PRESENT: All the Justices
HUNTER S. TASHMAN, M.D.
v. Record No. 010028 OPINION BY JUSTICE BARBARA MILANO KEENAN
January 11, 2002
MARGARET GIBBS
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dennis J. Smith, Judge
In this appeal of a judgment in favor of a plaintiff in a
medical malpractice action, we consider whether the trial court
erred in permitting the plaintiff's "informed consent" claim to
be considered by the jury.
We state the evidence in the light most favorable to the
plaintiff, Margaret L. Gibbs, the prevailing party in the trial
court. City of Bedford v. Zimmerman, 262 Va. 81, 83, 547 S.E.2d
211, 212 (2001). The evidence showed that Gibbs had received
obstetrical and gynecological care from the defendant, Hunter S.
Tashman, M.D., over a period of several years. Dr. Tashman had
delivered both of Gibbs' children and had successfully performed
bladder suspension surgery on her. After the delivery of her
second child, Gibbs developed a severe uterine and vaginal
prolapse, a condition in which the uterus collapses and
protrudes through the vagina.
In August 1996, Dr. Tashman examined Gibbs and advised her
that she needed a total hysterectomy and a sacrospinous ligament
suspension procedure (sacrospinous procedure) to correct the
prolapse. In a sacrospinous procedure, the prolapsed vagina is
pulled back into position and secured with sutures fixed to the
sacrospinous ligament.
In October 1996, Dr. Tashman performed a total hysterectomy
and a sacrospinous procedure on Gibbs. When Gibbs awoke from
surgery, she experienced severe pain that radiated from her
right hip, through her right leg, and into her foot. Gibbs
could not straighten her right leg or place any weight on it,
and she experienced numbness in her vaginal area.
The next day, Dr. Tashman examined Gibbs and informed her
that her pain might have "something to do with the sciatic
nerve." After consulting with a neurologist, Dr. Tashman
concluded that the sutures made during the sacrospinous
procedure needed to be removed. Three days after the initial
operation, Dr. Tashman performed a second surgery to remove the
sutures.
After the second surgery, Gibbs was able to straighten her
right leg and to stand upright. Although her level of pain was
reduced, Gibbs still experienced "a great deal of pain." She
ultimately was diagnosed with permanent injury to her sciatic
and pudendal nerves. As a result of these nerve injuries, Gibbs
has experienced recurring medical problems, including permanent
pain and a burning sensation in her right leg and hip, numbness
2
and loss of sensation in her right foot, and a loss of sexual
function due to permanent genital numbness.
Gibbs filed a motion for judgment against Dr. Tashman,
alleging that he was negligent in the manner in which he
performed the sacrospinous procedure and in failing to obtain
her "informed consent" to that procedure. Gibbs alleged that
Dr. Tashman failed to obtain her "informed consent" because he
did not tell her that he lacked experience in performing the
sacrospinous procedure, and did not advise her of the nature and
risks of the operation, including the risk of nerve damage.
During trial of the case, Gibbs presented the expert
testimony of Hilary J. Cholhan, M.D., a gynecologist and
obstetrician who is an associate professor at the University of
Rochester. When asked to define the term "informed consent,"
Dr. Cholhan stated:
[I]nformed consent is not just a piece of paper, it's
a process, and it's a process of educating the patient
so that the patient understands what conditions she
has been diagnosed with and what treatment options are
available to her, be they non-surgical or surgical.
So it's not a piece of paper, it's essentially helping
the patient understand his or her own condition so
that she can make an informed consent based on the
ability to determine what the advantages and
disadvantages are of each treatment, and then the
patient decides what he or she feels is appropriate as
treatment.
Immediately thereafter, counsel for Gibbs asked Dr. Cholhan
whether he had "an opinion to a reasonable degree of medical
3
certainty as to what [the] standard of care [in] Virginia
required in 1996 regarding informed consent." Dr. Cholhan
replied, "That, I answered."
Dr. Cholhan stated that there were different surgical
alternatives available to correct Gibbs' condition. He referred
to the sacrospinous procedure performed on Gibbs as the
"transvaginal approach." In an alternative procedure, a sacral
colpopexy, which is often referred to as the "abdominal
approach," the surgeon makes an incision through the abdomen and
uses the lower part of the spine in the back of the abdominal
cavity as an anchoring point to support the vagina.
Dr. Cholhan testified that Dr. Tashman deviated from the
standard of care when he failed to inform Gibbs of the
"abdominal approach" as an alternative to the sacrospinous
procedure. Dr. Cholhan stated:
[T]he standard of care requires that all alternatives
be discussed, and the abdominal approach was not
discussed. Now, if Dr. Tashman – if it's not within
his surgical armamentarium to do that, then you need
to explain that to the patient, that is not within my
armamentarium, other people favor doing it this way,
however, I do not do it this way for these reasons.
That was not discussed.
Dr. Cholhan defined "armamentarium" as "nothing more than
repertoire, within the operator's skill and experience and
knowledge."
4
When asked whether he had an opinion within a reasonable
degree of medical certainty whether Dr. Tashman breached the
standard of care with respect to obtaining Gibbs' "informed
consent," Dr. Cholhan replied:
[W]ith all the information that I have reviewed and
that's been provided me, including Dr. Tashman's
notes, I saw no evidence that any patient counseling
occurred with respect to alternatives of treatment,
advantages of one treatment over another,
disadvantages, risk factors, or the like.
However, during cross-examination, Dr. Cholhan agreed that Dr.
Tashman's only "shortcoming" concerning obtaining Gibbs'
"informed consent" was his failure to explain to her the
alternatives to the sacrospinous procedure. When asked whether
the "abdominal approach" involved less potential risk than the
"transvaginal approach," Dr. Cholhan responded that "[e]very
procedure has inherent risks."
Gibbs testified that Dr. Tashman failed to inform her
before the surgery that he had never performed a sacrospinous
procedure as a "lead surgeon," and that she would not have
consented to having him perform the surgery if she had been
aware of his limited experience. Gibbs further testified that
Dr. Tashman did not inform her of the possible risk of nerve
damage from the sacrospinous procedure. According to Gibbs, Dr.
Tashman only told her that the procedure could result in some
blood loss and in vaginal dryness. With regard to blood loss,
5
Gibbs also stated that Dr. Tashman assured her that "we won't
need" the two pints of blood that he instructed her to "bank."
At the conclusion of Gibbs' evidence, Dr. Tashman moved to
strike the "informed consent" claim from the negligence action,
arguing that the claim was not supported by sufficient evidence.
The trial court denied the motion.
Dr. Tashman testified concerning his experience with the
sacrospinous procedure. He stated that he had performed two
sacrospinous procedures under the guidance of more experienced
surgeons. He explained that on one of these occasions, he
served as the "lead surgeon" and performed about 90 percent of
the surgery. Dr. Tashman further stated that although the
operation on Gibbs was the first time he performed the
sacrospinous procedure by himself, he had the proper training
and skills to perform the procedure.
Dr. Tashman testified that he informed Gibbs of his
experience with the sacrospinous procedure and presented her
with three options concerning who would perform her surgery. He
told her that he could refer her to a more experienced surgeon
to perform the surgery, that he could perform the operation
himself with the assistance of a more experienced surgeon, or
that he could perform the procedure "solo for the first time."
Dr. Tashman stated that Gibbs said that she preferred that he
6
perform the surgery by himself because she was uncomfortable
having "another surgeon in the room that she hasn't met yet."
Dr. Tashman also testified that he thought that "it crossed
[his] mind to mention" to Gibbs the "abdominal approach" as an
alternative surgical procedure, but he was unable to recall with
certainty whether he had discussed this option with Gibbs.
However, he stated that the "abdominal approach" would not have
been appropriate for Gibbs because of a greater long-term risk
of complications presented by that procedure.
Dr. Tashman also stated that he had informed Gibbs of the
potential risks and complications of the sacrospinous procedure,
including the risk of nerve damage. He testified that when he
advised Gibbs and her husband of these facts, Gibbs acknowledged
that she understood that the procedure would involve an
additional level of risk.
Gibbs' husband, Raymond Dennis Gibbs, was called as a
witness by Dr. Tashman, and testified that when he and his wife
met with Dr. Tashman to discuss the surgery, "Dr. Tashman did
not say anything at all about risk of injury to nerves in this
procedure." Mr. Gibbs also testified that when he asked Dr.
Tashman about the risks involved in the surgery, Dr. Tashman
replied that the sacrospinous procedure was more complicated
than the hysterectomy because, among other things, the surgical
area contains "a lot of nerves." Mr. Gibbs stated that it was
7
his understanding that Dr. Tashman "was just explaining the
procedure" when he made mention of this fact.
Dr. Tashman presented the expert testimony of Fred
Mecklenburg, M.D., an obstetrician and gynecologist who is a
clinical professor at George Washington University. Dr.
Mecklenburg testified that Dr. Tashman's overall evaluation,
care, and treatment of Gibbs complied with the applicable
standard of care. Dr. Mecklenburg also concluded, based on his
review of Dr. Tashman's office notes, that Dr. Tashman had
conducted an "informed consent session" with Gibbs in which the
surgery and its risks and complications were discussed.
Dr. Mecklenburg testified that the applicable standard of
care did not require Dr. Tashman to discuss the "abdominal
approach" with Gibbs. Dr. Mecklenburg stated that "[t]he most
appropriate approach to [Gibbs'] particular set of circumstances
is vaginal. Not only is the abdominal approach more difficult
and more complicated, but [it] is less likely to result in
correction of all of [Gibbs'] problems."
Dr. Mecklenburg testified that Dr. Tashman was "adequately
prepared" to perform the sacrospinous procedure. Dr.
Mecklenburg also stated that for someone with Dr. Tashman's
experience in performing pelvic surgery, training for this
particular procedure is merely a matter of familiarizing the
8
surgeon with the proper location and manner of suture placement,
and that "[i]t comes down to the equation of see one, do one."
At the conclusion of this evidence, the trial court denied
Dr. Tashman's renewed motion to strike Gibbs' "informed consent"
claim. The jury returned a general verdict in favor of Gibbs in
the amount of $4,000,000. Pursuant to Code § 8.01-581.15, the
trial court reduced the jury's award to $1,000,000, and the
court entered judgment on the verdict. Dr. Tashman appeals from
this judgment, challenging the trial court's decision to allow
the jury to consider Gibbs' "informed consent" claim. However,
Dr. Tashman does not assign error regarding the sufficiency of
the evidence of Gibbs' other claim that he was negligent in his
performance of the sacrospinous procedure.
Dr. Tashman argues that the evidence was insufficient as a
matter of law to support Gibbs' "informed consent" claim,
including the nature and extent of his duty of disclosure, and
whether any alleged breach of this duty was a proximate cause of
Gibbs' injuries. He emphasizes that Gibbs' expert, Dr. Cholhan,
did not identify the risks related to the sacrospinous procedure
that a reasonably prudent obstetrician and gynecologist was
required by the standard of care to disclose. Dr. Tashman
further contends that Dr. Cholhan did not testify that the duty
to obtain a patient's "informed consent" requires a physician to
disclose to the patient the extent of his experience in
9
performing a particular procedure. Finally, Dr. Tashman argues
that while Dr. Cholhan's testimony may have established a breach
of the standard of care in Dr. Tashman's failure to inform Gibbs
of the "abdominal approach," there was no evidence that this
omission proximately caused Gibbs' injuries.
In response, Gibbs asserts that the evidence was sufficient
to establish that Dr. Tashman failed to obtain her "informed
consent" because he did not disclose the risks of the
sacrospinous procedure or advise her of any appropriate
alternative procedures. Gibbs also argues that the evidence was
sufficient to establish that in obtaining a patient's "informed
consent," a physician is required to disclose to his patient the
extent of his experience in performing a proposed procedure.
She contends that Dr. Cholhan's testimony supports this
conclusion because he stated that a physician must disclose to
his patient whether a certain procedure or skill is within his
armamentarium. We disagree with Gibbs' arguments.
A physician has a duty in the exercise of ordinary care to
inform a patient of the dangers of, possible negative
consequences of, and alternatives to a proposed medical
treatment or procedure. See Rizzo v. Schiller, 248 Va. 155,
158, 445 S.E.2d 153, 155 (1994). To recover against a physician
for failure to provide such information, the patient generally
is required to establish by expert testimony whether and to what
10
extent any information should have been disclosed. Moates v.
Hyslop, 253 Va. 45, 48, 480 S.E.2d 109, 111 (1997); Rizzo, 248
Va. at 159, 445 S.E.2d at 155; Bly v. Rhoads, 216 Va. 645, 650-
51, 222 S.E.2d 783, 787 (1976).
A physician's duty of disclosure is defined with reference
to the appropriate standard of care. See Dickerson v. Fatehi,
253 Va. 324, 327, 484 S.E.2d 880, 881 (1997); Rogers v. Marrow,
243 Va. 162, 167, 413 S.E.2d 344, 346 (1992); Raines v. Lutz,
231 Va. 110, 113, 341 S.E.2d 194, 196 (1986). We have defined
the standard of care in a medical malpractice action as that
degree of skill and diligence exercised by a reasonably prudent
practitioner in the same field of practice or specialty in
Virginia. Bryan v. Burt, 254 Va. 28, 34, 486 S.E.2d 536, 539
(1997); Pierce v. Caday, 244 Va. 285, 291, 422 S.E.2d 371, 374
(1992); Raines, 231 Va. at 113, 341 S.E.2d at 196.
A physician's deviation from the applicable standard of
care must generally be established by expert testimony.
Dickerson, 253 Va. at 327, 484 S.E.2d at 881; Rogers, 243 Va. at
167, 413 S.E.2d at 346; Raines, 231 Va. at 113, 341 S.E.2d at
196. Once a plaintiff has met the burden of establishing the
standard of care and a deviation from that standard, she may
establish by lay testimony that her physician did not disclose
certain information regarding risks, and that she had no
knowledge of those risks. Bly, 216 Va. at 649-50, 222 S.E.2d at
11
787. As in other negligence actions, the plaintiff also must
prove that the physician's negligent omissions were a proximate
cause of the injury sustained. Bryan, 254 Va. at 34, 486 S.E.2d
at 539-40; King v. Sowers, 252 Va. 71, 76, 471 S.E.2d 481, 484
(1996); Brown v. Koulizakis, 229 Va. 524, 532, 331 S.E.2d 440,
446 (1985).
In the present case, Gibbs' "informed consent" claim was
based on three subjects that Dr. Tashman allegedly failed to
disclose to her prior to the surgery. Those subjects were: 1)
the risks of the sacrospinous procedure, including the risk of
nerve damage; 2) Dr. Tashman's limited experience in performing
the procedure; and 3) the available alternatives to the
sacrospinous procedure.
On the issue of risks, we conclude that Gibbs failed to
establish by expert testimony that the standard of care in 1996
for an obstetrician and gynecologist in Virginia required
disclosure of any particular risks of the sacrospinous
procedure, including the risk of nerve damage. Dr. Cholhan
failed to identify any risks of the procedure that a reasonably
prudent obstetrician and gynecologist was required to disclose
to a patient contemplating such surgery. Instead, he merely
stated that nerve damage is a risk of the procedure, and that he
saw no evidence in the medical records that Dr. Tashman provided
any patient counseling regarding risk factors.
12
Gibbs' contends, nevertheless, that Dr. Tashman's own
testimony established the appropriate standard of care when he
stated that he had advised Gibbs of certain risk factors,
including the risk of nerve damage, that might result from the
sacrospinous procedure. We disagree. This evidence from Dr.
Tashman did not address the standard of care for disclosure of
risks, but merely addressed the factual issue whether he made
any disclosures to Gibbs.
Gibbs next contends, in the alternative, that she was not
required to present expert testimony regarding the standard of
care and Dr. Tashman's deviation from that standard because he
did not advise her of any risks of the sacrospinous procedure.
We do not reach the merits of this argument, however, because
Gibbs' factual premise is incorrect. Gibbs testified that Dr.
Tashman advised her that the surgery could result in blood loss,
although it was unlikely, and in vaginal dryness. Thus, because
Dr. Tashman advised Gibbs of certain risks of the sacrospinous
procedure and Gibbs failed to present expert testimony
establishing what the standard of care required regarding
disclosure of risks, Gibbs' proof on this issue was insufficient
as a matter of law.
On the issue of Dr. Tashman's experience, we conclude that
Gibbs failed to establish by expert testimony that the
appropriate standard of care in 1996 for an obstetrician and
13
gynecologist in Virginia required Dr. Tashman to disclose to
Gibbs the extent of his experience in performing sacrospinous
procedures. Dr. Cholhan did not state that the standard of care
required a reasonably prudent obstetrician and gynecologist to
disclose the extent of his prior experience in performing a
particular surgery. Instead, in his discussion of the
"abdominal approach," Dr. Cholhan stated that if Dr. Tashman did
not have the skill and experience to perform that procedure, he
was required to disclose this fact to his patient.
This testimony did not establish a standard of care
requiring a physician to disclose his prior experience in
performing a particular procedure, but addressed only the
disclosure required by a physician who lacks the skill and
experience to perform a particular procedure. Here, however,
there was no testimony that Dr. Tashman lacked the skill or
experience to perform a sacrospinous procedure. Dr. Mecklenberg
testified that Dr. Tashman was "adequately prepared" to perform
the procedure, based on his experience in performing pelvic
surgery and his prior knowledge of the procedure. In addition,
Dr. Tashman stated that he had the proper skill and experience
to perform the sacrospinous procedure. Thus, we conclude that
the evidence was insufficient as a matter of law to support this
component of Gibbs' "informed consent" claim.
14
We next consider the third subject of Gibbs' "informed
consent" claim, that Dr. Tashman failed to disclose the
available alternatives to the sacrospinous procedure. Dr.
Cholhan testified that the standard of care required Dr. Tashman
to discuss the "abdominal approach" surgical alternative with
Gibbs, and that Dr. Tashman failed to do so. In addition, Dr.
Tashman was unable to recall whether he discussed this surgical
option with Gibbs. This testimony, viewed in the light most
favorable to Gibbs, established a standard of care requiring
such disclosure and Dr. Tashman's deviation from that standard
of care.
There is no evidence in the record, however, that this
deviation from the standard of care was a proximate cause of
Gibbs' injuries. In a medical malpractice action, a plaintiff
must establish not only that a defendant violated the applicable
standard of care, and therefore was negligent, but must also
prove that the negligent act was a proximate cause of her
injury. Bryan, 254 Va. at 34, 486 S.E.2d at 539-40; King, 252
Va. at 76, 471 S.E.2d at 484. A proximate cause of an event is
an act or omission that, in a natural and continuing sequence,
produces the event, and without which the event would not have
occurred. Sugarland Run Homeowners Ass'n v. Halfmann, 260 Va.
366, 372, 535 S.E.2d 469, 472 (2000); Atkinson v. Scheer, 256
15
Va. 448, 454, 508 S.E.2d 68, 71 (1998); Beale v. Jones, 210 Va.
519, 522, 171 S.E.2d 851, 853 (1970).
Here, Gibbs did not state that she would have decided
against having the sacrospinous procedure if Dr. Tashman had
informed her of the "abdominal approach" alternative. Instead,
she stated that she would not have allowed Dr. Tashman to
perform the sacrospinous procedure if she had known of his
limited experience in performing that procedure. Thus, we
conclude that Gibbs' evidence on this component of her "informed
consent" claim was insufficient as a matter of law, because this
evidence did not establish that Dr. Tashman's failure to inform
her of the "abdominal approach" affected her decision to have
him perform the sacrospinous procedure.
Because Gibbs' evidence regarding all three components of
her "informed consent" claim was insufficient as a matter of law
to raise a jury issue, we conclude that the trial court erred in
submitting that part of her malpractice action to the jury.
Based on the trial court's error, Dr. Tashman argues that the
entire negligence action must be remanded for a new trial. We
agree.
We cannot determine from the record whether the jury based
its verdict on the issue of "informed consent" or on the issue
of Dr. Tashman's alleged negligent performance of the
sacrospinous procedure. Therefore, we cannot say that the
16
evidence and instructions erroneously submitted to the jury on
the issue of "informed consent" did not affect its
determination, and we must presume that the jury relied on such
evidence and instructions in reaching its verdict. See
Ponirakis v. Choi, 262 Va. 119, 126, 546 S.E.2d 707, 711-12
(2001); Rosen v. Greifenberger, 257 Va. 373, 381, 513 S.E.2d
861, 865 (1999).
For these reasons, we will reverse the trial court's
judgment and remand the case for a new trial on both counts of
Gibbs' motion for judgment.
Reversed and remanded.
17