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Fiorucci v. Chinn

Supreme Court of Virginia

October 31, 2014

RICHARD D. FIORUCCI, ET AL.
v.
STEPHEN CHINN

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA. James C. Clark, Judge.

Paul T. Walkinshaw (Garland B. Nagy; Rodney S. Dillman; Hancock, Daniel, Johnson & Nagle, on briefs), for appellants.

Jeffrey M. Summers; Michele Bartoli Cain (Sebastian Marks Norton; Bartoli Cain, on brief), for appellee.

Amicus Curiae: Virginia Association of Defense Attorneys (Danielle D. Giroux; Harman, Claytor, Corrigan & Wellman, on brief), in support of appellant.

Amicus Curiae: Virginia Trial Lawyers Association (Nathan J.D. Veldhuis; Sandra Rohrstaff; Rohrstaff Law Firm, on brief), in support of appellee.

OPINION

[288 Va. 446] PRESENT: All the Justices

ELIZABETH A. McCLANAHAN, JUSTICE

In this medical malpractice action, Richard D. Fiorucci, D.D.S. and Richard D. Fiorucci, D.D.S., Ltd. (collectively " Dr. Fiorucci" ) appeal from the judgment of the circuit court entered in accordance with a jury verdict rendered in favor of Stephen Chinn. Dr. Fiorucci contends that the circuit court erred in excluding evidence of the risk of surgery discussions between Dr. Fiorucci and Chinn.

Page 86

We will affirm the judgment of the circuit court.

I. BACKGROUND

Chinn was referred by his dentist to Dr. Fiorucci, an oral maxillofacial surgeon, for evaluation of three wisdom teeth, all of which were fully impacted in the bone. Dr. Fiorucci determined that Chinn's wisdom teeth were decaying and recommended extraction. Dr. Fiorucci extracted Chinn'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 Chinn's lower left wisdom tooth but encountered severe bleeding and halted the surgery, leaving part of the tooth and the root. He did not attempt extraction of the third tooth. Following the surgery, Chinn experienced bleeding from the nose, numbness in his left jaw, teeth, gum, lip, and chin, as well as 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 Chinn's lower left jaw area.[1]

[288 Va. 447] Chinn contended that Dr. Fiorucci was negligent in failing to properly diagnose the condition of his wisdom teeth and in recommending and performing the extractions.[2] According to expert testimony presented by Chinn at trial, Dr. Fiorucci misdiagnosed Chinn's 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 Chinn's experts, Dr. Fiorucci breached the applicable standard of care in misdiagnosing the condition of the teeth and proceeding to recommend and perform unnecessary surgery.[3]

Prior to trial, Chinn filed a motion in limine to exclude two informed consent documents he signed and the related risk of surgery discussions between Dr. Fiorucci and Chinn. 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 circuit court granted the motion without prejudice to Dr. Fiorucci to raise the discussions at trial if they became relevant.[4] During trial, Dr. Fiorucci sought to introduce the risk of surgery discussions, arguing that Chinn placed the issue of informed consent at issue during voir dire and ...


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