Present:   All the Justices

WILLIAM C. STEVENSON

v.   Record No. 990032     OPINION BY JUSTICE ELIZABETH B. LACY
                                       November 5, 1999
COMMONWEALTH OF VIRGINIA

              FROM THE COURT OF APPEALS OF VIRGINIA

      William C. Stevenson, an Associate Professor of Surgery

and Director of Liver Transplantation at the University of

Virginia Medical School, was indicted by an Albemarle County

grand jury on one count of forgery and one count of uttering a

forged writing in violation of Code § 18.2-172.   He pled not

guilty and, following a two-day trial, a jury convicted Dr.

Stevenson of forgery and recommended a fine of $1.00.    The

jury acquitted Dr. Stevenson on the charge of uttering a

forged document.   The Circuit Court of Albemarle County

entered judgment on the jury verdict.   The Court of Appeals,

following a rehearing en banc, affirmed the judgment of the

trial court by an evenly divided vote without opinion.

Stevenson v. Commonwealth, 28 Va. App. 562, 507 S.E.2d 625

(1998).

      The issue presented to us in this appeal is whether the

facts of this case establish beyond a reasonable doubt that

Dr. Stevenson committed forgery as charged in the indictment,

that is, whether "[o]n or about February 6, 1996, in the

County of Albemarle, WILLIAM C. STEVENSON did unlawfully,
feloniously and knowingly forge a cardiac stress test writing,

to the prejudice of Trigon Blue Cross/Blue Shield."    The crime

of forgery requires not only that a writing be forged, but

that the forged writing prejudiced or could prejudice the

right of another.     Terry v. Commonwealth, 87 Va. 672, 673, 13

S.E. 104, 104 (1891).

     In this case, Dr. Stevenson admits that he produced a

forged writing by altering a date on his patient's cardiac

stress test report.    However, Dr. Stevenson argues that when

he altered the stress test report, there was no possibility

that the altered document did or could prejudice Trigon's

rights.   Therefore, Dr. Stevenson asserts he was not guilty of

the crime of forgery.    We agree.

     The evidence taken in the light most favorable to the

Commonwealth, the prevailing party at trial, showed the

following.   In 1995, Leonard Kraditor, a patient of Dr.

Stevenson, began experiencing liver failure.    Dr. Stevenson

sought to have Kraditor placed on the nationwide list of

patients needing organs, but was told by the University of

Virginia Medical Center (Medical Center) personnel that it

would not place Kraditor on the transplant list until

Kraditor's medical insurance carrier, Trigon Blue Cross/Blue

Shield (Trigon), pre-authorized payment for the transplant

operation.


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     Dr. Stevenson was anxious to have Kraditor placed on the

transplant list before the Christmas holiday.   Although he

submitted a letter explaining the medical necessity for the

liver transplant as part of the procedure for obtaining pre-

authorization from Trigon, and attempted to contact the

director of medical policy at Trigon, he was unable to secure

the pre-authorization before the Christmas holiday.

Nevertheless, the administrator of the Medical Center agreed

to place Kraditor on the transplant list without receiving

pre-authorization for the transplant procedure from Trigon.

     A liver became available and Dr. Stevenson successfully

performed the transplant operation on January 21, 1996.    The

next day, January 22, 1996, unaware that the surgery had been

performed, Trigon rejected the pre-authorization request

because Trigon considered Kraditor a high risk for the surgery

and needed the "results of his cardiac, renal and pulmonary

evaluations" before pre-authorization could be issued.

     By January 28, Kraditor's body was rejecting the new

liver.   When Dr. Stevenson sought to have Kraditor placed on

the transplant list again, he was told that the Medical Center

would not place Kraditor on the list again until the "pre-

authorization" for the now-completed transplant surgery was

received from Trigon.   The only cardiac evaluation available

to Dr. Stevenson was a cardiac stress test performed on


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Kraditor in April 1994.   On January 30 or 31, Dr. Stevenson

changed the date shown on the report for the administration of

Kraditor's stress test from April 1994 to October 1995.     After

attaching a cover note to the altered stress test report, Dr.

Stevenson left the papers on his desk.    Shortly thereafter,

Kraditor decided not to undergo further transplant surgery and

informed Dr. Stevenson of his decision.   Kraditor died of

liver failure on February 2, 1996.

     On February 6, 1996, the altered stress test report was

sent to Trigon.    Relying on the altered stress test report as

an indication that Kraditor's cardiovascular system could

survive the transplant surgery and recovery, on February 12,

1996 Trigon issued the pre-authorization for Kraditor's now-

completed liver transplant.   Trigon was unaware that the

surgery had been successfully completed at the time it issued

this pre-authorization.

     While this evidence establishes that Trigon relied on the

altered stress test report in issuing its pre-authorization

for Kraditor's January 21 liver transplant operation, it does

not establish that this reliance and subsequent issuance of

the pre-authorization prejudiced or could have prejudiced

Trigon's rights.   According to Trigon officials who testified

at trial, pre-authorization is a mechanism which allows the

medical provider to obtain a preliminary indication of whether


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Trigon will pay the costs associated with the medical

treatment to be performed, prior to incurring the expense of

performing the treatment.   Pre-authorization, according to Dr.

Richardson Grinnan, Trigon's Senior Vice-president and Chief

Medical Officer, is a "service to physicians and subscribers

to prevent after-the-fact medical necessity denials."

Although some insurance plans require pre-authorization as a

condition for payment of a claim, Kraditor's health insurance

policy with Trigon did not.   Therefore, any prejudice to

Trigon in terms of liability for the transplant procedure did

not include the existence or non-existence of pre-

authorization by Trigon for the procedure.

     More importantly, assuming that issuance of the pre-

authorization could limit Trigon's ability to contest the

medical necessity of a procedure after the fact, Trigon did

not and could not have suffered such prejudice under the facts

of this case.   Dr. Grinnan testified that when procedures are

not pre-approved, determinations as to payment are made on

information available after the procedure.    In this case,

according to Dr. Grinnan, when Kraditor survived the liver

transplant without cardiac complications, the altered stress

test "would not have had an adverse determination on whether

or not [Trigon] would have paid that bill."   Dr. Grinnan and

Dr. Lawrence Colley, head of Trigon's medical policy


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department, both testified that Trigon would have approved

payment for the procedure once it learned that Kraditor had

survived the operation even if there had been no stress test

report.

     Our conclusion that potential prejudice to Trigon was not

established in this case is not based simply on the fact that

Trigon was liable for the cost of the procedure whether or not

the pre-authorization was issued.   The controlling fact in

this case is that, at the time the forged writing was made, no

prejudice did or could attach to Trigon as a result of the

altered stress test report, because at that time the surgery

had been successfully completed and Trigon acknowledged that

its liability existed at that time.   Accordingly, any

limitation on Trigon's right to contest the medical necessity

of the procedure imposed by the subsequent issuance of the

pre-authorization was immaterial.   Because Trigon's liability

could not have been affected by the forged writing, no real or

potential prejudice to Trigon could result from the forged

writing.   Therefore, in the absence of such prejudice to

Trigon, the crime of forgery was not established.

Accordingly, we will reverse the conviction and dismiss the

indictment.

                                         Reversed and dismissed.




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