Thanks for visiting! Welcome to a new way to research case law. You are viewing a free summary from Descrybe.ai. For citation and good law / bad law checking, legal issue analysis, and other advanced tools, explore our Legal Research Toolkit — not free, but close.
Richard S. Pergolizzi, Jr., M.D. v. Ramona Bowman
Citation: Not availableDocket: 0072224
Court: Court of Appeals of Virginia; December 28, 2022; Virginia; State Appellate Court
Original Court Document: View Document
The Court of Appeals of Virginia addressed two novel issues in medical malpractice law regarding informed consent in the case of Richard S. Pergolizzi, Jr., M.D. v. Ramona Bowman. Firstly, the court ruled that a claim for lack of informed consent cannot be based on a physician's failure to inform the patient of alternative treatments that might be relevant if the physician had made a different diagnosis. The trial court incorrectly allowed Bowman to pursue an informed consent claim partly due to Dr. Pergolizzi's failure to discuss alternative treatments linked to a different diagnosis. Secondly, the court held that, under Virginia law, a factfinder must consider whether the plaintiff herself would have chosen an alternative treatment after receiving sufficient information from the physician, rather than relying on what a reasonable person might have done. The case's background involved Ramona Bowman experiencing severe headaches leading to a diagnosis of a subarachnoid hemorrhage (SAH), followed by a referral to Dr. Pergolizzi. His examination and subsequent angiogram revealed a left middle cerebral artery aneurysm. Although he discussed the results with Bowman and her daughter, he failed to mention concerns regarding the aneurysm's irregular shape or the option of monitoring it as a potential treatment. Dr. Pergolizzi did not recommend monitoring for Bowman’s lobular and irregular aneurysm, believing it unsafe due to prior rupture and the exclusion of other causes for her subarachnoid hemorrhage (SAH). He suggested treatment via open craniotomy or coil embolization, which Bowman chose, scheduling the latter. Prior to the procedure, her worsening headaches prompted her husband to contact Dr. Pergolizzi, who advised an emergency room visit due to concerns of potential bleeding. A CT scan showed no evidence of bleeding, yet Dr. Pergolizzi proceeded with the coil embolization, during which Bowman suffered a hemorrhagic stroke after the second coil was placed, resulting in permanent impairment. Bowman subsequently sued Dr. Pergolizzi, alleging three theories of liability: negligent misdiagnosis of a ruptured aneurysm, negligent surgery while placing the second coil, and failure to adequately inform her of risks and alternative treatment options, including monitoring. Expert testimonies from Dr. Gaughen and Dr. Fredieu challenged Dr. Pergolizzi's conclusion that the aneurysm caused Bowman's SAH, with Dr. Gaughen asserting certainty that the aneurysm did not cause the bleeding and citing medical literature to support his claims. Both experts acknowledged alternative causes for the SAH, such as vasculitis and other syndromes, but did not provide a definitive alternative diagnosis. Dr. Gaughen admitted uncertainty about the exact cause of the SAH, and Dr. Fredieu estimated the likelihood of vasculitis being the cause to be less than 25%. Experts in the case highlighted the lack of preserved images from a November 7 angiogram, which hindered their ability to provide a definitive alternative diagnosis. Dr. Pergolizzi challenged the testimony of Bowman's experts regarding alternative causes for her subarachnoid hemorrhage (SAH), asserting that they could not determine its cause with reasonable medical probability. This objection was reiterated through various motions before the jury was seated. Bowman's experts addressed the informed consent standard for a coil embolization procedure. Dr. Fredieu emphasized that a thorough informed consent process requires discussion of the option to refrain from treatment, particularly the possibility of monitoring the aneurysm due to its low rupture risk. He criticized Dr. Pergolizzi for failing to mention this option and for downplaying the risks associated with the procedure based on the aneurysm's characteristics. Dr. Fredieu also suggested that a referral to a neurosurgeon could have been warranted given Bowman's age and aneurysm location. However, he acknowledged that if Bowman's aneurysm had already ruptured, recommending coiling would have been appropriate. Dr. Gaughen also testified on informed consent, stating that Dr. Pergolizzi should have communicated that the aneurysm was unruptured and that treatment options included both surgical and conservative management. He maintained that Bowman was not able to make an informed decision due to the lack of discussion about non-surgical options. Dr. Pergolizzi's counsel objected to Dr. Gaughen's assertion regarding the unruptured status of the aneurysm, leading to a clarification that Dr. Gaughen's criticism focused on the presumption of rupture rather than a complete assessment of the informed consent process, which lacked documentation. He too conceded that if the aneurysm had previously ruptured, prompt coiling would have been justified. Bowman herself testified that had she been informed about the option to monitor her aneurysm without immediate treatment prior to her surgery on November 10, she would have opted against the surgical procedure. She asserted that had Dr. Pergolizzi informed her of the low risk of rupture for her aneurysm if untreated, and the higher risk of death from the coiling procedure, she would not have chosen the latter. The jury received 'Instruction R,' based on Virginia’s model jury instruction for informed consent, which states that a doctor must obtain informed consent by providing all relevant treatment information, and that failure to do so constitutes negligence if the patient would have refused treatment with proper disclosure. The jury awarded Bowman over $3,000,000 in damages, which the trial court reduced to the statutory medical malpractice cap. Dr. Pergolizzi appealed, seeking to reverse the findings, vacate the jury verdict, and remand for a new trial. Virginia law recognizes informed consent claims as negligence, requiring the plaintiff to demonstrate that the physician breached the standard of care by failing to disclose material risks or alternatives, thus hindering the patient’s informed decision. The standard of care is measured against the practices of reasonably prudent practitioners in Virginia, and deviations must generally be supported by expert testimony. The plaintiff must prove that negligence was the proximate cause of her injury and that she would have declined the treatment if fully informed. Dr. Pergolizzi raises four issues on appeal, including the trial court's allowance of Bowman's informed consent claim regarding a potential misdiagnosis and the jury instruction focusing on Bowman's personal decision rather than that of a hypothetical reasonable person. Dr. Pergolizzi claims the trial court wrongly admitted testimony from Bowman indicating she would not have consented to the procedure if properly informed. He asserts that the court abused its discretion by allowing expert testimony suggesting her subarachnoid hemorrhage (SAH) stemmed from a non-aneurysmal cause, as the experts failed to identify a specific cause with reasonable medical certainty. He contends that the court erred by permitting Bowman to base her informed consent argument on his alleged misdiagnosis. Dr. Pergolizzi's first assignment of error involves a legal question, as the admission of expert testimony typically falls within the trial court's discretion, which can be abused if a legal error occurs. Evidentiary issues are reviewed de novo, but Bowman argues that Dr. Pergolizzi forfeited this claim by not objecting during the expert testimony. However, Dr. Pergolizzi preserved the argument under the contemporaneous objection rule, which allows for appeal if a reasonable objection was made at the time of the ruling. He filed a pretrial motion to prevent expert testimony regarding his alleged failure to inform Bowman about the aneurysm's potential non-rupture. During the pretrial hearing, Dr. Pergolizzi's counsel argued that Bowman's informed consent claim improperly transformed a misdiagnosis claim into two separate claims: negligence for not realizing the aneurysm had not previously ruptured and informed consent. He maintained that since he believed the aneurysm had previously ruptured, it was improper for Bowman to claim he should have informed her of risks related to a diagnosis he did not believe was incorrect. He also moved to strike the informed consent argument, asserting that he could not be liable for misdiagnosis, supported by testimonies that appropriate treatment would have been necessary had the aneurysm ruptured. This motion was renewed after all evidence was presented. Dr. Pergolizzi filed a motion for a new trial, arguing that the informed consent claim was valid based on other legal theories, particularly the improper communication of risks associated with a medical procedure. He questioned whether this claim could also stem from his alleged failure to accurately diagnose the patient, Bowman. However, Bowman contended that Dr. Pergolizzi's argument was ambiguous, lacking clarity on whether he was questioning the legal foundation of the informed consent claim or disputing specific expert testimony. While Dr. Pergolizzi objected during the trial to some expert testimonies regarding the standard of care, he did not do so consistently, leading to a procedural concern under Rule 5A:18, which addresses the preservation of issues for appeal. Nonetheless, the court found that Dr. Pergolizzi adequately preserved his arguments through repeated objections made pretrial, during, and post-trial, allowing for a comprehensive consideration of his claims. The document clarifies that physicians are not obligated to disclose the risk of having misdiagnosed a patient or to discuss alternative treatments relevant only to other potential diagnoses. Virginia courts have not definitively ruled on whether informed consent standards necessitate the disclosure of possible alternative diagnoses. Most jurisdictions maintain that informed consent claims should not encompass discussions of misdiagnosis; instead, such claims should arise from traditional medical malpractice negligence. A notable exception was made by the Wisconsin Supreme Court, which subsequently had its ruling overruled by state legislation clarifying that informed consent does not require disclosure of information related to alternative treatments for undiagnosed conditions. Dr. Pergolizzi's case hinged on his affirmative diagnosis of Bowman with a ruptured aneurysm, and courts have typically rejected the integration of negligent misdiagnosis claims into informed consent claims in similar contexts. In Roukounakis v. Messer, the Massachusetts appellate court addressed a claim of informed consent arising from a physician's failure to identify a cancerous tumor. The court determined that the physician's duty to suggest additional diagnostic tests only arises if there is a reasonable suspicion of a tumor based on the mammogram. The court affirmed that the plaintiff's claim was fundamentally about negligence, not informed consent, as the physician's failure to diagnose properly did not equate to a duty of informed consent regarding further testing. In the case of Bowman, it was similarly concluded that the informed consent claim stemmed from the physician's misdiagnosis of an aneurysm. Although Dr. Pergolizzi diagnosed a ruptured aneurysm and did not conduct further tests, experts agreed that immediate treatment was appropriate. The standard of care required that Dr. Pergolizzi inform Bowman about an unruptured aneurysm, which was not done. The court emphasized that informed consent does not necessitate disclosing risks of misdiagnosis when a diagnosis has been made. The trial court's error lay in allowing expert testimony that suggested a duty to disclose potential misdiagnosis risks. The ruling aligns with a majority view that distinguishes between negligent misdiagnosis and informed consent, asserting that a physician is not obligated to inform about risks related to misdiagnosis when a definitive diagnosis has been made. The discussion of Gates v. Jensen illustrates a more limited exception, where a physician may need to inform a patient of alternative diagnostic tests only in cases of inconclusive testing, not when a diagnosis is clearly established. This distinction reaffirms the court's position on the separation of informed consent principles from negligence claims rooted in misdiagnosis. The trial court's error in permitting Bowman's informed consent theory was significant and not harmless. Under Code § 8.01-678, errors are only deemed harmless if the trial record shows that the parties received a fair trial and substantial justice was achieved. The general verdict for Bowman obscures the impact of the trial court's error on the jury's liability finding and award. Although Bowman presented multiple negligence theories, the verdict form simply stated a finding in her favor, complicating any assessment of the jury's reasoning. Bowman contended that the jury's liability determination, even if based on the flawed informed consent theory, implied they found Dr. Pergolizzi negligent in misdiagnosing her. She argued this misdiagnosis was relevant to her separate negligent misdiagnosis claim, positing that any error regarding informed consent was harmless. However, there's a plausible scenario where the jury believed Dr. Pergolizzi misdiagnosed Bowman but found that he was not negligent. The jury might have incorrectly assumed he had a duty to disclose more information about her aneurysm's status and alternative treatments, based on expert testimony. Precedent from Hinkley v. Koehler supports the notion that errors are presumed prejudicial unless it is evident they did not affect the outcome. Here, it is unclear how much weight the jury assigned to the informed consent versus negligent misdiagnosis theories, or how they interpreted inadmissible testimony conflating the two. Given these uncertainties, it cannot be concluded that Dr. Pergolizzi received a fair trial, rendering the trial court's error non-harmless. Bowman is permitted to pursue an informed consent claim on remand, as her experts, particularly Dr. Fredieu, indicated that Dr. Pergolizzi failed to fulfill his duty to provide informed consent for reasons distinct from the identified error in negligent misdiagnosis. The jury's general verdict does not allow for a finding of harmless error, but sufficient admissible testimony exists for Bowman to base her claim on remand. Dr. Pergolizzi acknowledged during the trial that his objections would not eliminate Bowman's claim regarding lack of informed consent. There was consensus among both parties in oral argument that the court must determine whether Virginia follows an objective or subjective standard for causation in informed consent claims. The trial court did not err in providing Instruction R or in admitting Bowman's testimony, as a subjective standard is applicable for determining causation in such claims. Dr. Pergolizzi contended that the trial court incorrectly applied a subjective standard—focusing on whether Bowman would have declined the procedure if properly informed—rather than an objective standard that considers whether a reasonable person would have refused. Instruction R was aligned with Civil Model Instruction No. 35.080, which outlines a doctor's duty to obtain informed consent by providing necessary information about treatment risks. Dr. Fredieu testified that Dr. Pergolizzi had a duty to clearly explain the risks associated with the coil embolization procedure and could have suggested that Bowman seek a second opinion. Both Dr. Fredieu and Dr. Gaughen noted that inadequate documentation of the informed consent process hindered their ability to evaluate it fully. Dr. Pergolizzi also argued that the admission of Bowman's testimony, which indicated she would have refused treatment if fully informed, was erroneous under an objective standard. The appellate review of jury instructions aims to ensure that the law is clearly stated and that all relevant issues raised by the evidence are covered. Whether a jury instruction accurately reflects the relevant law is assessed de novo. Evidentiary issues that present a question of law are also reviewed de novo. Dr. Pergolizzi preserved an assignment of error regarding a jury instruction on informed consent but did not propose an alternative instruction or request modifications to Instruction R. Bowman contends that this lack of alternatives resulted in a forfeiture of appellate review. However, there is no strict rule that forfeits objections simply for not offering alternate instructions. In prior cases, it has been emphasized that parties are responsible for providing proper jury instructions that align with their case theories. To preserve an argument for appeal, Rule 5A:18 requires that objections be “stated with reasonable certainty” during the trial, allowing the trial court to address issues effectively and minimize unnecessary appeals. While proposing alternative instructions is beneficial for clarity, it is not the sole method of preserving an objection. Dr. Pergolizzi made clear and consistent objections to Instruction R, arguing it should adhere to an objective standard rather than a subjective one. Dr. Pergolizzi's counsel sought to maintain the ability to challenge the model jury instruction before Bowman's testimony and obtained a standing objection to subjective testimony regarding consent. Although Bowman relies on case law to support her waiver argument, the cited cases do not apply here as they involved concessions that the proposed instructions were correct or lacked clear objections. Dr. Pergolizzi consistently opposed any instruction incorporating a subjective standard, thereby preserving his right to appeal on this issue. The trial court recognized the objection regarding the lack of Supreme Court guidance on the issue. Dr. Pergolizzi's motion to strike emphasized that Bowman's evidence was solely subjective, contending that an objective standard was necessary to determine if a reasonable person would have proceeded with the procedure. In his motion for a new trial, he challenged the trial court's use of a model instruction, arguing it allowed subjective evidence rather than requiring objective evidence of a reasonable person's actions. In Virginia, a claim for lack of informed consent, rooted in negligence, necessitates proof that the plaintiff would not have consented if properly informed. The plaintiff must demonstrate that the physician's negligent act was the proximate cause of injury. Dr. Pergolizzi's counsel reiterated the objection to the instruction, advocating for an objective analysis of informed consent rather than a subjective one. The Supreme Court of Virginia has not definitively established whether the informed consent standard is objective or subjective, noting that this distinction affects how evidence is evaluated. Under the subjective approach, the plaintiff's testimony is crucial and potentially decisive. Under the objective approach, the plaintiff's testimony has an indirect role in establishing causation, while the subjective approach considers reasonableness in inferring the plaintiff's actions. However, reasonableness is central to the objective approach. Although the Supreme Court has not provided a definitive stance, Dr. Pergolizzi notes that Civil Model Instruction No. 35.080 employs a subjective causation standard, holding a physician liable for injuries stemming from treatment if the jury believes the patient would have declined had full disclosure occurred. This model instruction aligns with Virginia tort law principles, suggesting a subjective approach is preferable unless overridden by legislative action. Existing tort law delineates proximate cause into two elements: the plaintiff must first demonstrate cause-in-fact—defined as an act or omission that, without interruption from an intervening cause, leads to the injury. An "independent intervening act" can sever legal causation even if the actor is the "but for" cause. The second element necessitates proving a close connection that justifies holding the defendant accountable for the injury. In the context of informed consent, a physician's failure to disclose must be a cause-in-fact of the plaintiff's injury. The plaintiff must show they would not have consented to treatment if informed adequately. Conversely, if the plaintiff would have accepted treatment regardless of disclosure, the failure to inform cannot be deemed the proximate cause of any resulting injury. The reasonable person standard does not fit within the cause-in-fact component and does not serve to clarify the causal chain. Thus, absent legislative intervention, the reasonable person standard merely provides evidence regarding the plaintiff’s actions rather than determining causation, potentially complicating the causal assessment instead of simplifying it. The excerpt addresses the standard of proof required in informed consent cases, particularly regarding proximate cause and the role of patient awareness in medical decision-making. It highlights that a subjective standard, while not conclusively established, aligns with previous case law indicating insufficient evidence of proximate cause without proof that the plaintiff would not have suffered injury had an alternative treatment been chosen. The text notes that in Virginia, the physician's duty to inform is assessed based on expert testimony reflecting what a reasonable physician would disclose. The discussion references specific cases where plaintiffs presented evidence suggesting that better-informed patients could have made different decisions, potentially avoiding injury. Concerns surrounding the subjective standard are raised, with critics arguing that it risks placing undue emphasis on the patient's hindsight, while an objective standard is preferred for pragmatic reasons, reducing speculative outcomes in litigation. Nonetheless, the excerpt asserts that subjective standards are manageable, as juries routinely evaluate credibility in various cases. It emphasizes the longstanding reliance on juries to make such determinations, asserting that this function is foundational to the jury system despite challenges in discerning absolute truth. Juries can determine whether evidence supports an inference regarding a plaintiff's informed consent, similar to other credibility assessments they routinely make. The principle of informed consent allows every adult of sound mind to control decisions about their body. A subjective standard, which considers the patient’s personal decision-making, contrasts with an objective standard that may limit patient rights. Even when a patient has died and cannot testify, family or friends can provide evidence of the patient’s views, and reasonable patient responses can be inferred. In this case, the trial court correctly used a subjective standard for proximate causation and admitted testimony from Bowman, who stated that she would have declined the procedure if adequately informed about alternatives and risks. The court also appropriately allowed Bowman’s expert witnesses to testify that her subarachnoid hemorrhage (SAH) was caused by non-aneurysmal factors, despite Dr. Pergolizzi's claims of procedural error. Dr. Pergolizzi's objections regarding the expert testimony lacked specificity, failing to meet the standards outlined in Rule 5A:18. Dr. Pergolizzi repeatedly objected to the testimony of Bowman's experts regarding alternative causes for Bowman's subarachnoid hemorrhage (SAH), arguing that the experts could not identify a cause with reasonable medical probability. He raised these objections in multiple motions during the trial and on appeal, asserting that this issue has not been forfeited. While Dr. Pergolizzi seems to acknowledge that Bowman's experts provided reasonable medical probability that the aneurysm did not cause the SAH, he contests their claims about potential alternative causes due to the experts’ inability to specify a non-aneurysmal cause with certainty. The court has discretion over the admission or exclusion of expert testimony, which can only be reversed if there is an abuse of discretion. The admissibility of expert testimony hinges on whether it is speculative or based on insufficient factual foundations. Medical opinions must be based on probabilities rather than possibilities to be considered relevant. Dr. Pergolizzi argues that the experts' admissions about their inability to definitively identify an alternative diagnosis render their testimony speculative. The excerpt discusses a precedent case, Lucas v. Riverhill Poultry, Inc., where an expert's testimony was excluded because he acknowledged needing more information to confirm his diagnosis, thus making his conclusions speculative and inadmissible. However, the current case is noted to be distinguishable from Lucas, as the expert witnesses in this situation had acknowledged gaps in their information. Bowman's negligent misdiagnosis claim required proof that her subarachnoid hemorrhage (SAH) was not caused by a ruptured aneurysm. Unlike in the Lucas case, where the plaintiff could not establish the cause of the accident, Bowman's case allowed her to focus on disproving a specific diagnosis rather than proving an alternative diagnosis. The trial court's discretion in admitting evidence was evaluated, and it was determined that the court did not abuse its discretion by allowing expert testimony, as it was relevant to support Bowman's claim that Dr. Pergolizzi negligently misdiagnosed her condition by failing to explore other potential causes before surgery. Dr. Gaughen's testimony indicated with certainty that the SAH was not linked to the aneurysm operated on, based on his expertise and literature supporting that aneurysms do not cause the bleeding pattern observed in Bowman’s CT scan. Additionally, Dr. Chandela, Bowman's treating neurosurgeon, supported this by stating that Bowman had an unruptured aneurysm prior to the procedure, which would not cause SAH. The trial court correctly provided a model jury instruction based on a subjective proximate cause standard for Bowman's informed consent claim and admitted her testimony on proximate cause. However, the court erred by allowing expert testimony suggesting a physician has a duty to disclose a potential misdiagnosis or treatment options for excluded conditions. This error was deemed significant, leading to a reversal and remand for a retrial.