Good Documentation is Key When Confronted with the Dead Man's Statute

Your documentation in the medical record plays a crucial role when faced with a wrongful death medical malpractice suit because of a law in Virginia known as the “Dead Man’s Statute” (see citation and summary below). This statute is an antiquated and often misunderstood law in Virginia.  Despite widespread confusion regarding the law, the Dead Man’s Statute applies in almost every case involving a deceased person.  In the medical malpractice context, the Dead Man’s Statute most frequently arises in wrongful death cases, in which the estate of a deceased patient sues a health care provider. As explained below, good documentation in the medical record is the key to overcoming the hurdles presented by the Dead Man’s Statute.  But a lack of thorough documentation may cause a provider to unfairly lose an otherwise defensible lawsuit.

In the context of a wrongful death medical malpractice case, the Dead Man’s Statute usually arises when the estate of a deceased patient brings suit against a health care provider.  To win the case, the Dead Man’s Statute requires the provider to present sufficient corroboration of the material points of his or her defense. 

“Corroboration” is critical.  While not every element of the testimony must be corroborated, at the very least, the material points must be corroborated.  Under the Dead Man’s Statute, the provider’s testimony about what happened is not sufficient on its own. Corroboration must be in the form of testimony by another witness, circumstantial evidence, or documentation.  The provider cannot corroborate his or her own testimony, nor can the provider use habit, practice, or routine as corroboration. Whether the provider’s testimony is sufficiently corroborated under the Dead Man’s Statute is usually an issue for the jury to decide, so it is critical to have sufficient corroborating evidence for the jury to examine. 

Documentation = Corroboration.  Fortunately, in most situations, providers may use the medical record to corroborate their testimony in cases involving the Dead Man’s Statute, assuming the medical records contain corroborating documentation and are business records maintained in the normal course of business.  This is just one reason why it is extremely important to provide clear and thorough documentation in the medical record!   

The Dead Man’s Statute, Virginia Code § 8.01-397, provides: In an action by or against a person who, from any cause, is incapable of testifying, or by or against the committee, trustee, executor, administrator, heir, or other representative of the person so incapable of testifying, no judgment or decree shall be rendered in favor of an adverse or interested party founded on his uncorroborated testimony. In any such action, whether such adverse party testifies or not, all entries, memoranda, and declarations by the party so incapable of testifying made while he was capable, relevant to the matter in issue, may be received as evidence in all proceedings including without limitation those to which a person under a disability is a party. The phrase "from any cause" as used in this section shall not include situations in which the party who is incapable of testifying has rendered himself unable to testify by an intentional self-inflicted injury.

For the purposes of this section, and in addition to corroboration by any other competent evidence, an entry authored by an adverse or interested party contained in a business record may be competent evidence for corroboration of the testimony of an adverse or interested party. If authentication of the business record is not admitted in a request for admission, such business record shall be authenticated by a person other than the author of the entry who is not an adverse or interested party whose conduct is at issue in the allegations of the complaint.