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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Court of Appeals Sneaks in a Final Opinion for 2022 with First Impression Med Mal Case

Presumably due to the long Christmas weekend, the Court of Appeals dropped one published and several published opinion today, rather than Tuesday, the regular release day. The one published opinion, Richard S. Pergolizzi, Jr., M.D. v. Ramona Bowman, is a medical malpractice case with not one, but two issues of first impression. 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?

The Court of Appeals, Judge Lorish joined by Judges Huff and Raphael, concludes 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. The Court further holds that a factfinder determines whether the plaintiff herself—not an objective “reasonable person”—would have elected alternative treatment after receiving adequate information from the physician.

In 2017 Bowman began suffering sever pain on the left side of her head. Her primary care physician referred her for a CT scan, which revealed a subarachnoid hemorrhage. Bowman was hospitalized for three days then referred to a nuerologist who referred her to Dr. Pergolizzi.

Dr. Pergolizzi order additional tests that resulted in the discovery of a left middle cerebral artery aneurysm, which he believed was the underlying cause of the subarachnoid hemorrhage. He also recognized that the aneurysm was of an irregular shape. In consulting with Bowman, however, he did not advise her that the aneurysm was the cause of the hemorrhage nor did he express concern about its irregularity, even though these elements of the diagnosis were relevant to his recommendation that immediate surgical intervention rather than taking a wait and see monitoring approach.

Before the surgery, Bowman's symptoms worsened. A CT scan, however, showed no change in the aneurysm. During the surgery, Bowman suffered a hemorrhagic stroke, resulting in permanent impairment.

At trial, Bowman's expert testified that Dr. Pergolizzi misdiagnosed the aneurysm as the cause of the hemorrhage and, as a result of that misdiagnosis improperly recommended surgery rather than recommending monitoring. Additionally, there was evidence that Dr. Pergolizzi was negligent in the manner in which he performed the surgery. The experts testified that there were other possible causes of the hemorrhage which should have been considered and which would have contraindicated the surgery if the aneurysm was not the cause.

The jury was instructed that it could consider Dr. Pergolizzi's failure to advise Bowman that he may have misdiagnosed the cause of the hemorrhage and, thus, the need to surgically address the aneurysm, as a basis for finding lack of informed consent. The jury was also instructed that informed consent was to be judged under a subjective standard of the specific patient when determining whether a fully informed patient would have elected to proceed with the same course of treatment, not, as Dr. Pergolizzi urged, under a "resonable person" objective standard. The jury returned a verdict for Bowman, awarding her $3,000,000, which the circuit court reduced to the applicable med mal cap.

As already indicated, the Court of Appeals found error in the first of the two instructions to the jury. In doing so, the Court adopted what it said is the majority view that a physician is not required to advise a patient of the potential for misdiagnosis as part of the information imparted to obtain informed consent. Rather, the Court concludes that the misdiagnosis is a separate claim for negligence, not a contributing factor in determining informed consent. The Court further noted that the only contrary decision was subsequently legislatively overruled. Although the error was not harmless, the Court affirmatively stated that Bowman could (and undoubtedly will) raise a separate misdiagnosis claim on remand.

On the issue of the subjective v. objective standard for determining whether a patient, if properly informed of an alternative treatment, would have opted to proceed with the recommended treatment, the Court sided with Bowman, finding that "the subjective approach better fits the basic principles of Virginia tort law." Thus, on remand, this standard will again be applied to Bowman's presumed claim of misdiagnosis.

I suspect that the result on remand the jury is likely to again return a verdict for Bowman. This supposition should weight against any decision by Bowman's counsel to seek an appeal in the Supreme Court, even though the issue is plainly novel and probably would be granted a review. Whether Dr. Pergolizzi will appeal the unfavorable aspects of the decision is another matter. My guess is that his med mal carrier will seek a writ if for no other reason than to extend the proceedings (not in an improper sense of deliberate delay, although this is an added benefit of doing so), and if so, then Bowman will likely assign cross-error.

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