Virginia: Medical Malpractice – a Lawyer’s Consent

Virginia: Medical Malpractice – a Lawyer’s Consent

On October 31, 2014, the Virginia Supreme Court issued Fiorucci v. Chinn, No. 131869, affirming a jury verdict in favor of the patient against the doctor for medical malpractice. It held the circuit court did not err in “excluding evidence of the risk of surgery discussions between Dr. Fiorucci and Chinn,” id. at *1, 6-7; since the patient did not raise “informed consent,” i.e., “did not allege that Dr. Fiorucci failed to inform him of the risks of the extractions or that he was unaware of any particular risks”. Id. at *2n.2.

Fiorucci explained that the “informed consent” doctrine (precluding evidence of informed consent when informed consent was not at issue) “applies equally to claims premised on pre-operative negligent treatment, specifically including negligent diagnosis,” as to “negligent performance of a medical procedure,” such as surgery. Id. at *5. The Virginia Supreme Court rejected the doctor’s contentions that the patient made informed consent an issue by his voir dire questioning or by his standard-of-care expert testimony. Id. at *5-6.