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Allison v. Brown

Supreme Court of Virginia

July 27, 2017





         We consider in this medical malpractice appeal whether the plaintiff pled a claim for battery in her complaint and whether the trial court erred in instructing the jury on battery and informed consent and in denying a motion to strike that claim. For the reasons explained below, we reverse and remand the case for a new trial.


         I. Factual background

         Deborah Brown is a breast cancer survivor. As part of her treatment for that illness, on June 15, 2010, Brown underwent a bilateral mastectomy and chemotherapy. Following the mastectomies, she received radiation treatment in the area of her left breast, where the cancer had been located. The radiation damaged the tissue of the targeted area. This damage posed a risk of serious complications should there be subsequent surgeries on the irradiated breast. As is commonly the case, the mastectomies necessitated multiple reconstructive surgeries. Dr. Allison performed several such surgeries from June 2010 through August 2011. These surgeries are not at issue.

         On October 3, 2011, Brown and Dr. Allison discussed yet another breast revision surgery. All agree that the original plan was for Dr. Allison to operate on both breasts. Accounts diverge concerning what happened afterwards. The plaintiff testified that she changed her mind and decided that the surgery should occur on the right side only. She testified that she informed Dr. Allison of this fact in a pre-operation visit on November 7, 2011. In addition to her own testimony, she offered documentary evidence from medical records as well as expert testimony to support her contention that the surgery was to occur on the right breast only.

         Dr. Allison testified, contrary to Brown's recollection, that she consented to bilateral breast surgery. He sought to distinguish or explain the medical records offered by Brown, and likewise submitted medical records in support of his recollection.

         On November 22, 2011, Dr. Allison operated on both breasts. Brown suffered significant complications to her left breast following this surgery. As a consequence, she had to undergo six additional repair surgeries.

         II. The lawsuit

         On October 23, 2013, Brown filed this action against Dr. Allison. The factual portions of the complaint allege in relevant part that:

10. . . . [Dr.] Allison performed implant replacement surgery on the wrong breast.
11. As a result of said negligence, the Plaintiff has undergone additional surgeries to repair and revise her breasts.
12. As a result of said negligence, the Plaintiff has suffered severe and permanent injuries.

Brown advanced one count of "negligence" against Dr. Allison personally and another count of "negligence" against his practice. Under these negligence headings, the complaint states that Dr. Allison "performed surgery on the wrong breast, " that he "replaced the implant on the wrong breast, " and that he "failed to exercise the degree of skill and diligence practiced by a reasonably prudent practitioner in the field of medicine in this Commonwealth." The complaint further states that the plaintiff sustained damages "[a]s the proximate result of said negligence." Neither the word "battery" nor any other wording averring indication of an intentional tort appears in the initial complaint.

         On July 10, 2014, the plaintiff filed a motion for leave to file an amended complaint to add a count for battery. The two negligence counts remained essentially unchanged from what Brown originally pleaded. The amended complaint added a third count for "battery, " placed after the original complaint's two counts for "negligence." Under the battery heading, the plaintiff added seven new paragraphs alleging, among other things, that Dr. Allison "committed an unwanted touching of Plaintiff's body, " that "Dr. Allison had no justification, excuse or consent for the unwanted touching, " and that the plaintiff's damages were "caused by the battery."

         Dr. Allison opposed the amendment, arguing that the claim was now time-barred because, inter alia, the plaintiff had failed to exercise reasonable diligence in raising the claim. At a hearing before Judge David S. Schell, the plaintiff argued that "[w]e have medical malpractice claims. We're simply adding a battery claim." The addition of the battery claim, the plaintiff argued, "simply allows for an additional instruction for the jury." The court ruled that the plaintiff should be granted leave to amend her complaint.

         After the plaintiff filed the amended complaint, Dr. Allison filed an answer and a plea in bar, again asserting that the battery count was barred by the statute of limitations because, among other things, the plaintiff had not been diligent in pursuing the claim. In response, the plaintiff argued that "add[ing] a count for battery" was justified and the plaintiff had been reasonably diligent in raising the claim. A different judge, Judge Michael F. Devine, heard the argument on Dr. Allison's plea in bar. Counsel for the plaintiff explained his reasons for adding a battery count at this juncture, stating that "[t]o allege an intentional tort is a very serious matter, which I don't like to do. I don't like to allege intentional torts against physicians unless I have to. And so it was frankly a matter of prudence." Counsel further stated that following Dr. Allison's deposition and his lack of a colorable explanation for the surgery on the left side, the plaintiff decided to move forward with the claim for battery. Effectively reversing the prior ruling by Judge Schell, Judge Devine agreed with Dr. Allison that the plaintiff had not been diligent in pursuing the battery claim. Accordingly, he entered an order on September 26, 2014, dismissing the battery claim with prejudice.

         The case proceeded to trial before yet another judge, Judge Robert J. Smith. A first four-day jury trial resulted in a hung jury. Months later, on the morning of the second jury trial, defense counsel made a motion to exclude any argument or evidence concerning the existence of consent. Dr. Allison's counsel cited to Judge Devine's ruling striking the battery count from the amended complaint and argued that he is not legally "obligated to litigate a claim that has been dismissed with prejudice." In response, the plaintiff argued that battery has "been in this case since its inception." The court disagreed, but nonetheless denied Dr. Allison's motion, concluding that it would have to assess Dr. Allison's motions "in the crucible of all the evidence."

         Dr. Allison also challenged the plaintiff's informed consent theory, arguing that her allegations did not raise a claim of lack of informed consent and that her expert designation failed to express any opinions with regard to informed consent. He argued that the opinion offered by the plaintiff's expert centered on the absence of consent, not a lack of informed consent. The plaintiff responded by noting that the defense expert's designation discusses informed consent and that the plaintiff was not misled or prejudiced. The court denied Dr. Allison's pre-trial motions. Following the presentation of evidence, the court further denied both defense motions to strike.

         Despite repeatedly agreeing that the battery count had been dismissed with prejudice, the trial court nevertheless instructed the jury on battery. The jury was also instructed on negligence and informed consent.

(1)Was the defendant negligent in that he did not have informed consent?
(2)If he was negligent, was his negligence a proximate cause of the plaintiff's injuries?

         The court further instructed the jury that

A doctor has a duty to obtain his patient's informed consent before he treats her. Informed consent means the consent of a patient after a doctor has given the patient all information about the treatment and its risks that would be given to a patient by a reasonably prudent practitioner in the doctor's field of practice or specialty. A doctor is not required, however, to tell a patient what she already knows or what any reasonably prudent person would know.
If a doctor fails to perform this duty, then he is negligent and is liable for any injury proximately resulting from the doctor's treatment if you believe from the evidence that the patient would have refused the treatment if the doctor had disclosed the information.[1]

         The jury returned a general verdict for the plaintiff. Dr. Allison filed a motion to set aside the verdict on the same grounds he had articulated at trial. The court denied the motion.


         I. The initial complaint did not allege a claim for battery.

         Under Virginia's notice pleading regime, "[e]very pleading shall state the facts on which the party relies in numbered paragraphs, and it shall be sufficient if it clearly informs the opposite party of the true nature of the claim or defense." Rule 1:4(d). Stated another way, a pleading must be "drafted so that [the] defendant cannot mistake the true nature of the claim." Cate ...

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