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  • Norman A. Thomas

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-C6 level, however, Dr. Mayr operated on level C6-C7. In an opinion authored by Justice Stephen R. McCullough, the Court held that “a technical battery is present where (1) the patient placed terms or conditions on consent for a particular procedure, and the doctor ignored those terms or conditions; (2) the physician intentionally performed an additional procedure beyond the procedure the patient consented to; or (3) the physician intentionally performed a different procedure or one that differs significantly in scope from the procedure for which the patient provided consent.”

In Mayr, the Court ultimately ruled that the “plaintiff’s battery claim fails as a matter of law. This does not leave a plaintiff without a remedy. In situations like this one, however, a plaintiff must prove the physician was negligent under the relevant standard of care. 293 Va. at 86. (Emphasis added).

Turning to Allison, in 2011, Deborah Brown, a breast cancer patient, “underwent a bilateral mastectomy and chemotherapy.” In the aftermath of these procedures, she needed “multiple reconstructive surgeries.” Dr. David Allison successfully performed a number of those surgeries. In late 2011, Brown and Allison discussed “yet another breast revision surgery. All agree that the original plan was for Dr. Allison to operate on both breasts.”

Yet Brown alleged that she changed her mind and “decided that the surgery should occur on the right side only. She testified that she informed Dr. Allison of this fact in a pre-operation visit.” Dr. Allison “testified contrary,” stating that Brown consented to bilateral breast surgery, and did not later withdraw that consent. Both sides presented medical records to support their respective positions.

In any event, “Dr. Allison operated on both breasts. Brown suffered significant complications to her left breast following this surgery. As a consequence, she had to undergo six additional surgeries.” Brown thereafter sued Allison and his medical practice, alleging negligence for his “surgery on the wrong breast,” necessitating “additional surgeries to repair and revise her breast,” and causing “severe and permanent injuries.” In alleging negligence, Brown contended that Dr. Allison “lacked her informed consent to operate on her left breast.”

During the lawsuit, Brown requested, and the trial court granted leave to amend the complaint to add a count alleging tortious battery. Allison responded to Brown’s amended complaint with an answer and a plea in bar. The plea in bar asserted that the statute of limitations had run on the battery claim, because “the plaintiff had not been diligent in pursuing the claim.” The trial court sustained the plea, “dismissing the battery claim with prejudice.”

A four-day jury trial produced a hung jury, and the trial court scheduled a second trial. Immediately prior to the second trial, Dr. Allison’s counsel moved to “exclude any argument or evidence concerning the existence of consent.” In support, counsel noted the dismissal of the battery claim and argued that Allison was not legally “obligated to litigate a claim that has been dismissed with prejudice.”

Dr. Allison’s pretrial motions also “challenged the plaintiff’s informed consent theory, arguing that her allegations did not raise a claim of lack of informed consent.” Instead, Allison contended that Brown’s case theory, including her expert’s anticipated opinions, “centered on the absence of consent, not a lack of informed consent.”

The trial court denied Allison’s pretrial motions, and, upon the evidence, denied his timely motions to strike Brown’s evidence.

Oddly enough, “[d]espite repeatedly agreeing that the battery count had been dismissed with prejudice, the trial court nevertheless instructed the jury on battery. The jury also was instructed on negligence and informed consent.” Following a general verdict for Brown, “Dr. Allison filed a motion to set aside the verdict on the same grounds he had articulated at trial.” The trial court denied the post-trial motion and entered judgment on the jury’s verdict. Dr. Allison appealed the judgment.

Justice McCullough wrote the Allison opinion. But two justices concurred in part and dissented in part. Justice Elizabeth A. McClanahan wrote a separate opinion in which Justice Cleo E. Powell joined.

The Court’s analysis began with a quotation of Rule 1:4(d) on notice pleading, that “[e]very pleading shall state the facts on which the party relies in numbered paragraphs, and it shall be sufficient if it clearly informs to opposite party of the true nature of the claim or defense.” It then cited Mayr for the proposition that “[d]epending on the evidence, a surgery on the wrong body part can constitute either battery or negligence.” Mayr, 293 Va. at 81.

But Brown’s initial complaint “stated nothing about battery or intentional conduct on the part of Dr. Allison.” Instead, the Court ruled that her complaint alleged counts sounding only in negligence. Moreover, the trial court dismissed with prejudice the amended complaint’s added count alleging battery.

Thus, the Court held that the trial court reversibly erred to instruct the jury on battery: “The dismissal of a claim with prejudice is conclusive as to the rights of the parties on that claim…A claim cannot be dismissed with prejudice on a pre-trial plea in bar and later be submitted to the jury.” The Court disagreed with Brown’s contention, as made before the trial court, that “battery has been in this case since its inception.”

The Court also pointedly rejected Brown’s alternative position that, “even if the pleadings do not set forth a claim for battery, there is no reversible error because the defendants had actual notice that she was pursuing a claim for battery.” It stated, “The fact that a theory was mentioned over the telephone, whispered in the hallways of the courthouse, or even presented in a prior trial does not satisfy the bedrock requirement that a defendant must be notified in a complaint what claim is being made against him.”

Brown’s informed consent-based claim fared no better. The Court summarized Brown’s view that “’a lack of consent, by its definition, means there was a lack of informed consent.’ Put another way, the plaintiff’s position is that surgery without consent is a mere subset of informed consent. Because she did not consent to the surgery, she argues, she proved her damages when the surgery nevertheless took place.” The Court stated, “We do not agree with the plaintiff.”

Justice McCullough began the informed consent analysis with a discussion on the law of tortious battery. In part quoting Mayr, and citing Tashman v. Gibbs, 263 Va. 65 (2002), the Court stated: “A battery is an intentional tort which, by definition, is not a cause of action for negligence…To prove a battery, the plaintiff must establish that the physician intentionally ‘performed an operation against the plaintiff’s will or substantially at variance with the consent given.’”

The Court then contrasted the elements of an informed consent claim, which claim results from a physician’s negligence: “To succeed on an informed consent claim, the plaintiff must establish that the physician breached the standard of care by failing to disclose the material risks associated with the treatment or procedure, or the existence of alternatives if there are any, thereby precluding the plaintiff from making an informed decision about whether to undertake a particular procedure or course of treatment.” In addition, a plaintiff must prove that the physician’s negligence proximately caused injury. “In this context, that means that the plaintiff must prove that she would not have agreed to the treatment or procedure had the physician made a proper disclosure of the risks and alternatives associated with the treatment or procedure.”

Having contrasted battery and informed consent claims, the Court concluded: “The plaintiff’s argument incorrectly collapses consent into informed consent…Her 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.” Thus, the trial court “should have granted Dr. Allison’s motion to strike the claim of informed consent and should not have instructed the jury on that theory. We reverse the judgment below on that basis as well.”

Yet, the two bases on which the trial court reversibly erred did not result in a “reversed and dismissed” disposition. Instead, the Court remanded the case. It noted that consent “is an umbrella term. A surgery performed without consent may include (1) the intentional tort of battery, (2) an operation for which the plaintiff did not consent or had withdrawn her consent, but the physician negligently, rather than deliberately performed the procedure…and (3) lack of informed consent.”

The Court’s majority then considered the jury’s instruction on the definition of informed consent, and concluded:

[T]he jury may have found the "consent" language pivotal. In other words, the jury could have read the instruction to mean that the plaintiff must not only be informed, she must also consent after having been informed. And because she did not consent, the jury could have reasoned, Dr. Allison was negligent. In light of this ambiguity, and the jury's general verdict, we remand the case for retrial solely on the plaintiff's original negligence counts.

This final conclusion sparked Justice McClanahan’s dissent, joined by Justice Powell. These justices concurred in most of the majority opinion, but the remand for a new trial went one step too far:

I dissent…from the Court’s decision to remand the case for a “retrial” on plaintiff’s “original theory of negligence” because the plaintiff only presented two theories of recovery to the jury – informed consent and battery. On appeal, Dr. Allison has prevailed on both theories. The plaintiff is not entitled to a “retrial” on a theory of negligence she never presented to the jury…Here, the Court is rewarding the plaintiff, the losing party on appeal, with a new trial where a general verdict was rendered on only improperly submitted issues.

(Emphasis and quotation marks in original).

The dissent further noted that Brown “did not seek an instruction on any negligence theory other than informed consent, and no instruction given, other than the informed consent instruction, permitted the jury to find that Dr. Allison was negligent…I disagree with the majority that the parties and the trial court unwittingly submitted this theory to the jury through the informed consent instruction.”

Finally, in a footnote, the dissenting justices lamented the future of the widely accepted instruction on informed consent as submitted to the jury at trial:

After this decision, the future utility of this instruction is unclear, particularly since the majority has not offered the bar any suggestion as to how the instruction might be revised so as not to create the ambiguity the majority posits and so as not to conceal a separate theory of negligence.


So, what are the takeaways here? Attorneys surely will gain much from a thoughtful reading the majority and dissenting opinions.

At a minimum, from a substantive law perspective, the Court made clear that misdirected surgery would implicate battery or negligence arising from an alleged absence of consent. Informed consent, as defined and now distinguished, does not encompass a complete lack of consent. But depending on the factual nuances of a given case, informed consent may yet provide an alternative theory of recovery.

The Court most certainly reaffirmed the requirment of clarity in pleadings. As a result, an attorney representing a medical malpractice plaintiff vis-à-vis misdirected surgery must plead the case with some precision. Perhaps three alternative counts will arise in such cases: (1) battery; (2) negligence through the absence of any consent; and (3) negligence through lack of informed consent. To paraphrase the “roll call” expression from Hill Street Blues: “Hey, let’s be careful out there!”

And what of the “clarity” issues arising from the standard informed consent instruction? Should the applicable Model Jury Instruction now receive a rewrite? Should counsel representing medical malpractice defendants from now on submit carefully tailored special verdict forms? The dissenting opinion raised legitimate concerns. And based on the majority’s decision to remand the case for retrial on an “absence of consent” negligence theory, defense counsel surely will undertake adaptive measures to foreclose such a result.

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