Virginia Lawyers Weekly VA Lawyers Weekly
A $3 million medical malpractice verdict (subject to the statutory cap) is reversed because the trial court allowed plaintiff-appellee to present an “impermissible informed consent theory[.]”
Overview
Appellee Bowman had a sudden, severe headache. A CT scan revealed “a bleed in the back right part of her brain, known as a ‘subarachnoid hemorrhage’ (‘SAH’).” She was in the hospital for three days and was referred to Dr. Pergolizzi.
Dr. Pergolizzi testified that the SAH could indicate a ruptured aneurysm. “Dr. Pergolizzi recommended a vascular test called a ‘cerebral angiogram’[.] …
“Dr. Pergolizzi determined that the angiogram revealed a left middle cerebral artery aneurysm and that there was no evidence of an alternative non-aneurysmal cause for the SAH. He also believed that the ‘lobular and irregular shape’ of Bowman’s aneurysm, coupled with her symptoms, suggested that the aneurysm had ruptured.”
He met with Bowman and her daughter and “told them that Bowman had ‘an aneurysm in the front left of her brain that was 2 to 3 millimeters in size that was in the shape of Mickey Mouse ears.’
“According to Bowman and her daughter, he did not communicate any concerns about the aneurysm’s irregular shape or state that there was a connection between the aneurysm and the SAH.
“Everyone agreed Dr. Pergolizzi did not mention monitoring the aneurysm as a treatment option. He testified that he did not offer monitoring because the aneurysm ‘was lobular and irregular’ and he had ‘already excluded the majority of other causes of [SAH],’ so it ‘didn’t seem safe for [him] to recommend that [Bowman] would sit there and monitor it[.]’ …
“Instead, Dr. Pergolizzi recommended … either an open craniotomy to clip the aneurysm or a less invasive coil embolization procedure.
“Bowman ultimately opted for … the coil embolization procedure for the next week. But before the scheduled date, Bowman’s headaches returned and worsened, and came with nausea and vomiting. …
“Bowman’s husband called Dr. Pergolizzi, who suggested that Bowman go to the emergency room, fearing that the aneurysm was bleeding or growing. Bowman went to the emergency room, where she underwent another CT scan. That scan did not reveal any evidence of bleeding or a new hemorrhage.
“Still, Dr. Pergolizzi elected to move forward with the coil embolization procedure. Bowman signed a form consenting to the surgery the morning of the surgery. Again, Dr. Pergolizzi did not mention monitoring as a treatment option before proceeding with surgery.
“Dr. Pergolizzi performed the coil embolization procedure. He inserted one coil without issue. After he inserted the second coil, Bowman suffered a hemorrhagic stroke, leaving her permanently impaired.”
Bowman sued for malpractice based on a lack of informed consent. The jury awarded her $3 million. Pergolizzi appealed.
Issues and rulings
“This case presents two matters of first impression in Virginia medical malpractice law.
“First, can a claim that a physician proceeded without informed consent rest on that physician’s failure to inform the patient that the physician may have misdiagnosed them, rendering other alternative treatments more appropriate?
“Second, should a factfinder assessing whether a failure to obtain informed consent was the proximate cause of later injuries ask whether the particular patient, or a reasonable patient, would have gone forward with the procedure anyway?
“We conclude that a negligence theory based on a physician’s failure to obtain informed consent must be constrained by the diagnosis that physician actually made. As a result, the trial court erred by allowing Bowman to proceed on an informed consent claim based (in part) on Dr. Pergolizzi’s failure to inform Bowman about alternative treatments that would have been appropriate had he reached a different diagnosis.
“We also hold that under Virginia law, a factfinder must determine whether the plaintiff herself – not an objective ‘reasonable person’ – would have elected alternative treatment after receiving adequate information from the physician.”
Informed consent
“We adopt the majority rule that a physician has no duty to inform a patient about the risk of misdiagnosis or about alternatives that would only be appropriate had the physician correctly diagnosed the patient.
“Negligent misdiagnosis and lack of informed consent are distinct theories of negligence. The trial court erred in allowing Bowman’s experts to testify that Dr. Pergolizzi’s duty to Bowman included disclosing the possibility that he had misdiagnosed her aneurysm as ruptured and offering alternatives that would only be appropriate for an unruptured aneurysm.”
Causation
“[A] claim for malpractice based on a lack of informed consent sounds in … negligence. Thus, a plaintiff must prove ‘not only that the physician was negligent but also that the negligent act was a proximate cause of her injury.’…
“In an informed consent claim, this means 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.’ …
“But how a plaintiff proves proximate causation in an informed consent claim is a matter of first impression in Virginia.
“Our Supreme Court recently recognized that it has ‘not squarely addressed whether Virginia’s law of informed consent includes an objective standard (that is, that a reasonably prudent person in the plaintiff’s position would not have consented to treatment when provided with proper disclosures) or a subjective standard (that this patient would not have consented in the face of the disclosures required by the standard of care).’ …
“The two approaches differ in how they consider certain forms of evidence. Under the subjective approach, the plaintiff’s testimony about what she would have done speaks directly to the ultimate issue to be decided, and – if believed – is dispositive.
“But under the objective approach, the plaintiff’s testimony only indirectly bears on the causal question. …
“Even though our Supreme Court has not answered the question, Dr. Pergolizzi rightly points out that Civil Model Instruction No. 35.080 applies a subjective causation standard: a physician is ‘liable for any injury proximately resulting from the doctor’s treatment if [the jury] believe[s] from the evidence that the patient would have refused the treatment if the doctor had disclosed the information.’ (Emphasis added).
“We find that the model instruction is right to apply that standard.”
Rulings
“The trial court did not err in giving the model jury instruction reflecting a subjective proximate cause standard for Bowman’s informed consent claim, or in admitting Bowman’s own testimony on proximate cause, or in allowing Bowman’s experts to testify that her SAH resulted from a non-aneurysmal, but unknown, cause.
“But because we find that a physician has no duty to inform a patient that the physician may have misdiagnosed the patient or offer treatment options that would only make sense for conditions the doctor has excluded, the trial court erred in admitting Bowman’s experts’ testimony suggesting such a duty exists.”
Reversed and remanded.
Pergolizzi v. Bowman, Record No. 022-7-583, Dec. 29, 2022. CAV (Lorish). From the Circuit Court of Arlington County (Newman Jr.). Paul T. Walkinshaw for appellant. E. Kyle McNew for appellee. VLW 022-7-583, 13 pp.
Editor’s note: A version of this digest that appeared in the Jan. 9, 2023, print issue misidentified the case as VLW No. 022-7-582.
