Monahan v. Obici Medical Management Services, Inc.

PRESENT:    All the Justices

LAWRENCE J. MONAHAN

Record Number 051592                            OPINION BY
v.                                        JUSTICE G. STEVEN AGEE
                                              April 21, 2006

OBICI MEDICAL MANAGEMENT SERVICES, INC.

            FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                      Rodham T. Delk, Jr., Judge

     The Circuit Court of the City of Suffolk entered judgment

on a jury verdict in favor of Lawrence J. Monahan in his medical

malpractice action against Obici Medical Management Services,

Inc. (“Obici”) and awarding him damages in the amount of

$215,000.   Monahan appeals from the trial court's decisions to

instruct the jury on mitigation of damages and to deny his

motion to strike certain evidence related to the issue of

mitigation.   He requests a new trial as to damages only.    For

the reasons set forth below, we will affirm the judgment of the

trial court in part, and reverse in part.

            I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

     On the morning of Tuesday, August 28, 2001, Monahan, a

construction subcontractor,1 was working on a construction

project when he informed his supervisor, Johnnie Presson, that

he felt unwell and had double vision.   Presson noticed that

Monahan “wasn’t moving quite right” and contacted Monahan’s

     1
       Monahan was employed full-time as a subcontractor with
Rickmond General Contracting, a general contractor.
wife.       He had a co-worker drive Monahan to Wakefield Medical

Center2 ("Wakefield") for a medical evaluation.3

        When Monahan arrived at Wakefield, the office was closed

for lunch, but the receptionist admitted Monahan into the clinic

building after observing that he was unusually “hot and sweaty.”

Anita Curl, the practice manager, escorted Monahan to an

examination room.      She testified that Monahan appeared “hot and

tired,” and that he was walking “slow” and “unsteady.”        Barbara

P. Carr, a licensed practical nurse, took Monahan’s vital signs

and recorded his blood pressure to be “200 over 95.”        Carr also

noted that Monahan felt dizzy and had double vision.

        Carrie Wiggins, a nurse practitioner at Wakefield, examined

Monahan about 1:00 p.m.      Wiggins checked Monahan’s chart, retook

his blood pressure twice, and performed a quick neurologic exam,

which she determined was normal.         She concluded that Monahan was

having a hypertension crisis and gave him some samples of

Micardis (a blood pressure medication4).        Wiggins testified that

she told Monahan to rest through Friday, August 31, 2001,

scheduled him to return in two weeks to have his blood pressure




        2
       Wakefield is owned and operated by Obici. Carrie Wiggins,
the nurse practitioner who examined Monahan, was an employee of
Wakefield and, thus, Obici. At trial, Obici stipulated that
Wiggins was one of its employees.
     3
       Monahan had been a patient at Wakefield for many years.
     4
       Monahan had a history of high blood pressure.


                                     2
checked, and wrote in his medical chart that if his condition

did not improve Monahan “should come back the next day.”

     Monahan then left Wakefield and walked to the adjacent

pharmacy.    Curl observed Monahan at the pharmacy and stated that

he appeared “very sick and was walking to the front, walking

like somebody that was drunk and dizzy.”   She returned to

Wakefield and informed Wiggins, who went outside and found

Monahan leaning against the building and again discussed his

condition with him.   She then prescribed Meclizine for Monahan’s

dizziness.

     There was considerable conflict in the evidence as to what

Wiggins advised Monahan to do during their discussion of his

condition at Wakefield.   Obici contends that Wiggins advised

Monahan that his high blood pressure could lead to a stroke and

that he should go to the emergency room at a hospital.   When

Monahan did not respond to her, Wiggins assumed from his silence

that he was refusing to go to the emergency room.   Monahan

maintained that Wiggins never told him that he needed to go to

the emergency room and never mentioned the possibility of him

having a stroke.

     Wiggins testified on direct examination:

     I was really concerned about his blood pressure being
     elevated.
          And I said, [b]ecause your blood pressure is
     elevated, that could mean several things. It could
     mean that you might be having a stroke. So you really


                                  3
     need to go to the emergency room for further
     evaluation.

                            . . . .

          His response was nothing.       He didn’t say anything
     at that particular time.

     Wiggins then testified that she reiterated her advice that

Monahan go to the emergency room when she talked with him

outside the pharmacy:

          [W]hen I realized that he was dizzy, I sat out
     there with him on the side of the pharmacy and said,
     Mr. Monahan, I’m really, really concerned about you.
     I said, I saw you when you were walking, and I feel
     like you need to go to the emergency room.
          And he kept saying, Well, I just called my wife,
     and she’s going to be at home probably by the time I
     get there.

     However, on cross examination, Wiggins testified that her

advice to Monahan was given in the form of alternatives, that

either he could go to the emergency room or go home and rest to

see if his condition changed.

     Q [Monahan’s Counsel:] So you gave him the option of
     either going to the emergency department or telling
     his wife to take him to the emergency department . . .
     if there’s any change in the least? . . . [I]sn’t that
     what you told him?

     A [Wiggins:]   Yes.

                                . . . .

     Q[:] And in response to you saying to him either go
     to the emergency department or go home, lay down, and
     tell your wife to take you to the emergency department
     if you have any change, he said okay, didn’t he?

     A[:]   He said okay.


                                   4
                              . . . .

       Q[:] And when you gave him the option of going home,
       laying down, and telling his wife to take him to the
       emergency department if there was any change in him in
       the least, that, you believe, was one option for his
       treatment at that time, correct?

       A[:] Not for his treatment, definitely not for his
       treatment, but to make sure that he got to the
       emergency room.

       Q[:]   Right.   But that was one alternative you gave
       him?

       A[:]   That was one alternative I gave him.

       Monahan’s medical chart at Wakefield for August 28, 2001

contained the written statement “Refused to go to ER now,” but

no other entry regarding any discussion between Wiggins and

Monahan on the need to go to an emergency room.

       At some time after 1:00 pm, Wakefield’s receptionist

telephoned Sandra Rickmond, the wife of Monahan’s boss Richard

E. Rickmond, and advised her that Monahan was ready to leave the

facility.     According to Mrs. Rickmond, that is all anyone from

Wakefield told her.

       Mrs. Rickmond then went to Wakefield and drove Monahan to

his home.     On the drive home, Monahan complained of dizziness

and double vision.     Upon arriving at his home, Monahan went to

bed.

       Mrs. Monahan testified that when she arrived home, her

husband said that Wiggins told him to go home, get in bed, and



                                    5
return on Friday.      Mrs. Monahan left the bedroom briefly, and

when she returned, Monahan had fallen out of bed.      After failing

to reach anyone at Wakefield on the telephone, Mrs. Monahan

decided to drive her husband to Riverside Hospital in Newport

News.       En route to the hospital, Mrs. Monahan telephoned

Wakefield again and spoke to Curl.       She informed Curl that she

was driving her husband to Riverside.      Curl testified that she

encouraged Mrs. Monahan to drive her husband to the Smithfield

rescue squad for transport to a hospital.      Their conversation

ended abruptly apparently due to a disruption in the cellular

telephone service.

        The Monahans arrived at Riverside at approximately 3:00

p.m. and Monahan was diagnosed as having suffered a stroke.5        One

of Monahan’s rehabilitation physicians, Dr. Mark A. Ross,

testified that as a result of the stroke, Monahan had incurred

permanent problems with his speech, vision, movement and

mobility, and balance.      Ross further testified that Monahan

needed “ongoing medical management” to prevent future strokes

and “can’t be left alone for long periods of time and be counted

on to tend to his own needs properly.”      A vocational specialist

testified that the stroke had left Monahan “unable to perform

        5
       The exact time the stroke occurred is unknown because it
was a “stroke in evolution” in that it “progresses – it starts,
and it goes on for a few hours.” One of Monahan’s expert
witnesses testified that it most likely occurred “while
[Monahan] was being transported to Riverside.”


                                     6
. . . gainful, competitive employment” because of his

“difficulty with walking, his balance difficulties, his

communication impairments, and his fatigue.”

     Monahan filed a motion for judgment, which he later

amended, against Obici alleging Obici failed to provide adequate

medical care to him on August 28, 2001, and that he suffered a

stroke as a result of Obici’s negligent treatment.6    Monahan

asserted Obici deviated from established standards of care

because Wiggins failed to properly diagnose Monahan’s condition

and ensure that he received the immediate emergency room care

that he needed to prevent or lessen the effect of a stroke.

Monahan requested damages in the amount of $1,600,000.    Neither

Obici’s grounds of defense nor its amended grounds of defense

raised Monahan’s failure to mitigate damages as a defense.

Apart from denying the allegations alleged in Monahan’s Motion

for Judgment, Obici pled the affirmative defenses of

contributory negligence and assumption of the risk.

     After the parties had presented their evidence to the jury,

Monahan moved the trial court to “instruct the jury to

disregard” the evidence concerning Mrs. Monahan’s actions in

transporting her husband to Riverside Hospital rather than a



     6
       Monahan also named Wiggins as a party defendant, but later
took a nonsuit as to her. Wiggins is thus not a party to this
appeal.


                                7
closer hospital.7   Obici cross-examined Mrs. Monahan regarding

her decision to drive her husband to Riverside Hospital even

though it was “farther away” than two other emergency room

facilities.   Mrs. Monahan admitted driving to Riverside even

though it was “[n]ot quite 20 [minutes further away,] but I knew

it was a little further” than [Obici].   Mrs. Monahan also

acknowledged that she elected not to stop at “a rescue squad

along the way in Smithfield.”

     Obici also questioned Dr. J. Gordon Burch, one of Monahan’s

expert witnesses, regarding the time it took for Mrs. Monahan to

drive to Riverside.   The cross-examination of Dr. Burch contains

the following colloquy:

     Q [Obici’s counsel:] [Y]ou’ve read that [Ms. Monahan]
     could have gotten [Monahan] to Obici in 30 minutes,
     and she took him to Riverside, and it took about 50
     minutes; is that correct?



     7
       This motion was only made orally, and Monahan did not
elaborate as to what particular testimony he sought to strike.
Similarly, Monahan’s brief does not indicate any specific
testimony; instead, he claims “Obici failed to show that the
decision to go to Riverside hospital, which was approximately 20
minutes farther away than another hospital, can be used against
Plaintiff to minimize his damages.”
     Mrs. Monahan testified that she chose to take her husband
to Riverside as opposed to other area hospitals because she
worked as a medical transcriptionist at Riverside and “I knew
all the doctors there, because I knew exactly where to go to the
emergency room. I knew the emergency room physicians. I knew
the emergency room nurses, the techs.” Obici did direct
attention to that decision in its closing argument to the jury
and the fact that may have delayed Monahan’s access to emergency
room treatment.


                                 8
     A [Dr. Burch:] Yes. I am aware of that. There’s
     other testimony in the record that indicates that it
     might have been a harder trip to Obici because of
     lights and traffic and so on, and actually the time
     may have been very comparable. Riverside is the
     better hospital to go to because of their expertise in
     neurological medicine and general medicine. It’s a
     major medical center.

     Q[:] But it added at least 20 minutes beyond the
     drive to Obici to take him to Riverside?

     A[:] I don’t know the area well, and I don’t dispute
     that, but I understand from the record that there’s
     some difference of opinion as to the time it would
     take to get to both places.

     Responding to Monahan’s motion to instruct the jury, in

effect a motion to strike, Obici contended that even though

“[i]t’s true that there isn’t an expert that said by taking this

patient to Riverside, that there was additional damage caused,”

the evidence was relevant because Monahan’s theory of negligence

was “predicated on the notion of timely presentation to an

emergency department.”

     The trial court did not grant Monahan’s motion and ruled

     the act of Ms. Monahan in determining to take Mr.
     Monahan to Riverside Hospital for the reasons she said
     as opposed to Obici Hospital, that is – this is not
     causally connected in the sense of an act of
     negligence and some consequence . . . it is related to
     the issue of damages if that issue – if the jury gets
     [to] that issue.

     Monahan also moved to exclude Obici’s proposed mitigation

of damages instruction on the grounds that Obici failed to plead

mitigation of damages as an affirmative defense and there was



                                9
insufficient evidence for an instruction.   The trial court

overruled the motion finding that mitigation “is a duty on the

part of every plaintiff, and I don’t find that it’s an

affirmative defense.”   Over Monahan’s objection, the trial court

gave Obici’s requested instruction to the jury: “The plaintiff

has a duty to minimize his damages.    If you find that the

plaintiff did not act reasonably to minimize his damages and

that, as a result, they increased, then he cannot recover the

amount by which they increased.”

     The jury returned a verdict in favor of Monahan in the

amount of $215,000.   The trial court entered judgment approving

the verdict by final order of April 15, 2005 to which Monahan

objected on the basis of the mitigation instruction and the

refusal to strike the testimony on the choice of hospital as

proper evidence regarding mitigation of damages.

     We awarded Monahan this appeal.

                           II. ANALYSIS

     Monahan’s assignments of error raise three issues for our

review.   First, whether the trial court erred in finding that

mitigation of damages was not an affirmative defense that must

be specifically pled in order to be raised as a defense.

Second, whether the trial court erred in denying Monahan’s

motion to strike the evidence that Monahan’s wife chose to

transport him to Riverside Hospital as opposed to a closer


                                10
hospital.    And third, whether the trial court erred in finding

sufficient evidence existed to support a mitigation of damages

instruction.   We consider each issue in turn.

                 A.   Pleading Mitigation of Damages

     Monahan contends that mitigation of damages cannot be

raised as a defense unless it has been specifically pled by the

defendant.   This is so, he asserts, because mitigation is an

affirmative defense and “[i]t is axiomatic that an affirmative

defense must be specifically pled, but also must be

affirmatively pled.”    Monahan cites no case law to support his

contention, but references a treatise that states: “[t]here are

numerous issues that the defendant must himself plead as

affirmative defenses.    If he fails to raise these issues they

are deemed to be waived.”8    Monahan also argues that Rule

3:18(e)9 “contemplates that affirmative defenses must be pled”

because it states that they “may . . . be included in the same

paper” as a defendant’s grounds of defense, counterclaims,

cross-claims, pleas, demurrers, and other motions.     Because

Obici did not raise mitigation in its initial or amended Grounds

of Defense, or in any other written pleading, Monahan avers

“Obici failed to properly place the question of mitigation in



     8
       W. Hamilton Bryson, Bryson on Civil Procedure
§ 6.03[8][a], at 6-40 to –41 (4th ed. 2005).
     9
       Former Rule 3:16(f).


                                  11
issue, and was not entitled to pursue it or obtain an

instruction on it.”

     Obici responds by arguing that although Virginia case law

identifies mitigation as an affirmative defense, it “has never

mandated that mitigation of damages must be specifically pled.”

Obici contends that an affirmative defense such as mitigation of

damages does not have to be specifically pled, but “may be

forthcoming from the evidence adduced at trial.”

     Whether mitigation of damages must be specifically pled is

an issue of first impression in Virginia.   For the reasons that

follow, we agree with Obici that mitigation of damages need not

be specifically pled in order for a defendant to assert it,

provided the issue has otherwise been shown by the evidence.

     We have held on numerous occasions that mitigation of

damages is an affirmative defense.10   Forbes v. Rapp, 269 Va.

374, 380, 611 S.E.2d 592, 596 (2005) (“An assertion that an

injured party has failed to mitigate damages is an affirmative

defense”); see also R.K. Chevrolet v. Bank of the Commonwealth,

256 Va. 74, 77, 501 S.E.2d 769, 771 (1998); Marefield Meadows,

Inc. v. Lorenz, 245 Va. 255, 266, 427 S.E.2d 363, 369 (1993);


     10
       The trial court was incorrect when, in reference to
mitigation, it opined, “I don’t find that it’s an affirmative
defense.” However, this ruling was harmless error as it did not
affect the ultimate conclusion that a specific pleading of
mitigation was not required. Blue Stone Land Co. v. Neff, 259
Va. 273, 279, 526 S.E.2d 517, 519-20 (2000).


                                12
Foreman v. E. Caligari & Co., 204 Va. 284, 290, 130 S.E.2d 447,

451 (1963).   Consequently, the defendant bears the burden of

proving that the plaintiff failed to mitigate his damages.     R.K.

Chevrolet, 256 Va. at 77, 501 S.E.2d at 771.

     It has long been required that a party raise specific

defenses (just as a plaintiff must give notice of claims) so

that surprise and prejudice at trial from late revelation of

unanticipated legal theories is avoided.   See, e.g., Chesapeake

& O. Ry. v. Osborne, 154 Va. 477, 506, 153 S.E. 865, 873 (1930)

(filing of a grounds of defense by defendant “limited in its

defenses to the ground there stated”); see also City Gas Co. v.

Poudre, 113 Va. 224, 226, 74 S.E. 158, 160 (1912) (purpose of

requiring a grounds of defense is “to give the plaintiff

reasonable notice of the particular defense upon which the

defendant expects to rely, so that he may not be prejudiced by

surprise”).   This has generally led to a requirement that

affirmative defenses must be pled in order to be relied upon at

trial.   See, e.g., Brooks v. Bankson, 248 Va. 197, 206, 445

S.E.2d 473, 478 (1994) (defense of fraud).

     Exceptions to this general rule have been recognized in

some factual contexts where the issue addressed by an

affirmative defense was not disclosed in a plaintiff’s pleading,

and only became apparent as the evidence was being received at

trial.   In such instances, it has been held that an affirmative


                                13
defense issue is properly heard even though it was not pled.

See, e.g., Lawson v. States Constr. Co., 193 Va. 513, 521, 69

S.E.2d 450, 455 (1952) (statute of frauds); McKee v. McKee, 206

Va. 527, 532, 145 S.E.2d 163, 166 (1965) (condonation); Franklin

Jewelry Co. v. Masch, 160 Va. 756, 764-65, 169 S.E. 583, 584

(1933) (ultra vires); see also Twardy v. Twardy, 14 Va. App.

651, 656-57, 419 S.E.2d 848, 851 (1992) (estoppel need not have

been pled because “nothing of record suggested that the issue of

estoppel would be involved” until later in the proceedings).

     Other affirmative defenses have been addressed by statute,

which either obviate the need for pleading, or expressly require

that a particular defense be pled.    Compare Roanoke Mtg. Co. v.

Henritze, 151 Va. 220, 225, 144 S.E. 430, 431 (1928) (under

prior law, usury shown on the face of the contract precluded

recovery of interest, even if not pled), with, e.g., Jones v.

Jones, 249 Va. 565, 571-72, 457 S.E.2d 365, 369 (1995) (under

Code § 8.01-235 an affirmative defense of the statute of

limitations must be specifically pled: “[t]he objection that an

action is not commenced within the limitation period prescribed

by law can only be raised as an affirmative defense specifically

set forth in responsive pleading”).

     It is generally true that mitigation of damages, like other

defenses, is routinely and properly raised in a defendant’s

pleadings.   However, the requirements for raising mitigation of


                                14
damages in a pleading have not been addressed by statute, and no

prior case law has affirmatively noted that failure to plead

this particular defense waives the right to rely on such proof

at trial.

     While our prior cases have not directly addressed the

pleading of mitigation, our decision in Chappell v. Smith, 208

Va. 272, 156 S.E.2d 572 (1967), is instructive on the issue

before us.   Our decision in Chappell addresses what evidence a

defendant in default for failing to file either a responsive

pleading or a grounds of defense could present during the trial

for damages.   This Court held: “Neither [former] Rule 3:19 nor

any statute prohibits counsel for a defendant in default from

. . . offering evidence in mitigation of damages.”   Id. at 276,

156 S.E.2d at 575.   The defendant was thus permitted to raise

the affirmative defense of mitigation of damages despite that

defense not having been specifically pled.

     Our holding in Chappell highlights the distinctive

characteristics that mitigation of damages has as an affirmative

defense.    Unlike most affirmative defenses, mitigation of

damages is not a defense that, if proven, constitutes an

absolute bar to the plaintiff’s claim.   Instead, a defense of

mitigation recognizes that a plaintiff’s conduct following the

defendant’s negligence “may be a reason for reducing damages,”

but it does not necessarily bar all recovery.   Sawyer v.


                                 15
Comerci, 264 Va. 68, 77, 563 S.E.2d 748, 754 (2002).     This

context distinguishes mitigation of damages from those other

affirmative defenses or special pleas, which, if proven,

constitute an absolute defense to the claim.   See, e.g., Nelms

v. Nelms, 236 Va. 281, 289, 374 S.E.2d 4, 9 (1988) (listing as

“[f]amiliar illustrations” such defenses as statute of

limitations, absence of proper parties, res judicata, usury, a

release, prior award, infancy, bankruptcy, denial of

partnership, bona fide purchaser, and denial of an essential

jurisdictional fact alleged in the bill) (citing E. Meade,

Lile’s Equity Pleading and Practice, § 199, p. 114 (3d ed.

1952)).

     Because neither statute nor our precedent requires that

mitigation of damages be specifically pled as a condition

precedent to its assertion as an affirmative defense, and taking

into account the unique characteristics of this defense, we hold

that mitigation of damages is not required to be specifically

pled before a defendant may assert it, provided the issue has

been otherwise shown by the evidence.11   The trial court thus did

not err in permitting Obici to offer a mitigation of damages

instruction despite its failure to plead that defense, subject

to the presence of sufficient evidence, which we address below.

     11
       Our holding is limited solely to mitigation of damages as
an affirmative defense and we express no opinion as to the
specific pleading of any other affirmative defense.


                                16
            B.   Choice of Hospital as Mitigation Evidence

     Monahan also assigns error to the trial court’s failure to

grant his motion to instruct the jury to disregard the evidence

regarding the emergency room facility to which Monahan was taken

following his examination at Wakefield.    He asserts “[t]he

evidence shows that the decision to take Monahan to Riverside

hospital was made solely by his wife” and that her conduct

cannot be imputed to him for the purpose of proving a failure to

mitigate his damages.    Monahan emphasizes that Obici conceded at

trial that no evidence suggested that the decision to take

Monahan to Riverside “was a direct and proximate cause of any of

his injuries or damages.”

     Obici responds that Monahan’s own theory of the case put at

issue the timeliness of treatment, including the relevance of

the delay in treatment caused by going to Riverside instead of a

closer facility.    It argues that concluding the jury used the

choice of hospital evidence to reduce damages is “the stuff of

speculation” that ignores the other evidence supporting the

defense of failure to mitigate damages.

     Obici conceded that the evidence did not support a

claim that the decision of which emergency care facility to

use was a direct or proximate cause of any damages Monahan

suffered.    Obici acknowledged to the trial court that

“there isn’t an expert that said by taking this patient to


                                  17
Riverside, that there was additional damage caused.”

Furthermore, Obici submitted it was not arguing that this

evidence “was a superseding or intervening cause” of the

stroke.

     As such, there was no evidence that by going to Riverside

rather than another facility, Monahan’s injuries were in any way

affected.    Thus, any evidence about choice of emergency room

facility was irrelevant to whether Monahan failed to mitigate

his damages.   The trial court therefore erred in refusing to

instruct the jury to disregard that evidence as Monahan properly

requested.

     Furthermore, this error cannot be considered harmless.      The

jury was improperly permitted to consider this testimony when

deciding a verdict and, as discussed below, the jury was

erroneously instructed regarding mitigation of damages.    We have

previously said, “where evidence and an instruction have been

erroneously submitted to the jury and the record does not

reflect whether such evidence and instruction formed the basis

of the jury’s verdict, we must presume that the jury relied on

such evidence and instruction in making its decision.”    Johnson

v. Raviotta, 264 Va. 27, 39, 563 S.E.2d 727, 735 (2002).

Accordingly, we must presume the jury’s consideration of damages

was affected by the ability to consider the improper choice of

hospital evidence under the mitigation instruction.


                                 18
   C.   Sufficiency of the Evidence to Support the Mitigation
                           Instruction

     Monahan further contends the trial court erred in granting

a jury instruction on mitigation of damages because the evidence

did not support such an instruction.   Even if Obici was not

required to specifically plead mitigation as we have decided,

Monahan asserts there was no evidentiary basis for the

mitigation instruction.   Monahan contends “there is insufficient

evidence that Monahan refused any treatment recommended by

Wiggins” and therefore there is no independent basis upon which

the trial court could give a mitigation instruction.   We agree

with Monahan.

     Wiggins testified that she gave Monahan a choice to go to

the emergency room while at Wakefield or to go home to rest and

have his wife take him to the emergency room if his condition

worsened.   Monahan avers he complied with this instruction by

choosing the given alternative of going home, getting into bed

and waiting for his wife.

     Obici responds that there was “ample evidence” to support

the mitigation instruction.   Obici cites the testimony of not

only Wiggins, but also Monahan’s expert witnesses, to support

its contention that “the jury was required to determine whether

Monahan had ignored Wiggins’ medical advice and in doing so,

failed to minimize his damages.”



                                19
        A patient’s duty to mitigate damages after receiving

negligent medical care is a specific application of the general

requirement that:

        One who is injured by the wrongful or negligent acts
        of another, whether as the result of a tort or of a
        breach of contract, is bound to exercise reasonable
        care and diligence to avoid loss or to minimize or
        lessen the resulting damage, and to the extent that
        his damages are the result of his active and
        unreasonable enhancement thereof or are due to his
        failure to exercise such care and diligence, he cannot
        recover.

Lawrence v. Wirth, 226 Va. 408, 412, 309 S.E.2d 315, 317 (1983)

(quoting Haywood v. Massie, 188 Va. 176, 182, 49 S.E.2d 281, 284

(1948)).    A mitigation of damages instruction is thus

appropriate when the evidence shows that a plaintiff failed to

mitigate his damages by “neglect[ing] his health following his

physician’s negligent treatment.” Sawyer, 264 Va. at 77, 563

S.E.2d at 754 (quoting Lawrence, 226 Va. at 412, 309 S.E.2d at

317).

        When asked to review jury instructions given by a trial

court, “our responsibility is to see that the law has been

clearly stated and that the instructions cover all issues which

the evidence fairly raises.”    Lombard v. Rohrbaugh, 262 Va. 484,

498, 551 S.E.2d 349, 356 (2001) (quoting Swisher v. Swisher, 223

Va. 499, 503, 290 S.E.2d 856, 858 (1982)) (internal quotation

marks omitted).    Under well-settled principles, “[a] jury

instruction may be given only if there is evidence to support


                                  20
the instruction.”      Pollins v. Jones, 263 Va. 25, 28, 557 S.E.2d

713, 714 (2002) (citing Van Buren v. Simmons, 235 Va. 46, 51,

365 S.E.2d 746, 749 (1988)).     “The evidence presented in support

of a particular instruction ‘must amount to more than a

scintilla.’”     Schlimmer v. Poverty Hunt Club, 268 Va. 74, 78,

597 S.E.2d 43, 45 (2004) (quoting Justus v. Commonwealth, 222

Va. 667, 678, 283 S.E.2d 905, 911 (1981)).

        In the case at bar, the record is insufficient to sustain

the mitigation of damages instruction because it does not

reflect any act of neglect by Monahan following Wiggins’

treatment.     Wiggins’ testimony clearly reflects that she gave

Monahan a choice of either going to the emergency room or going

home:

        Q [Monahan’s counsel:] [I]sn’t it true that you told
        Larry that he either needed to go to the emergency
        room or please tell your wife to take you there if
        there’s any change in the least?

        A [Wiggins:]   Yes.

        Q[:] So you gave him the option of either going to
        the emergency department or telling his wife to take
        him to the emergency department . . . isn’t that what
        you told him?

        A[:]   Yes.

        The uncontradicted evidence shows that Monahan chose one of

the options his health care provider, Wiggins, offered to him:

he had someone drive him home and went to bed.     After his wife

arrived home, his condition had worsened, and he was taken to an


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emergency room, as Wiggins had suggested.    Because Wiggins gave

Monahan the alternative course of action of either going to the

emergency room or going home, and because Monahan complied with

that advice by electing to go home, his decision cannot be the

basis for a mitigation of damages instruction.   Monahan did not

act contrary to the advice given to him by his health care

provider, but followed one of the courses offered.   Therefore,

no act of negligence supporting a failure to mitigate damages

can be attributed to him based on his following the course of

action offered by Wiggins.   Obici points to no other evidentiary

basis for the instruction.

     The trial court thus erred in granting Obici’s instruction

on mitigation of damages, as there was no evidentiary basis to

support it.    “If an issue is erroneously submitted to a jury, we

presume that the jury decided the case upon that issue.”

Clohessy v. Weiler, 250 Va. 249, 254, 462 S.E.2d 94, 97 (1995).

Accordingly, we cannot say that the trial court’s error in

instructing the jury on the plaintiff’s duty to mitigate his

damages was harmless. We must presume the jury’s consideration

of damages was affected by the improperly given mitigation

instruction.

                           III. CONCLUSION

     Obici did not assign cross-error to the trial court’s

judgment that it was negligent.    Thus, we do not review that


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issue and will affirm the trial court’s judgment as to Obici’s

liability.   Upon retrial, the finding of liability is binding

upon Obici, and Monahan will not be required to establish that

Obici was negligent.   We will also affirm that portion of the

trial court’s judgment that Obici was not required to

specifically plead mitigation of damages as a condition

precedent to asserting that defense.   However, we will reverse

the trial court’s judgment as to damages because it was error to

give the instruction on mitigation of damages and not to grant

the motion to strike the evidence concerning the decision to

drive Monahan to Riverside Hospital.

     We will therefore remand the case for a new trial limited

to the issue of damages.   See Jenkins v. Pyles, 269 Va. 383,

390, 611 S.E.2d 404, 408 (2005); Rawle v. McIlhenny, 163 Va.

735, 750, 177 S.E. 214, 221 (1934) (“Where the verdict is for

substantial though inadequate damages, it cannot upon any

reasonable theory be considered a finding for the defendant, and

it should be set aside, and a new trial granted which ordinarily

should be limited to the question of the amount of damages”).

                                                 Affirmed in part,
                                                 reversed in part,
                                                and remanded.




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