abuse its discretion in issuing its cautionary instructions.

CONCLUSION

For the foregoing reasons, the circuit court’s judgment is affirmed.

Affirmed.