October 31, 2014
RICHARD D. FIORUCCI, ET AL.
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.
[288 Va. 446] PRESENT: All the Justices
ELIZABETH A. McCLANAHAN,
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.
We will affirm the judgment of the circuit court.
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.
[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. 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.
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. 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 through testimony of one of Chinn's experts. The circuit court ruled that the risk of surgery discussions were not relevant and precluded their admission into evidence.
The jury rendered a verdict for Chinn, which was confirmed by the circuit court.
On appeal, Dr. Fiorucci argues that our decision in Wright v. Kaye, 267 Va. 510, 529, 593 S.E.2d 307, 317 (2004), holding that risk of surgery discussions were inadmissible in a medical malpractice trial, [288 Va. 448] does not apply because Chinn's claim was based on pre-operative negligence.
In Wright, we reversed the circuit court's denial of a motion in limine to exclude discussions between the physician and patient as to risk of injury where the patient claimed the physician negligently performed a medical procedure. We explained that " evidence of
information conveyed to [the patient] concerning the risks of surgery in obtaining her consent is neither relevant nor material to the issue of the standard of care" in performing the surgery. Id. Recognizing that the patient's awareness of the risks of surgery is not a defense available to a physician against a claim of deviation from the standard of care, we stated that while a patient may consent to risks of surgery, a patient " does not consent to negligence." Id. Thus, where lack of informed consent is not at issue, " the admission of evidence concerning a plaintiff's consent could only serve to confuse the jury because the jury could conclude, contrary to the law and the evidence, that consent to the surgery was tantamount to consent to the injury which resulted from that surgery." Id.
While the patient's claim in Wright related to negligent performance of a medical procedure, our holding applies equally to claims premised on pre-operative negligent treatment, specifically including negligent diagnosis. Chinn's awareness of the risks of the extractions was not a defense against his claim that Dr. Fiorucci deviated from the standard of care in misdiagnosing the condition of Chinn's wisdom teeth or negligently performing the surgery. Therefore, evidence of the informed consent discussions between Dr. Fiorucci and Chinn were " neither relevant nor material to the issue of the standard of care." Id. Accordingly, the circuit court's denial of Dr. Fiorucci's motion in limine to exclude such discussions from the evidence at trial was not error.
We further reject Dr. Fiorucci's contention that Chinn placed the risk of surgery discussions in issue at trial. During voir dire, Chinn'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 [288 Va. 449] for an injury that results from his or her negligence." Furthermore, Dr. Gary Smagalski, one of Chinn'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. Neither the statement made to the jury during voir dire nor the testimony by Dr. Smagalski regarding his discussion with his own patient implied or suggested that Dr. Fiorucci failed to obtain Chinn's consent or " otherwise place[d] in issue any failure on the part of [Dr. Fiorucci] to obtain [Chinn's] informed consent." Wright, 267 Va. at 528, 593 S.E.2d at 317. Thus, the circuit court did not err in excluding from evidence Dr. Fiorucci's risk of surgery discussions with Chinn.
For the foregoing reasons, we will affirm the judgment of the circuit court.