DAVID W. ALLISON, ET AL.
THE CIRCUIT COURT OF FAIRFAX COUNTY Robert J. Smith, Judge
STEPHEN R. McCULLOUGH JUSTICE.
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.
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.
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.
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
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.
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
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
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
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.
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.
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."
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.
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
(2)If he was negligent, was his negligence a proximate cause
of the plaintiff's injuries?
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.
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
initial complaint did not allege a claim for battery.
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 ...