Present: All the Justices 

DONNA J. GAMACHE, M.D., ET AL. 

 OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 032321 September 17, 2004 

CRAIG ALLEN 

FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG 

John W. Scott, Jr., Judge 

I. 

 In this appeal of a judgment entered in favor of 

plaintiff in an action for medical negligence against two 

health care providers, we consider whether the circuit court 

erred by refusing to permit defendants to cross-examine 

plaintiff and his witnesses on certain issues that related to 

his claim for damages. 

II. 

A. 

 Plaintiff, Craig Allen, filed his motion for judgment 

against Donna J. Gamache, M.D., her employer, Mid-Atlantic 

Health Alliance, Inc., t/a Lee's Hill Medical Associates, and 

another physician, Timothy A. Powell, M.D. Plaintiff alleged 

that the defendants breached certain duties owed to him by 

failing to diagnose and treat a disease that affected his 

cervical spine. 

 Prior to trial, plaintiff filed motions in limine. 

Plaintiff informed the circuit court that he intended to 
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present evidence that would permit the jury to conclude that 

he attempted to commit suicide in April 2002 and that this act 

was proximately caused by the negligence of the health care 

providers. He also informed the court that the health care 

providers intended to present evidence that plaintiff's 

attempt to commit suicide was related to other factors, 

specifically, his wife's alleged abuse of narcotics and his 

wife's alleged acts of self-mutilation. Defendants asserted 

in the circuit court that they were entitled to show the jury 

that these acts caused plaintiff to attempt to commit suicide. 

The court granted the motions in limine. The court ruled that 

defendants could present evidence regarding depression that 

plaintiff's wife suffered, but they could not present evidence 

of her alleged abuse of narcotics or her alleged acts of selfmutilation. 

B. 

 During a jury trial, plaintiff presented the following 

evidence. Plaintiff met with Dr. Gamache on June 22, 2000. 

He informed her that he had experienced mild anxiety and that 

he had used a drug, Ativan (a brand name for Lorazepam), that 

had been prescribed by his former physician. Dr. Gamache 

prescribed a different anti-anxiety medication, BuSpar 

(buspirone hydrochloride), for plaintiff. 
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 On July 25, 2000, plaintiff placed a telephone call to 

Dr. Gamache's office, and he complained of muscle aches, 

numbness, and "pins-and-needles" sensations in his arms and 

legs. He did not speak with Dr. Gamache, but he spoke with a 

receptionist who informed plaintiff that he was possibly 

experiencing symptoms associated with the use of BuSpar and 

that he should decrease the daily dosage. 

 Even though plaintiff decreased his dosage of BuSpar as 

instructed by Dr. Gamache's office, he experienced additional 

problems in his arms and legs. On August 17, 2000, plaintiff 

made another telephone call to Dr. Gamache's office and 

described his symptoms. Again, he spoke with the 

receptionist, not with Dr. Gamache. The receptionist informed 

plaintiff that he was merely experiencing side effects of 

BuSpar that would last six to eight weeks from the date he 

discontinued use of that drug. 

 Later, someone from Dr. Gamache's office contacted 

plaintiff and asked if he desired to come to the office for an 

appointment on September 1, 2000. Plaintiff met with Dr. 

Gamache on September 1 and described his symptoms to her. Dr. 

Gamache did not examine plaintiff and assured him that he was 

experiencing symptoms associated with the use of BuSpar. Dr. 

Gamache did not think plaintiff's complaints constituted an 

emergency. 
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 Plaintiff's condition continued to deteriorate. He had 

difficulty walking, and he lost his fine motor skills. He 

contacted Dr. Gamache's office by telephone, and he informed 

the receptionist that his symptoms had gotten worse. The 

receptionist told plaintiff that Dr. Gamache could see him in 

two days. Plaintiff did not accept the appointment because of 

other commitments. 

 Plaintiff's condition deteriorated even further. 

However, plaintiff did not seek alternative medical attention 

because Dr. Gamache had repeatedly assured him that his 

symptoms were not significant. Plaintiff's condition became 

worse and subsequently, plaintiff's wife, Anna K. Allen, took 

him to the emergency room of the Mary Washington Hospital in 

Fredericksburg. 

 Dr. Richard P. Erwin, a neurologist, treated plaintiff 

while he was a patient at the Mary Washington Hospital. Dr. 

Erwin's physical examination revealed an abnormality below 

plaintiff's neck, and Dr. Erwin immediately suspected that 

plaintiff's spinal cord might have been affected. Dr. Erwin 

ordered that a magnetic resonance imaging scan (MRI) be taken, 

and the image revealed an inflammation of plaintiff's spinal 

cord. Dr. Erwin immediately treated plaintiff with high-dose 

steroids, and plaintiff was transferred to the Medical College 
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of Virginia Hospitals, where he was diagnosed as having 

transverse myelitis, an inflammation of the spinal cord. 

 Dr. Michael Jacobs, an internist, testified that the 

health care providers breached the standard of care owed to 

plaintiff because they failed to diagnose his condition in a 

timely manner. Dr. Douglas Kerr, a neurologist, testified 

that plaintiff, who now suffers from irreparable neurological 

damage, could have had his condition arrested had the 

physicians diagnosed and treated his condition sooner. 

 Plaintiff presented evidence that he incurred physical 

and emotional damages, including major depression, proximately 

caused by the defendants' acts of medical negligence. Dr. 

Murry J. Cohen, a psychiatrist who qualified as an expert 

witness, testified that plaintiff suffered from major 

depression, that plaintiff attempted to commit suicide in 

2002, and that this attempt was caused by his physical 

disabilities associated with transverse myelitis. 

Dr. Cohen testified that plaintiff suffered from 

depression, which was caused by major "stressors." Dr. Cohen 

stated, "I thought it was . . . clearly the fact that he was 

suffering from a very severe, albeit not diagnosed, 

neurological illness that was causing great distress, 

physically and emotionally, and was interfering with his 

functioning down the line. And it was clear to me that . . . 
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without question, that was the major stressor and the major 

precipitant." Dr. Cohen acknowledged that even though 

plaintiff was dealing with several stressors in his life, 

including his job, financial problems, his marriage, and 

relationships, Cohen described these stressors as minor and 

testified that plaintiff's illness was the major stressor that 

caused his attempt to commit suicide. 

 Plaintiff presented evidence that his neurological 

deficit is profound, his condition will continue to 

deteriorate, he has incurred in excess of $96,000 in medical 

expenses, he will require future medical care in excess of 

$2,500,000, and he has suffered a loss of earning capacity in 

excess of $1,100,000. 

 The jury returned a verdict in favor of plaintiff against 

Dr. Gamache and her employer, Mid-Atlantic Health Care 

Alliance, in the amount of $6,500,000. The jury returned a 

verdict in favor of defendant, Dr. Powell, and he is no longer 

a party to this proceeding. Pursuant to Code § 8.01-581.15, 

the circuit court reduced the jury's verdict to $1,550,000 and 

entered a judgment confirming the verdict. Defendants appeal. 

III. 

A. 

 Defendants asserted in the circuit court, and argue in 

this Court, that evidence of Mrs. Allen's alleged use of 
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narcotics and alleged acts of self-mutilation were relevant 

because the jury could have inferred that plaintiff's 

attempted suicide was caused by these alleged acts instead of 

defendants' negligence. Continuing, defendants contend that 

the circuit court abused its discretion when it prohibited 

them from eliciting this testimony on the basis that the 

probative value of the evidence was outweighed by its 

prejudicial effect. 

 Responding, plaintiff states that defendants were allowed 

to introduce evidence of alternative causes of plaintiff's 

depression and suicide attempt, such as his financial 

problems, difficulties with his job, marital strife, and that 

the circuit court did not abuse its discretion when it 

prohibited defendants from eliciting the challenged evidence. 

 Evidence that is factually relevant may be excluded from 

the jury's consideration if the probative value of that 

evidence is substantially outweighed by the danger of unfair 

prejudice. Walker v. Commonwealth, 258 Va. 54, 68, 515 S.E.2d 

565, 573 (1999); Coe v. Commonwealth, 231 Va. 83, 87, 340 

S.E.2d 820, 823 (1986). In determining whether evidence 

should be admitted, the circuit court must apply a balancing 

test to assess the probative value of the evidence and its 

prejudicial effect. Dandridge v. Marshall, 267 Va. 591, 596, 

594 S.E.2d 578, 581 (2004); Brugh v. Jones, 265 Va. 136, 140, 
8

574 S.E.2d 282, 284-85 (2003). Gray v. Graham, 231 Va. 1, 10, 

341 S.E.2d 153, 158 (1986). This determination, however, 

rests within the sound discretion of the circuit court and 

will only be disturbed on appeal upon a showing of an abuse of 

discretion. Dandridge, 267 Va. at 596, 594 S.E.2d at 581; 

Lombard v. Rohrbaugh, 262 Va. 484, 492, 551 S.E.2d 349, 353 

(2001); Burns v. Commonwealth, 261 Va. 307, 332, 541 S.E.2d 

872, 889 (2001); Walker, 258 Va. at 68, 515 at 573; Ingles v. 

Diveley, 246 Va. 244, 250, 435 S.E.2d 641, 644 (1993). 

 Applying these principles, we hold that the circuit court 

abused its discretion by refusing to permit defendants to 

elicit evidence that plaintiff's depression and attempted 

suicide may have been related to his wife's alleged acts of 

narcotics abuse and alleged acts of self-mutilation. The jury 

was entitled to consider this evidence, which was relevant, 

even though this evidence may be potentially damaging to 

plaintiff. 

In the context of the record before this Court, the 

probative value of the challenged evidence is not 

substantially outweighed by the danger of unfair prejudice to 

plaintiff. Plaintiff presented evidence, as an element of his 

damages, that the defendants' acts of negligence proximately 

caused his attempt to commit suicide. The defendants, 

therefore, are entitled to present evidence that other 
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significant events that occurred in plaintiff's life for which 

defendants were not responsible were the proximate cause of 

plaintiff's attempted suicide. And, even though, as plaintiff 

asserts, the jury was aware of alleged alternative causes of 

his depression and suicide attempt, the jury was not aware of 

defendants' allegations that plaintiff's wife purportedly 

abused his narcotic medications and that she purportedly 

engaged in acts of self-mutilation. 

 We disagree with plaintiff's contention that this 

challenged evidence is collateral. Plaintiff presented 

evidence that his suicide attempt was caused by the 

defendants' acts of negligence, and he introduced in evidence 

the cost of medical treatment associated with the treatment 

necessitated by the suicide attempt. The excluded evidence is 

not collateral, but it is relevant to an element of damages 

that plaintiff claimed was proximately caused by defendants' 

acts of negligence. See Seilheimer v. Melville, 224 Va. 323, 

327, 295 S.E.2d 896, 898 (1982). 

B. 

 Defendants sought to present evidence that two 

physicians, Dr. Erwin and Dr. Barbara Newberg, who had treated 

plaintiff previously, did not believe that he was trustworthy. 

Defendants also wanted to elicit evidence that one of 

plaintiff's former physicians terminated the patient/physician 
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relationship with plaintiff because he had not been truthful 

with that physician. Defendants contend that the circuit 

court abused its discretion by failing to permit them to 

present this evidence to the jury. 

 We disagree with the defendants. Essentially, the 

defendants sought to challenge plaintiff's veracity by 

presenting evidence that he had been untruthful with his 

former physician. When a litigant impeaches a witness' 

reputation for truth and veracity, such evidence must be 

confined to the general reputation of the impeached witness 

for truth and veracity and may not include the commission of 

specific acts of untruthfulness or other bad conduct, even 

though these have bearing on veracity. Bradley v. 

Commonwealth, 196 Va. 1126, 1133, 86 S.E.2d 828, 833 (1955); 

Allen v. Commonwealth, 122 Va. 834, 840, 94 S.E.2d 783, 785 

(1918); Langhorne v. Commonwealth, 76 Va. 1012, 1019 (1882). 

 The circuit court properly refused to permit the 

defendants to present evidence of plaintiff's veracity. 

Defendants sought to present evidence of specific alleged acts 

of untruthfulness, contrary to this Court's well-established 

precedent. 

C. 

 Dr. Cohen testified on behalf of the plaintiff. Among 

other things, Dr. Cohen discussed plaintiff's depression, 
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attempted suicide, and symptoms, including plaintiff's 

physical pain. During the defendants' cross-examination of 

Dr. Cohen, the following colloquy occurred: 

"Q: Is it important that the patient be 

forthcoming with you when giving a history? 

 "A: Yes. 

 "Q: And you indicated on direct examination 

that you did not think that Mr. Allen exaggerated 

his pain; correct? 

 "A: I did not think that; correct. 

 "Q: Or you do not think that? 

 "A: I do not think that; correct. 

. . . . 

 "Q: [D]o you believe he has always given you a 

full and credible history? 

 "A: No. I haven't always believed that. 

. . . . 

 "Q: Has he given you any information that was 

inconsistent with either information you had heard 

otherwise or your clinical examination of the 

patient? 

 "[Plaintiff]: Objection, Your Honor, based on 

previous rulings in this case. That's not something 

that − the Court has already ruled that's not coming 

in. 

 "[Defendants]: I think the door has been 

opened. He stated on direct . . . that he does not 

believe he's exaggerated his pain. And this doctor 

has said that he's not believed to have always given 

a full and credible history. I think this is ripe 

for exploration. 

 "[The Court]: I do not believe he used that. 

Objection is sustained." 

Defendants argue that the circuit court abused its discretion 

when it limited the scope of defendants' cross-examination of 

Dr. Cohen. We disagree. 
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 The circuit court did not abuse its discretion by 

limiting the scope of defendants' cross-examination. Dr. 

Cohen's statement that plaintiff failed to consistently 

provide Dr. Cohen with a full and credible history simply does 

not contradict Dr. Cohen's observations of plaintiff's pain or 

statements that plaintiff may have made to Dr. Cohen regarding 

the extent of plaintiff's pain. 

D. 

 In February 2003, plaintiff was taken to the emergency 

room at the Mary Washington Hospital in Fredericksburg. He 

had a decreased level of consciousness and "pinpoint pupils." 

Dr. Erwin testified that use of narcotics can cause pinpoint 

pupils and decreased awareness. Hospital personnel performed 

a urine drug screen test on plaintiff's urine sample, and the 

test identified the presence of opiates in plaintiff's body. 

Opiates are narcotic pain medicines. Defendants contend that 

they were entitled to present expert opinion testimony from 

Dr. Erwin and Dr. Newberg that plaintiff's hospitalization in 

February 2003 was the result of a second suicide attempt. We 

will not consider this argument because defendants did not 

present an adequate record to this Court, having failed to 

make a proffer of any opinions that Dr. Erwin and Dr. Newberg 

would have rendered. 

IV. 
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 Plaintiff presented evidence that supports the jury's 

findings that defendants Dr. Gamache and her employer, MidAtlantic Health Alliance, breached the standard of care owed 

to him. Defendants' assignments of error do not challenge the 

jury's findings that defendants were negligent. Therefore, 

upon retrial, these findings will be binding upon the 

defendants, and plaintiff will not be required to establish 

that the defendants were negligent. Plaintiff will only be 

required to establish proximate causation and damages. Also, 

upon retrial, defendants will be permitted to present evidence 

of plaintiff's wife's alleged acts of narcotics abuse and 

self-mutilation. 

 Accordingly, we will affirm that portion of the judgment 

that confirmed the jury's findings that the defendants were 

negligent. We will remand this case for a new trial limited 

to the issues of proximate causation and damages. 

Affirmed in part, 

reversed in part, 

 and remanded. 

JUSTICE LACY, with whom JUSTICE KINSER joins, concurring in 

part and dissenting in part. 

 I concur in the majority's conclusions regarding 

presentation of evidence of Allen's veracity, the crossexamination of Dr. Cohen, and opinion testimony of Drs. Erwin 

and Newberg; however, I respectfully dissent from the 
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majority's conclusion that the trial court's refusal to allow 

evidence that Mrs. Allen allegedly abused narcotics and 

engaged in self-mutilation was reversible error. 

 The majority opinion recites that defendants argued that 

Mrs. Allen's alleged use of narcotics and alleged acts of 

self-mutilation "caused" plaintiff's suicide attempt. Based 

on this characterization, the majority opinion concludes that 

defendants were entitled to present evidence that such acts 

"were the proximate cause of plaintiff's attempted suicide." 

(Emphasis added.) The record, however, contains no instance 

in the trial court in which the defendants asserted that Mrs. 

Allen's alleged acts were the proximate cause of Mr. Allen's 

suicide attempt. 

At trial, defendants argued that the evidence at issue 

should have been admitted because it showed that the wife's 

actions were "one of the main motivations for [Allen's] 

suicide attempt," that Allen's neurological condition "was not 

his main reason for attempting suicide," and that Mrs. Allen's 

abuse of narcotics was "one of the reasons" Allen attempted 

suicide. 

Defendants' opening brief before this Court states that 

at the hearing on Allen's motion in limine Gamache argued that 

Mrs. Allen's actions "contributed to" Allen's stress and 

suicide attempt. Defendants also assert on brief that the 
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evidence at issue should have been admitted to show that "a 

major reason for Allen's suicide attempt" was Mrs. Allen's 

alleged narcotic abuse and self-mutilation. In their reply 

brief, the defendants argue that the jury should have had this 

evidence "to determine whether or not Gamache's treatment of 

[Allen] 18 months prior was the proximate cause of the suicide 

attempt." And had the jury had this evidence, "they could 

well have concluded that Allen was untruthful when he laid all 

the responsibility for his actions at Gamache's feet." 

 At no time did the defendants argue that Mrs. Allen's 

actions were the proximate cause of Allen's suicide attempt. 

Every argument made refers to Mrs. Allen's acts as additional 

causes of the attempted suicide; there was no argument 

presented that the defendants' negligence was not a proximate 

cause. Indeed, Allen did not argue that Gamache's negligence 

was the cause of his suicide attempt. Rather, Allen argues 

such negligence was one of the causes. 

A fundamental tenet of Virginia tort law holds that a 

party is responsible for injuries caused by his negligence 

even if the acts of others contributed to the injuries unless 

those other acts constituted an intervening, superseding cause 

of the injury. Coleman v. Blankenship Oil Corp., 221 Va. 124, 

131, 267 S.E.2d 143, 147 (1980); Von Roy v. Whitescarver, 197 

Va. 384, 393, 89 S.E.2d 346, 352 (1955). Applying the 
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position taken by the defendants on this issue throughout 

these proceedings, Mrs. Allen's acts as "a major reason," "one 

of the reasons," or "one of the main reasons" for Allen's 

suicide attempt, were only a proximate cause of Allen's 

injuries resulting from his suicide attempt. Mrs. Allen's 

alleged actions would not negate Gamache's negligence as a

proximate cause of Allen's injuries. Accordingly, I conclude 

that the failure to admit the evidence in issue was harmless 

error and I would affirm the judgment of the trial court in 

its entirety.