PRESENT: All the Justices
RICHARD D. FIORUCCI, ET AL. OPINION BY v. Record No. 131869 JUSTICE ELIZABETH A. McCLANAHAN OCTOBER 31, 2014 STEPHEN CHINN
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA James C. Clark, Judge
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.
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
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
1 Expert testimony presented by Chinn established that the inferior alveolar nerve was damaged during the extraction of the lower left wisdom tooth. Although Chinn subsequently underwent surgery by a different surgeon to remove the remnant of this tooth and root, the numbness in his left jaw area did not resolve. 2 Chinn did not allege that Dr. Fiorucci failed to inform him of the risks of the extractions or that he was unaware of any particular risks. 2 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 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.
3 Chinn's experts also testified that Dr. Fiorucci breached the applicable standard of care in other respects, specifically, in proceeding with the extraction of the upper left wisdom tooth despite the fact that the roots of the tooth were fused to the bone; in proceeding with the extraction of the lower left wisdom tooth despite its proximity to the alveolar nerve canal; and in failing to make a prompt referral to a neurosurgical specialist. 4 Judge Lisa B. Kemler presided over the hearing on the motion in limine and entered the order granting the motion. 3 The jury rendered a verdict for Chinn, which was confirmed
by the circuit court.
II. ANALYSIS
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, 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
4 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.5 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
5 Dr. Fiorucci's position at trial was that because Chinn had the option to forego the extractions, his awareness of the risks was relevant to his choice. This position, however, is no different from asserting that Chinn consented to the risks of surgery. Chinn's "choice" to proceed with Dr. Fiorucci's recommendation to undergo surgery was based on Dr. Fiorucci's misdiagnosis. While Chinn "may consent to risks, [he] does not consent to [a negligent diagnosis]." Wright, 267 Va. at 529, 593 S.E.2d at 317.
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PRESENT: All the Justices
RICHARD D. FIORUCCI, ET AL. OPINION BY v. Record No. 131869 JUSTICE ELIZABETH A. McCLANAHAN OCTOBER 31, 2014 STEPHEN CHINN
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA James C. Clark, Judge
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.
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
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
1 Expert testimony presented by Chinn established that the inferior alveolar nerve was damaged during the extraction of the lower left wisdom tooth. Although Chinn subsequently underwent surgery by a different surgeon to remove the remnant of this tooth and root, the numbness in his left jaw area did not resolve. 2 Chinn did not allege that Dr. Fiorucci failed to inform him of the risks of the extractions or that he was unaware of any particular risks. 2 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 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.
3 Chinn's experts also testified that Dr. Fiorucci breached the applicable standard of care in other respects, specifically, in proceeding with the extraction of the upper left wisdom tooth despite the fact that the roots of the tooth were fused to the bone; in proceeding with the extraction of the lower left wisdom tooth despite its proximity to the alveolar nerve canal; and in failing to make a prompt referral to a neurosurgical specialist. 4 Judge Lisa B. Kemler presided over the hearing on the motion in limine and entered the order granting the motion. 3 The jury rendered a verdict for Chinn, which was confirmed
by the circuit court.
II. ANALYSIS
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, 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
4 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.5 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
5 Dr. Fiorucci's position at trial was that because Chinn had the option to forego the extractions, his awareness of the risks was relevant to his choice. This position, however, is no different from asserting that Chinn consented to the risks of surgery. Chinn's "choice" to proceed with Dr. Fiorucci's recommendation to undergo surgery was based on Dr. Fiorucci's misdiagnosis. While Chinn "may consent to risks, [he] does not consent to [a negligent diagnosis]." Wright, 267 Va. at 529, 593 S.E.2d at 317. 5 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 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.6 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
at 528, 593 S.E.2d at 317. Thus, the circuit court did not err
6 The issue was actually raised by Dr. Fiorucci, whose counsel asked Dr. Smagalski during his cross-examination to admit that he did not refer the patient to a neurosurgical specialist. Although Dr. Smagalski testified that it was a completely different situation from that involving Chinn, he was not asked to elaborate. On re-direct examination, Dr. Smagalski explained that the situation was different in several respects, including that his patient's tooth was badly infected and there was no acute bleeding during the extraction, and, consequently, no indication of nerve injury. Dr. Smagalski also stated that the patient experienced only partial numbness, went into the situation knowing the probability he would have numbness, and "seemed pretty happy about the treatment." 6 in excluding from evidence Dr. Fiorucci's risk of surgery
discussions with Chinn.
III. CONCLUSION
For the foregoing reasons, we will affirm the judgment of
Affirmed.