A $2 Million Verdict Stands: Virginia's Dead Man's Statute Tamed in Bon Secours-DePaul v. Rogakos-Russell
Some of the hardest wrongful death cases are the ones where the best witness to what happened is the person who died. A patient falls in a hospital room with no one else present. A driver dies at the scene with no camera watching. The defense theme writes itself: nobody really knows what happened. And for generations, defense lawyers in Virginia have reached for an old evidentiary rule — the Dead Man's Statute — to try to keep the deceased person's own words out of the courtroom.
Earlier this month, on January 2, 2025, the Supreme Court of Virginia pushed back. In Bon Secours-DePaul Medical Center v. Rogakos-Russell (Record No. 230879), the Court affirmed a $2,000,000 wrongful death verdict for the family of Father Constantine Rogakos, an 86-year-old Greek Orthodox priest who died after a fall at a hospital ultrasound appointment.
What happened
Father Rogakos arrived for an outpatient ultrasound and was left alone in the exam room to change out of his clothes. As he did, he leaned on a wheeled stretcher. The stretcher was unlocked. It moved, he fell, and he struck his head. He died of his injuries. Before his death, he told others — including a fellow priest and his treating physician — that the stretcher had rolled out from under him when he leaned on it.
At trial, the jury heard that account through those witnesses and returned a $2 million verdict against the hospital. On appeal, the hospital argued that Virginia's Dead Man's Statute, Code § 8.01-397, barred the decedent's statements because they were uncorroborated.
What the Dead Man's Statute actually does
The Dead Man's Statute is one of the most misunderstood rules in Virginia practice. In plain English: when one party to a lawsuit is dead (or otherwise incapable of testifying), the other side cannot win a judgment on its own uncorroborated testimony. The rule exists to keep a living, interested party from taking advantage of an opponent who can no longer answer. The statute also contains a hearsay exception that lets a dead person's own statements come into evidence when they would otherwise be excluded as hearsay.
The hospital's argument turned that shield into a sword: it claimed the decedent's statements needed corroboration before the jury could hear them. The Supreme Court of Virginia disagreed. The corroboration requirement applies to the testimony of an interested party — someone with a stake in the outcome — and the disinterested witnesses who relayed Father Rogakos's account (his priest colleague and his treating physician) were not interested parties. Nor was Father Rogakos himself an "adverse or interested party" within the meaning of the statute. His account of the unlocked stretcher came in, corroboration not required.
| Defense argument | What the Court held |
|---|---|
| The decedent's statements about the stretcher required corroboration | No — corroboration applies to an interested party's testimony; disinterested witnesses relaying the decedent's account need none |
| The decedent counted as an "interested party" | No — the decedent was not an adverse or interested party under Code § 8.01-397 |
| The jury should have been instructed on "two causes" of the fall | Refusal of the defense's two-causes instruction was proper |
| Causation was speculative without an eyewitness | Ample circumstantial evidence supported proximate cause |
The Court also found the circumstantial evidence of causation entirely sufficient — the unlocked wheels, the position of the stretcher, the physics of the fall. Juries are allowed to draw reasonable inferences; they do not need a videotape. The Virginia Trial Lawyers Association appeared as amicus curiae supporting the family.
What this means for injured people in Virginia
- Death does not silence the victim. When an injured person describes what happened before passing away — to family, to clergy, to doctors — those accounts can reach the jury through the people who heard them. Hospitals and insurers can no longer assume the story dies with the patient.
- Falls in medical settings are provable cases. Unattended elderly patients, unlocked equipment, missing safety protocols — these cases often lack eyewitnesses by their very nature. Rogakos-Russell confirms that circumstantial proof and the decedent's own reported words can carry the day.
- Tell people what happened. For families: if a loved one is injured and able to communicate, their contemporaneous account to doctors, nurses, friends, and family may later be the most important evidence in the case. Write down who heard what, and when.
- Verdicts are durable. This decision continues a welcome trend of Virginia's appellate courts respecting jury verdicts rather than second-guessing them.
We try wrongful death and hospital negligence cases across Virginia, and decisions like this one matter in the trenches: they determine whether a family gets to tell the jury the whole story.
If you or a loved one has been hurt, call Posey Lebowitz at (202) 524-0123 or send us a message for a free consultation.
Part of our DMV case law archive, compiled in 2026 to reflect the archive of some of the most important decisions in injury law.