27 Feb Virginia: Medical Malpractice – a Lawyer’s Consent
On February 22, 2018, the Virginia Supreme Court decided Martin v. Lahti, No. 170524, a medical malpractice case on the admissibility of lay opinion testimony under Va. S. Ct. Rule Evid. 2:701. The Martin wrongful death case held that lay opinion testimony must be “based on the [actual] perception of the witness or on the witness’s personal knowledge,” not on speculation based on “complete absence of [supporting] evidence”. Id. at 7-10.
Martin did not decide the “merits of the objective or subjective approaches to proving causation in an informed consent case”. Id. at 6 n. 3. The subjective approach establishes causation “solely by patient testimony;” while the objective approach turns on “a prudent person in the patient’s position,” with patient testimony relevant but not controlling”. Id.