Nick Hurston//January 16, 2023
Nick Hurston//January 16, 2023//
A woman who suffered a permanent impairment must retry her malpractice claims against the doctor who allegedly misdiagnosed her condition and botched the surgery, the Court of Appeals of Virginia has held, settling two matters of first impression.
Ramona Bowman received a $3 million jury verdict (subject to the statutory cap) after she sued Dr. Richard S. Pergolizzi Jr. for malpractice based on a lack of informed consent.
But the appeals court reversed, saying the trial court erred when it allowed Bowman to present an “impermissible informed consent” theory.
“[A] negligence theory based on a physician’s failure to obtain informed consent must be constrained by the diagnosis that physician actually made,” Judge Lisa M. Lorish wrote. “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.”
The appeals court also ruled that “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.”
Lorish’s ruling in Pergolizzi v. Bowman (VLW 022-7-583) was joined by Judges Glen A. Huff and Stuart A. Rafael.
After experiencing a sudden, severe headache in October 2017, Ramona Bowman was hospitalized. A CT scan revealed a subarachnoid hemorrhage, or SAH, in her brain.
Bowman was referred to Dr. Richard Pergolizzi, an interventional neurologist. His concerns about the SAH led him to believe that Bowman was suffering from a ruptured aneurysm. Testing confirmed that Bowman had an irregularly shaped cerebral aneurysm.
Finding no alternative causes for Bowman’s SAH, Pergolizzi believed her aneurysm had ruptured and that surgery was needed because it wasn’t safe for her to simply monitor it. Bowman was hospitalized again when the headaches worsened before surgery.
Although tests didn’t show any new bleeding, Pergolizzi decided to perform surgery; he didn’t mention any nonsurgical alternatives to Bowman.
During the procedure, Bowman suffered a hemorrhagic stroke that left her permanently impaired.
Bowman sued Pergolizzi for malpractice based on his misdiagnosis, botched surgery and failure to fully inform her of the risks of surgery or about less risky alternatives.
At trial, Bowman’s experts agreed that Pergolizzi was wrong to conclude that her aneurysm had ruptured or was causing her SAH. Despite offering several possible causes, none of them could make an alternative diagnosis.
While the experts agreed that Pergolizzi likely violated the standard of care by not suggesting the possibility of monitoring the aneurysm, they admitted on cross examination that surgery would have been appropriate if Bowman’s aneurysm actually had ruptured.
Bowman testified she would not have chosen surgery if Pergolizzi had told her that monitoring was an option or that her aneurysm had a low risk of rupturing.
The jury returned a general verdict for Bowman, awarding her more than $3 million in damages. The Arlington County Circuit Court reduced the judgment to the statutory medical malpractice cap.
Lorish first noted that courts in Virginia “have not previously decided whether the standard of care for informed consent requires disclosure of other possible diagnoses and their corresponding alternatives and risks.”
While Virginia recognizes a claim based on a lack of informed consent as a subcategory of a negligence tort, other states have a statutory cause of action for informed consent, she explained.
“Most courts to consider the question have held that the standard of care for informed consent does not extend to disclosures of possible misdiagnosis,” Lorish wrote. “These jurisdictions conclude that claims of misdiagnosis should be brought under a traditional negligence theory of medical malpractice rather than an informed consent claim.”
Here, Bowman’s experts agreed immediate surgery would have been appropriate if Pergolizzi’s diagnosis of a ruptured aneurysm been correct; monitoring would have been appropriate only for an unruptured aneurysm.
And, in cases such as these, courts have unfailingly barred plaintiffs from introducing negligent misdiagnosis theories into their informed consent claims.
“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,” Lorish wrote. “Negligent misdiagnosis and lack of informed consent are distinct theories of negligence.”
A footnote cautions that this holding “is limited to cases in which a physician makes a diagnosis to the exclusion of other possible diagnoses.” Left unconsidered was what rule might be appropriate when it isn’t clear what the doctor’s actual diagnosis was.
As such, the trial court erred when it permitted Bowman’s experts to testify that 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.”
Nor was this error harmless because “we cannot be certain how much relative weight the jury put on the theory of negligent misdiagnosis versus the theory of informed consent” when it returned a general verdict in Bowman’s favor.
Lorish said how a plaintiff proves proximate causation in an informed consent claim is a matter of first impression.
“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),’” Lorish wrote.
Pergolizzi, she said, correctly noted that Civil Model Instruction No. 35.080 uses a subjective causation standard.
“Absent legislative intervention, the subjective approach better fits the basic principles of Virginia tort law,” she explained. “While most courts have reached a different conclusion, they have done so either as a matter of statutory interpretation or through weighing the pros and cons of the competing options. Evaluating whether a reasonable person standard is a good idea is a matter of policy better suited to the General Assembly.”
Despite criticism that a subjective standard would place doctors “in jeopardy of the patient’s hindsight and bitterness,” Lorish said it “adheres to the principles underlying the informed consent doctrine — that ‘[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body.’”
Thus, the trial court didn’t err by instructing the jury with a subjective proximate cause standard for Bowman’s informed consent claim.
Paul T. Walkinshaw, a shareholder at Wharton Levin in Fairfax, represents Pergolizzi. He told Virginia Lawyers Weekly he was “impressed with and grateful for the court’s careful review of the facts and our arguments.”
“We didn’t win on all of our issues, such as our argument that Virginia should follow the vast majority of other courts and adopt an objective standard on causation in informed consent cases,” he said.
But with Virginia’s new appeals of right, “we can look forward to gaining more clarity and guidance on matters like these that typically arise in medical malpractice trials,” Walkinshaw added.