Medical Malpractice and Misdirected Surgery: Evolving Issues of Consent, Battery and Negligence

In a published opinion issued on July 27, 2017, the Virginia Supreme Court decided a medical malpractice appeal arising from “misdirected” surgery. That is, a surgeon’s operating on the wrong area of a patient’s body. The case, Allison v. Brown, No. 160314, 2017 Va. LEXIS 104 (July 27, 2017), focused on the plaintiff’s claims of negligence, due to an alleged lack of informed consent, and of tortious battery. In Allison, the Court relied in part on its recent decision in Mayr v. Osborne, 293 Va. 74 (2017), and further expounded on Mayr’s principles. The Mayr decision involved misdirected surgery and the patient’s resulting claim of tortious battery. Mr. Osborne required fusion on the C5-C

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