Allison v. Brown

PRESENT: All the Justices

DAVID W. ALLISON, ET AL.
OPINION BY
v. Record No. 160314 JUSTICE STEPHEN R. McCULLOUGH
July 27, 2017
DEBORAH BROWN

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Robert J. Smith, Judge

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.

BACKGROUND

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

2
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

3
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.

4
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.

On the “issues” instruction, the jury was informed that

[t]he issues in this case are:

(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.

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.

1
See 2 Virginia Model Jury Instructions -- Civil No. 35.080 (repl. ed. 2013) (styled
“Treatment Without Informed Consent”).

5
ANALYSIS

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.”

CaterCorp, Inc. v. Catering Concepts, Inc., 246 Va. 22, 24, 431 S.E.2d 277, 279 (1993).

The initial complaint in the present action said nothing about battery or intentional

conduct on the part of Dr. Allison. Although it alleged that Dr. Allison operated on the wrong

breast, it was clear that this allegation was made in pursuit of a negligence claim. The only two

counts listed were for “negligence” and the totality of the allegations pointed in that direction.

Paragraph 9 in the factual background section of the complaint stated that Dr. Allison

“performed . . . surgery on the wrong breast,” but the two paragraphs that followed stated that the

plaintiff had to undergo additional surgeries “[a]s a result of said negligence” and that she

suffered injuries “[a]s a result of such negligence.”

Depending on the evidence, a surgery on the wrong body part can constitute either

battery or negligence. Mayr v. Osborne, 293 Va. 74, 81, 795 S.E.2d 731, 735-36 (2017). Our

careful review of the complaint leads us to conclude that the plaintiff’s initial complaint pled

one, and only one, theory of recovery: negligence. Nothing in the complaint informed the

defendant that the plaintiff was alleging the intentional tort of battery. Consequently, we cannot

agree with the plaintiff’s argument that battery was there all along. 2

2
We note that when the plaintiff sought leave to amend, she did not argue, as she later
did, that the complaint already alleged a battery. To the contrary, the plaintiff argued that
alleging an intentional tort is a “very serious matter” and that she did not initially allege the

6
When the plaintiff filed an amended complaint adding a battery count, Dr. Allison

responded with a plea in bar. Judge Devine sustained the plea in bar and struck the battery count

on the ground that it was barred by the statute of limitations. 3 The judge who presided over the

trial, despite repeatedly acknowledging that the battery claim had been dismissed with prejudice,

nonetheless instructed the jury on battery. This was error.

The dismissal of a claim with prejudice is conclusive as to the rights of the parties on that

claim. Dalloul v. Agbey, 255 Va. 511, 514, 499 S.E.2d 279, 281 (1998) (“Claims that have been

dismissed with prejudice are not part of a pending action, because a dismissal with prejudice is

generally as conclusive of the parties’ rights as if the action had been tried on the merits with a

final disposition adverse to the plaintiff.”). A claim cannot be dismissed with prejudice on a pre-

trial plea in bar and later be submitted to the jury. Once the court dismissed the battery claim

with prejudice from the amended complaint, the only claims that remained were for negligence.

Under well-settled Virginia law, “‘[a] litigant’s pleadings are as essential as his proof, and a

court may not award particular relief unless it is substantially in accord with the case asserted in

those pleadings. Thus, a court is not permitted to enter a decree or judgment order based on facts

not alleged or on a right not pleaded and claimed.’” Dabney v. Augusta Mut. Ins. Co., 282 Va.

78, 86, 710 S.E.2d 726, 731 (2011) (quoting Jenkins v. Bay House Assocs., 266 Va. 39, 43, 581

S.E.2d 510, 512 (2003)).

intentional tort of battery as “a matter of prudence.” The plaintiff went on to explain that Dr.
Allison’s March 7, 2014, deposition made clear that battery was a viable count, and that based on
this factual development, the plaintiff was “adding a battery claim.” The plaintiff asserted that
adding the battery claim would “allow[] for an additional instruction for the jury.”
3
The plaintiff has not assigned cross-error to Judge Devine’s dismissal with prejudice of
the battery count. That ruling is now the law of the case.

7
The plaintiff responds that, even if the pleadings do not set forth a claim for a battery,

there is no reversible error because the defendants had actual notice that she was pursuing a

claim for battery. We cannot agree with this contention. The fact that a theory was mentioned

over the telephone, whispered in the hallways of the courthouse, or even presented in a prior trial

does not satisfy the bedrock requirement that a defendant must be notified in a complaint

regarding what claim is being made against him.

The basis of every right of recovery under our system of
jurisprudence is a pleading setting forth facts warranting the
granting of the relief sought. It is the sine qua non of every
judgment or decree. No court can base its decree upon facts not
alleged, nor render its judgment upon a right, however meritorious,
which has not been pleaded and claimed. . . . Pleadings are as
essential as proof, the one being unavailing without the other. A
decree cannot be entered in the absence of pleadings upon which to
found the same, and if so entered it is void. . . . Every litigant is
entitled to be told by his adversary in plain and explicit
language what is his ground of complaint or defense. . . . The
issues in a case are made by the pleadings, and not by the
testimony of witnesses or other evidence.

Ted Lansing Supply Co. v. Royal Aluminum & Constr. Corp., 221 Va. 1139, 1141, 277 S.E.2d

228, 230 (1981) (quoting Potts v. Mathieson Alkali Works, 165 Va. 196, 207, 181 S.E. 521, 525

(1935)).

The plaintiff also cites Code § 8.01-275. That statute provides as follows:

No action or suit shall abate for want of form where the motion for
judgment or bill of complaint sets forth sufficient matter of
substance for the court to proceed upon the merits of the cause.
The court shall not regard any defect or imperfection in the
pleading, whether it has been heretofore deemed mispleading or
insufficient pleading or not, unless there be omitted something so
essential to the action or defense that judgment, according to law
and the very right of the cause, cannot be given.

8
We have held that the purpose of this statute is to foreclose “demurrers challenging pleadings on

grounds that are not substantial or material, and which do not go to the very merits of a cause.”

Griffin v. Griffin, 183 Va. 443, 449, 32 S.E.2d 700, 702 (1945).

A pleading will be “upheld as sufficient, however informal, where [it is] sufficient in

substance to fairly apprise the defendant of the nature of the demand made upon him, and states

sufficient facts to enable the court to say that if the facts stated are proved, the plaintiff is entitled

to recover.” Mankin v. Aldridge, 127 Va. 761, 765, 105 S.E. 459, 460 (1920). And that is just

the problem. The complaint as originally filed made no mention of battery. Although the

complaint did repeatedly allege that Dr. Allison operated on the wrong breast, it always

unmistakably tied this allegation to a negligence theory and, therefore, did not fairly apprise the

defendant that the plaintiff was claiming a battery. Recognizing this deficiency, the plaintiff

sought to amend, but the trial court ruled that the amendment was barred by the statute of

limitations.

We hold that the trial court erred in instructing the jury on battery and we reverse on this

ground. 4

II. THE PLAINTIFF FAILED TO ESTABLISH PROXIMATE CAUSATION IN CONNECTION WITH
A THEORY OF INFORMED CONSENT.

Dr. Allison also challenges the plaintiff’s informed consent theory on a number of

grounds. Among other things, he argues that the trial court should not have instructed the jury

4
The plaintiff, citing Rule 5:25 and the invited error doctrine, also argues that by failing
to object to the general verdict form, which did not differentiate between theories of recovery,
Dr. Allison waived the arguments he presses on appeal. We disagree. Dr. Allison repeatedly
made his objection known to the trial court, pretrial, during trial, and after trial. He provided the
trial court with multiple opportunities to consider his arguments and gave the plaintiff ample
opportunities to respond to these arguments. Nothing more was required. See, e.g., Wright v.
Norfolk & W. Ry. Co., 245 Va. 160, 167-68, 427 S.E.2d 724, 728 (1993). See also Code
§ 8.01-384.

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on informed consent and erred in denying his motion to strike the plaintiff’s informed consent

claim. He argues that the plaintiff’s failure to prove proximate causation is fatal to her informed

consent claim. He argues that to prevail on an informed consent claim, a plaintiff must prove

that, had the doctor made the disclosures required under the standard of care, she would not have

proceeded with the surgery. Responding, the plaintiff takes the view that “a lack of consent, by

its definition, means there was a lack of informed consent.” Put another way, the plaintiff’s

position is that surgery without consent is a mere subset of informed consent. Because she did

not consent to the surgery, she argues, she proved her damages when the surgery nevertheless

took place. We do not agree with the plaintiff.

“The theories of battery and informed consent are diametrically opposed and mutually

inconsistent.” Whitley-Woodford v. Jones, 600 A.2d 946, 947 (N.J. Super. Ct. App. Div. 1992).

A battery is an intentional tort which, by definition, is not a cause
of action for negligence. A claim in battery . . . may lie . . . where
an operation is performed without the patient’s consent or where
the operation is not the surgical procedure to which the patient
gave his consent. By contrast, where the consent to the treatment
was given but with insufficient or incomplete disclosure of risks
[or alternatives], the cause of action is . . . based on negligence of
the physician to meet a recognized standard of care.

Baltzell v. Van Buskirk, 752 S.W.2d 902, 906 (Mo. Ct. App. 1988).

To prove a battery, the plaintiff must establish that the physician intentionally “performed

an operation against the patient’s will or substantially at variance with the consent given.” Mayr,

293 Va. at 84, 795 S.E.2d at 737 (citation and internal quotation marks omitted). In other words,

did the physician deliberately “disregard the patient’s consent regarding the procedure or the

scope of the procedure.” Id. A plaintiff who proves a battery may recover damages even for a

successful, skillfully performed surgery. Id. at 81, 795 S.E.2d at 736. To succeed on an

informed consent claim, the plaintiff must establish that the physician breached the standard of

10
care by failing to disclose the material risks associated with the treatment or procedure, or the

existence of alternatives if there are any, thereby precluding the plaintiff from making an

informed decision about whether to undertake a particular procedure or course of treatment.

Tashman v. Gibbs, 263 Va. 65, 73-74, 556 S.E.2d 772, 777-78 (2002); see also Mayr, 293 Va. at

85, 795 S.E.2d at 737-38.

We have held that the plaintiff in an informed consent case must prove not only that the

physician was negligent but also “that the negligent act was a proximate cause of her injury.”

Tashman, 263 Va. at 76, 556 S.E.2d at 779. In this context, that means that the patient must

prove that she would not have agreed to the treatment or procedure had the physician made a

proper disclosure of the risks and alternatives associated with the treatment or procedure. Id.; 5

see, e.g., Coryell v. Smith, 653 N.E.2d 1317, 1319 (Ill. Ct. App. 1995) (“All courts recognizing

the doctrine of informed consent require proof of proximate causation. The rule is that a plaintiff

cannot recover under the doctrine unless [she] can prove by a preponderance of the evidence that

[she] would not have given [her] consent to the proposed procedure had full and adequate

disclosure been made at the time consent was originally given.”).

The plaintiff’s argument incorrectly collapses consent into informed consent. 6 Her

evidence was that she did not consent at all to the surgery on her left breast. She presented no

5
We note that we have not squarely addressed whether Virginia’s law of informed
consent includes an objective standard (that is, that a reasonably prudent person in the plaintiff’s
position would not have consented to treatment when provided with proper disclosures) or a
subjective standard (that this patient would not have consented in the face of the disclosures
required by the standard of care). This case does not call upon us to answer that question.
6
The plaintiff relies on the following passage from Rizzo v. Schiller, 248 Va. 155, 159,
445 S.E.2d 153, 155-56 (1994): “The law requires informed consent, not mere consent, and the
failure to obtain informed consent is tantamount to no consent.” “Tantamount” means “akin to”
or “equivalent in . . . significance, or effect.” Webster’s Third New International Dictionary
2338 (1993). The Court in Rizzo was thus not conflating a lack of consent with the absence of

11
evidence that a lack of disclosures by Dr. Allison prevented her from making an informed

decision with respect to the surgery on her left side or that she would not have elected to have the

surgery on that side in the face of proper disclosures. Her claimed damages did not flow from a

lack of information about the procedure, i.e., informed consent, but rather from a lack of consent

altogether. Without any evidence to establish proximate causation, the informed consent claim

fails as a matter of law. Accordingly, the trial court should have granted Dr. Allison’s motion to

strike the claim of informed consent and should not have instructed the jury on that theory. We

reverse the judgment below on that basis as well.

III. THE APPROPRIATE REMEDY IS A REMAND FOR A NEW TRIAL ON THE PLAINTIFF’S
ORIGINAL THEORY OF NEGLIGENCE.

Dr. Allison urges us to reverse and enter final judgment in his favor. The complaint

alleged that Dr. Allison negligently performed a surgery on the wrong breast. Although the

evidence adduced by the plaintiff could support a finding of battery, it also could lead a jury to

conclude that Dr. Allison did not deliberately ignore the plaintiff’s wishes and that he was

instead negligent.

Consent is an umbrella term. A surgery performed without consent may include (1) the

intentional tort of battery, (2) an operation for which the plaintiff did not consent or had

withdrawn her consent, but the physician negligently, rather than deliberately, performed the

procedure, Mayr, 293 Va. at 84, 795 S.E.2d at 737, and (3) lack of informed consent, see

Tashman, 263 Va. at 73-74, 556 S.E.2d at 777-78. The plaintiff’s evidence was amply sufficient,

informed consent. Rizzo frames informed consent as a negligence tort, id. at 158-60, 445 S.E.2d
at 155-56, and other cases have followed suit. See, e.g., Mayr, 293 Va. at 85, 795 S.E.2d at
735-37; Tashman, 263 Va. at 73-76, 556 S.E.2d at 777-79.

12
if believed, to support a finding that Dr. Allison negligently performed the surgery despite the

plaintiff’s withdrawal of her consent.

In instruction V, the court instructed the jury that

(emphases added). Instruction V lends itself to two interpretations. In the context of this case,

where the plaintiff’s evidence addressed both her lack of consent to the procedure and informed

consent, this instruction may well have led the jury to improperly equate withdrawn consent with

lack of informed consent and to find Dr. Allison negligent on this basis. Alternatively, the jury

may have interpreted this instruction to mean that although Dr. Allison properly informed his

patient of the risks associated with the surgery, he was negligent because he performed the

surgery without her consent. Dr. Allison focuses upon the “informed” portion of the instruction.

But the jury may have found the “consent” language pivotal. In other words, the jury could have

read the instruction to mean that the plaintiff must not only be informed, she must also consent

after having been informed. And because she did not consent, the jury could have reasoned, Dr.

13
Allison was negligent. In light of this ambiguity, and the jury’s general verdict, we remand the

case for retrial solely on the plaintiff’s original negligence counts. 7

CONCLUSION

For these reasons, we will reverse and remand for a new trial consistent with this opinion.

Reversed and remanded.

JUSTICE McCLANAHAN, with whom JUSTICE POWELL joins, concurring in part and
dissenting in part.

I concur in the Court’s holdings that the trial court erred in instructing the jury on

informed consent and battery for the reasons stated in the majority opinion. I dissent, however,

from the Court’s decision to remand the case for a “retrial” on plaintiff’s “original theory of

negligence” because the plaintiff only presented two theories of recovery to the jury – informed

consent and battery. On appeal, Dr. Allison has prevailed on both theories. The plaintiff is not

entitled to a “retrial” on a theory of negligence she never presented to the jury. A new trial is

generally granted to a defendant when a general verdict is returned for the plaintiff and the court

cannot determine whether it was based on an issue that was properly submitted to the jury or an

issue that was improperly submitted to the jury. 1 Here, the Court is rewarding plaintiff, the

7
Our disposition of the case obviates the need for us to address Dr. Allison’s remaining
assignments of error. In this connection, however, we insert a note of caution with respect to
instruction 18, which informed the jury that it should not consider the question of insurance
during its deliberations. “The mention of insurance constitutes reversible error requiring a new
trial when the comment probably has misled or prejudiced the jury.” Lombard v. Rohrbaugh,
262 Va. 484, 493-94, 551 S.E.2d 349, 353 (2001). Although we have recognized limited
exceptions, such as “to show the interest, bias or prejudice of a hostile witness” who has a
“substantial connection” to the insurance carrier, id. at 495, 551 S.E.2d at 355, none of the
recognized exceptions to our general rule are present in this case.
1
See, e.g., Nail v. Jefferson Cnty. Truck Growers Ass’n, 542 So.2d 1208, 1214-15 (Ala.
1988) (holding that where the trial court properly submitted some claims to the jury but
improperly submitted other claims, a new trial was required on claims properly submitted to the

14
losing party on appeal, with a new trial where a general verdict was rendered on only improperly

submitted issues.

At trial, plaintiff presented a claim for negligence based on the theory that Dr. Allison

failed to obtain her informed consent for the operation on her left breast and a claim for battery

based on the theory that Dr. Allison operated on her left breast without her consent. During

arguments on Dr. Allison’s pre-trial motions, plaintiff explained that the essence of her claims is,

and always has been, that “Dr. Allison operated on the wrong breast. That can only mean one of

two things: He had no consent or he didn’t have the informed consent . . . that is required.”

(Emphasis added.) Plaintiff further elaborated on her two claims stating that “there’s essentially

two things that could have happened here, either Dr. Allison did not have consent at all, which is

one of our claims, in which case he has committed a consent battery claim, if you want to use

jury since the appellate court could not determine that the jury’s general verdict was based on the
properly submitted claims); Matomco Oil Co. v. Arctic Mech., Inc., 796 P.2d 1336, 1343 (Alaska
1990) (noting that where any one of several issues is erroneously submitted to the jury and a
general verdict is returned for plaintiff, the defendant is entitled to a new trial on the issues
properly submitted due to the “impossibility of knowing whether the general verdict was based
upon a properly submitted issue or an improperly submitted issue”); Bruce Church, Inc. v.
United Farm Workers, 816 P.2d 919, 931 (Ariz. Ct. App. 1991) (noting that the defendant was
entitled to have a general verdict set aside and new trial on properly submitted issues where “it is
impossible to say whether the verdict was based upon an issue which was properly submitted to
the jury or upon an issue which was improperly submitted”); Mosher v. Schumm, 166 P.2d 559,
561 (Colo. 1946) (holding that the defendant was entitled to new trial on a theory properly
submitted to the jury “since the cause was submitted to the jury on instructions covering both
grounds for recovery alleged by plaintiff, one of which was valid and the other not so” and it was
“impossible to determine from the general verdict returned, upon which theory the jury found for
plaintiff”); Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 710 (Iowa 2016) (same); Zaremba
Equip., Inc. v. Harco Nat’l Ins. Co. 761 N.W.2d 151, 166 (Mich. Ct. App. 2008) (same); Schroht
v. Voll, 71 N.W.2d 843, 846 (Minn. 1955) (same); Clark v. Board of Education, 109 N.E.2d 73,
74 (N.Y. 1952) (same); Handex of the Carolinas, Inc. v. County of Haywood, 607 S.E.2d 25, 37
(N.C. Ct. App. 2005) (same).

15
that word, or our proof . . . will be that he didn’t adequately explain to Ms. Brown what he was

planning to do, which is lack of informed consent.” (Emphases added.)

When Dr. Allison moved to strike the evidence, both parties clearly understood that the

only theories before the Court were informed consent and battery. As Dr. Allison argued in his

motion to strike, “there are two claims . . . . There’s what’s been referred to as ‘the consent

battery claim’ and then the informed consent claim.” Dr. Allison argued that the battery claim

was previously dismissed with prejudice on the ground that it was barred by the statute of

limitations and that there was insufficient evidence as to the claim for lack of informed consent.

In response, plaintiff argued that the battery claim should not relate back to her original

complaint and that there was sufficient evidence to support the informed consent claim based on

her testimony that Dr. Allison did not adequately describe on the consent form the procedure he

was planning to perform and did not adequately disclose the risks of surgery on plaintiff’s left

breast. The plaintiff did not argue that the evidence supported any theory of negligence other

than lack of informed consent.

During the discussion of jury instructions, the parties again represented to the Court that

there were two theories of recovery at issue. Plaintiff stated “the facts support, I would argue,

both a battery claim, no consent, and a lack of informed consent complaint . . . and therefore, I

think we should be allowed to pursue one, both or the other.” (Emphases added.) In fact,

plaintiff expressed concern that since her negligence claim was based only on lack of informed

consent, it might confuse the jury to use the term “negligence” instead of “informed consent” and

noted that the finding instruction should “tell[] the jury what the two actual claims are here.”

(Emphasis added.) When plaintiff suggested that each instruction be changed to make it more

clear to the jury that the term “negligence” referred to lack of informed consent, the trial court

16
concluded that since the jury would be instructed that Dr. Allison was negligent if he failed to

obtain informed consent, it could “discern that negligence means informed consent or lack of

informed consent.”

In the issues instruction, the jury was instructed that there were only two theories upon

which plaintiff could recover – informed consent and battery. Specifically, the jury was

instructed as follows:

The issues in this case are:

(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?
______________________________

(3) Did the defendant commit a battery?
(4) If he committed a battery, was the battery a proximate cause of the
plaintiff’s injuries?
______________________________

(5) If the plaintiff is entitled to recover, what is the amount of her damages?

On these issues, the plaintiff has the burden of proof.

Your decision on these issues must be governed by the instructions that
follow.

Therefore, the jury was clearly instructed to determine whether Dr. Allison was “negligent in that

he did not have informed consent.” The jury was not instructed to determine whether Dr. Allison

was negligent upon any other ground. Instead, when the parties submitted the issues instruction

to the court, they told the court that this instruction was plaintiff’s new instruction revised to

clarify the issue of negligence by inserting the language, “in that he did not have informed

consent.”

Furthermore, the only instruction the jury was given to enable it to make a finding of

negligence was the instruction on the doctor’s duty to obtain his patient’s informed consent.

17
This instruction explained the legal duty to obtain a patient’s informed consent before treatment,

judged by the standard of a reasonably prudent practitioner, and told the jury that the doctor was

negligent if he failed to perform this duty. 2 Plaintiff offered the testimony of Dr. Weinberg to

establish the standard of care in connection with her informed consent claim. See Mayr v.

Osborne, 293 Va. 74, 76, 795 S.E.2d 731, 738 (2017) (noting that unlike the tort of medical

battery, “[f]ailure to abide by the standard of care regarding disclosures is quintessentially an

action for negligence which will ordinarily call for expert testimony”). Plaintiff did not seek an

instruction on any negligence theory other than informed consent, and no instruction given, other

than the informed consent instruction, permitted the jury to find that Dr. Allison was negligent. 3

2
The jury was specifically instructed as follows:

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 intelligent 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.
3
In fact, plaintiff withdrew the following jury instruction (Jury Instruction 11), based on
2 Virginia Model Jury Instructions – Civil No. 35.000, which would have instructed the jury as
to the duty owed by a doctor under a separate negligence theory:

A doctor has a duty to use the degree of skill and diligence in the care and
treatment of his patient that a reasonably prudent doctor in the same field of
practice or specialty in this State would have used under the circumstances of this
case. This is referred to as the standard of care.

If a doctor fails to perform this duty, then he is negligent.

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II.

Although the majority states that the evidence was sufficient “to support a finding that

Dr. Allison negligently performed the surgery despite the plaintiff’s withdrawal of her consent,”

the jury was not instructed to consider whether Dr. Allison was negligent in performing the

surgery despite the plaintiff’s withdrawal of her consent and was certainly not given a duty

instruction on which it could base a finding of negligence under this theory. I disagree with the

majority that the parties and the trial court unwittingly submitted this theory to the jury through

the informed consent instruction.

First, I do not believe that any reasonable juror could have misunderstood the plain

language of the informed consent instruction. The instruction told the jury that a doctor has a

duty “to obtain his patient’s informed consent before he treats her” and defined “informed

consent” as “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.” While the majority posits that this language may have led

the jury to “improperly equate withdrawn consent with lack of informed consent,” only a jury

that completely ignored the plain language of the instruction could have done so.

Furthermore, even if the jury had misread the language of the instruction defining the

doctor’s duty to obtain the patient’s informed consent, the instruction told the jury to find Dr.

Allison liable “if you believe from the evidence that the patient would have refused the treatment

if the doctor had disclosed the information.” No reasonable jury could have interpreted that

language to mean, instead, that it should find Dr. Allison liable if it believed from the evidence

19
that the patient did refuse the treatment or that the patient withdrew her consent to treatment. 4

The majority’s speculation otherwise fails to give effect to the presumption that the jury followed

the trial court’s instructions. See Gilliam v. Immel, 293 Va. 18, 795 S.E.2d 458, 462-63 (2017)

(stating that “[i]t is well established that we presume that the jury follows the instructions that are

given”); see also Medici v. Commonwealth, 260 Va. 223, 229, 532 S.E.2d 28, 32 (2000) (“We

presume that jurors followed a court’s instruction, unless the record plainly shows otherwise.”)

(citing Spencer v. Commonwealth, 240 Va. 78, 95, 393 S.E.2d 609, 619 (1990), overruled on

other grounds by Townsend v. Commonwealth, 270 Va. 325, 333, 619 S.E.2d 71, 76 (2005)).

In any event, as the majority holds, the informed consent instruction should never have

been given to the jury. Therefore, the majority is remanding this case to afford the plaintiff a

new trial on a theory purportedly contained within an instruction that was improperly submitted

to the jury in the first place. Although the record demonstrates that plaintiff only intended to

present one negligence theory to the jury, even if we assume that plaintiff did intend to submit a

second negligence theory to the jury, she bore the responsibility for submitting an appropriate

jury instruction that contained this theory. See Honsinger v. Egan, 266 Va. 269, 275, 585 S.E.2d

597, 601 (2003) (“In a civil trial, the burden is on the parties to furnish the trial court with proper

and appropriate instructions that address their respective theories of the case.”). No credible

argument can be made that plaintiff satisfied her burden of furnishing the trial court with a

proper instruction on a separate negligence theory based on withdrawn consent.

4
The informed consent instruction was based on 2 Virginia Model Jury Instructions –
Civil No. 35.080. The language of this instruction is a clear and concise statement of the law of
informed consent in Virginia. See, e.g., Mayr v. Osborne, 293 Va. 74, 85, 795 S.E.2d 731, 738
(2017); Tashman v. Gibbs, 263 Va. 65, 73-76, 556 S.E.2d 772, 777-79 (2002). After this
decision, the future utility of this instruction is unclear, particularly since the majority has not
offered the bar any suggestion as to how the instruction might be revised so as not to create the
ambiguity the majority posits and so as not to conceal a separate theory of negligence.

20
III.

In sum, the only negligence claim tried in this case was plaintiff’s claim that Dr. Allison

did not obtain her informed consent. But as the majority opinion concludes, that claim should

not have been presented to the jury. Therefore, I disagree with the majority that this case should

be remanded for a “retrial” on plaintiff’s “original negligence theory.” There was no other

negligence theory presented to the jury and this Court should not construct one for the plaintiff in

order to give her a “second bite at the apple.” Since Dr. Allison has prevailed on the only two

theories that were presented to the jury, I would hold that he is entitled to final judgment in his

favor.

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