EMAIL TO A FRIEND COMMENT

 

Informed Consent Discussions Irrelevant to Preoperative Negligent Diagnosis


A man was referred by his dentist to an oral maxillofacial surgeon for the evaluation of three wisdom teeth, all of which were fully impacted in the bone. The surgeon determined that the man’s wisdom teeth were decaying and recommended extraction. The surgeon extracted the man’s upper left wisdom tooth but perforated the bone adjacent to the left sinus leaving a large opening in the sinus. He attempted the extraction of the man’s lower left wisdom tooth but encountered severe bleeding and halted the surgery, leaving part of the tooth and the route. He did not attempt extraction of the third tooth. Following the surgery, the man experienced bleeding from the nose; numbness in his left jaw, teeth, gum, lip, and chin; and pain in his left sinus. Although the symptoms related to the extraction of the upper left wisdom tooth resolved after several weeks, the symptoms related to the attempted extraction of the lower left wisdom tooth did not resolve, resulting in permanent numbness of his lower left jaw area.

 

The man brought a medical malpractice action against the surgeon and his practice group. The complaint alleged that the surgeon was negligent in failing to properly diagnose the condition of his wisdom teeth and in recommending and performing the extractions. According to the man’s expert testimony presented at trial, the surgeon misdiagnosed his wisdom teeth as being decayed when in fact they were in a benign resorption process, meaning they were in the harmless process of being incorporated into the surrounding bone. Thus, according to the man’s experts, the surgeon breached the applicable standard of care in misdiagnosing the condition of the teeth and proceeding to recommend and perform unnecessary surgery.

 

Prior to trial, the man filed a motion in limine to exclude the informed consent documents he signed and the related risk of surgery discussions between the surgeon and himself. The informed consent documents described the risks and potential complications of the surgery, which included the risks of injury to the nerve, opening of the sinus, and permanent numbness. The trial court granted the motion without prejudice to the surgeon to raise the discussions at trial if they became relevant.

 

During voir dire, the man's counsel asked potential jurors whether “know[ing] that medical and dental procedures involve risks and potential complications,” led any juror to conclude that “a dentist or doctor should not be held responsible for an injury that results from his or her negligence.” During the trial, one of the man's experts referred to discussions with his own patient regarding probable numbness - in the context of explaining why he did not refer his patient to a neurosurgical specialist after the patient experienced numbness following an extraction.

 

The surgeon sought to introduce the risk of surgery discussions, arguing that the man placed the issue of informed consent at issue during voir dire and through the testimony of one of his experts. The trial court ruled that the risk of surgery discussions were not relevant and precluded their admission into evidence.

 

Following the jury trial, the City of Alexandria Circuit Court rendered judgment in favor of the patient.

 

The Supreme Court of Virginia affirmed. The court held that evidence of the informed-consent discussions was neither relevant nor material to the issue of the standard of care, and the patient did not place the risk-of-surgery discussions in issue at trial.

 

Evidence of the informed-consent discussions was neither relevant nor material to the issue of the standard of care. Generally, evidence of the information conveyed to a patient concerning the risks of surgery in obtaining the patient’s consent is neither relevant nor material to the issue of the standard of care in performing the surgery. The court expanded this holding to claims premised on preoperative negligent treatment, specifically a negligent diagnosis. Evidence of the informed-consent discussions between the man and the surgeon regarding the risks of the surgery was neither relevant nor material to the issue of the standard of care regarding the surgeon’s pre-operative diagnosis of the condition of the man’s wisdom teeth and performance of the surgery. Thus, the court concluded that the trial court did not err in excluding the informed consent discussions.

 

The patient did not place the risk-of-surgery discussions in issue at trial. Neither the voir dire question nor the man’s expert witness's testimony placed in issue any failure on the surgeon's part to obtain informed consent. The court concluded that evidence of the risk-of-surgery discussions were inadmissible. Thus, the trial court did not err in excluding from evidence the surgeon’s risk of surgery discussions with the man.

 

The Supreme Court of Virginia affirmed the trial court’s entry of judgment in favor of the patient.

 

See: Fiorucci v. Chinn, 2014 WL 5490773 (Va., October 31, 2014) (not designated for publication).

 

 

REPRINTS & PERMISSIONS COMMENT