Tort Law

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Consent and the related topic of malpractice.
For more information about the topic of informed consent see the pages on Wikipedia.

Consent-Statutes

See Va. Code §§ 54.1-2969 and 54.1-2970 as to consent of minors and incompetent persons.

Consent-Cases

2014 Fiorucci v. Chinn, 764 S.E.2d 85.
Dental malpractice case where trial court properly excluded information given to patient in advance about the risk of the extraction.

2004 Wright v. Kaye, 267 Va. 510, 593 S.E.2d 307.

In this medical malpractice case, there was no issue of informed consent. As such, information conveyed to patient by physician as to risk of surgery is not relevant. Patient’s awareness of such risk is not a defense available to the doctor wherein the allegation is simply a deviation from the standard of care.

2002 Tashman v. Gibbs, 263 Va. 65, 556 S.E.2d 772.

Medical malpractice action where plaintiff alleged failure to obtain informed consent. In regards to informed consent claim, patient generally is required to establish by expert testimony whether and to what extent any information should have been disclosed. In this case, plaintiff failed to establish by expert testimony that standard of care required disclosure of any particular risks of the procedure and exactly what those risks were, plaintiff likewise failed to establish by expert testimony that physician was required to disclose to patient extent of his experience in performing this procedure. What was established through plaintiff’s testimony was standard of care for physician that required physician to disclose available alternatives to this procedure. There was, however, no evidence that physician’s deviation from the standard of care was proximate cause of plaintiff’s injuries. Because informed consent issue was submitted to jury without evidentiary basis, verdict for plaintiff overturned since it is impossible to tell whether jury decided case on informed consent issue or on issue related to negligent performance of surgery.<

1997 Moates v. Hyslop, 253 Va. 45, 480 S.E.2d 109.

Medical malpractice case. Plaintiff required to present expert testimony as to what extent information should have been disclosed. Plaintiff failed to produce that expert testimony and therefore summary judgment granted.

1994 Rizzo v. Schiller, 248 Va. 155, 445 S.E.2d 153.

Obstetrical malpractice case where physician elected to use forceps which resulted in brain injury to baby. It is duty of physician to warn patient of danger of possible bad consequences of using particular remedy. In most cases, expert testimony is necessary to establish those instances where duty to disclose arises and what disclosures must be made. In this case patient signed generalized consent form which court held was so broad as to authorize virtually any type of treatment. Law requires informed consent, not mere consent and failure to obtain informed consent is tantamount to no consent. In this case jury issue presented as to informed consent.

1980 Pugsley v. Privette, 220 Va. 892, 263 S.E.2d 69.

Consent may be expressed, implied, or presumed. Consent may be withdrawn as it was in this case, where plaintiff instructed defendant not to operate until other doctor arrived.

1976 Bly v. Rhoads, 216 Va. 645, 222 S.E.2d 783.

Plaintiff must establish, through expert testimony, whether and to what extent, information should be disclosed by physician to his patient, although it is conceivable that in certain situations, necessity of disclosure is so obvious that expert testimony would not be necessary.