21 Aug Virginia: Medical Malpractice – a Lawyer’s Breast
On July 27, 2017, the Virginia Supreme Court decided Allison v. Brown, No. 160314, a medical malpractice case involving surgery allegedly on the wrong breast. Allison found that “the evidence adduced by the plaintiff could support a finding of battery,” id. at 12; but that the Complaint alleged only the theory of negligence, not of intentional battery; that the Complaint was amended too late to add battery, because Plaintiff did not cross-appeal the dismissal with prejudice of the battery count, id. at 7n.3; that the jury instructions on battery and informed consent were erroneous; that jury verdict for Plaintiff must be reversed; and that Plaintiff was entitled to retrial on negligence theory on remand. Id. at 12-14.
Allison ends speculation by some after Mayr v. Osborne, 293 Va. 74 (2017) whether medical battery survived in Virginia. Allison also noted that the Virginia Supreme Court has not squarely addressed whether Virginia’s law of informed consent is an objective standard or a subjective standard. Id. at 11 n.5.