In its opinion filed on July 27, 2017, the Supreme Court of Virginia (“Virginia Supreme Court”) reversed and remanded the Virginia medical malpractice jury’s verdict in favor of the plaintiff, who alleged that the defendant surgeon operated on both of her breasts after she withdrew her consent to operate on her left breast, thereby leading to injury to her left breast that required further surgical procedures on her left breast.
The plaintiff had been diagnosed with breast cancer and the defendant surgeon had performed a bilateral mastectomy on the plaintiff on June 15, 2010, followed by chemotherapy and radiation therapy in the area of her left breast where the cancer had been removed. The radiation treatment damaged the tissue of the targeted area, which required subsequent surgeries on the left breast and multiple reconstructive surgeries on both breasts, from June 2010 through August 2011.
On October 3, 2011, the plaintiff and the defendant surgeon discussed another breast revision surgery, and the original plan was for the defendant surgeon to operate on both breasts. The plaintiff alleged that she changed her mind and decided that the surgery should occur on the right side only, and that she informed the defendant surgeon of her change of mind during a pre-operation visit on November 7, 2011. The defendant surgeon alleged that the plaintiff consented to bilateral breast surgery. On November 22, 2011, the defendant surgeon operated on both breasts, and the plaintiff suffered significant complications to her left breast following this surgery, requiring six additional repair surgeries.
The plaintiff subsequently filed her Virginia medical malpractice complaint in which she alleged one count of “negligence” against the defendant surgeon and his medical practice, stating that the defendant surgeon “performed surgery on the wrong breast,” that he “replaced the implant on the wrong breast,” and that he “failed to exercise the degree of skill and diligence practiced by a reasonably prudent practitioner in the field of medicine in this Commonwealth.” The plaintiff’s Virginia medical malpractice complaint further alleged that the plaintiff sustained damages “[a]s the proximate result of said negligence.” The plaintiff’s initial complaint mentioned nothing about “battery” or any other intentional tort.
On July 10, 2014, the plaintiff filed a motion for leave to file an amended complaint to add a count for battery, which the defendant opposed as being time-barred. The trial court originally ruled that the plaintiff should be granted leave to amend her complaint, but a subsequent, different judge reversed the prior ruling, finding that the plaintiff had not been diligent in pursuing the battery claim and thus entered an order on September 26, 2014 that dismissed the plaintiff’s battery claim with prejudice.
Despite repeatedly agreeing that the battery count had been dismissed with prejudice, the trial court nevertheless instructed the jury on battery and also instructed the jury on negligence and informed consent. The Virginia medical malpractice jury returned a general verdict for the plaintiff, and the defendant surgeon filed a motion to set aside the verdict. The court denied the defendant’s motion. The defendant appealed.
The Virginia Supreme Court stated that the plaintiff’s initial complaint said nothing about battery or intentional conduct on the part of the defendant surgeon. The only two counts listed were for “negligence” and the totality of the allegations pointed in that direction. Depending on the evidence, a surgery on the wrong body part can constitute either battery or negligence. However, the Virginia Supreme Court stated that the plaintiff’s initial complaint pled one, and only one, theory of recovery, which was negligence. Nothing in the complaint informed the defendant that the plaintiff was alleging the intentional tort of battery.
The Virginia Supreme Court held that the judge who presided over the trial, despite repeatedly acknowledging that the battery claim had been dismissed with prejudice, nonetheless instructed the jury on battery, which was an error. A claim cannot be dismissed with prejudice on a pre-trial plea in bar and later be submitted to the jury. Once the court dismissed the battery claim with prejudice from the amended complaint, the only claims that remained were for negligence.
The Virginia Supreme Court further held that the trial court should have granted the defendant’s motion to strike the plaintiff’s claim of informed consent and should not have instructed the jury on that theory because the plaintiff’s claimed damages did not flow from a lack of information about the procedure, i.e., informed consent, but rather from a lack of consent altogether. Without any evidence to establish proximate causation, the informed consent claim fails as a matter of law.
The Virginia Supreme Court remanded the case for retrial solely on the plaintiff’s original negligence counts.
Source Allison, v. Brown, Record No. 160314.
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