Court Limits Informed Consent Claims In Misdiagnosis Cases: In its Opinion dated December 29, 2022, the Court of Appeals of Virginia stated: “This case presents two matters of first impression in Virginia medical malpractice law. First, can a claim that a physician proceeded without informed consent rest on that physician’s failure to inform the patient that the physician may have misdiagnosed them, rendering other alternative treatments more appropriate? Second, should a factfinder assessing whether a failure to obtain informed consent was the proximate cause of later injuries ask whether the particular patient, or a reasonable patient, would have gone forward with the procedure anyway?”
“We conclude that a negligence theory based on a physician’s failure to obtain informed consent must be constrained by the diagnosis that physician actually made. As a result, the trial court erred by allowing Bowman to proceed on an informed consent claim based (in part) on Dr. Pergolizzi’s failure to inform Bowman about alternative treatments that would have been appropriate had he reached a different diagnosis. We also hold that under Virginia law, a factfinder must determine whether the plaintiff herself—not an objective “reasonable person”—would have elected alternative treatment after receiving adequate information from the physician.”
Informed Consent
In Virginia, to succeed on an informed consent claim, the plaintiff must establish that the physician breached the standard of 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.
The Virginia Appellate Court stated in the case it was deciding: “Virginia’s courts have not previously decided whether the standard of care for informed consent requires disclosure of other possible diagnoses and their corresponding alternatives and risks. Whereas some states have a statutory cause of action for informed consent, Virginia recognizes a claim based on a lack of informed consent as a subset of a negligence tort.”
“We adopt the majority rule that a physician has no duty to inform a patient about the risk of misdiagnosis or about alternatives that would only be appropriate had the physician correctly diagnosed the patient. Negligent misdiagnosis and lack of informed consent are distinct theories of negligence. The trial court erred in allowing Bowman’s experts to testify that Dr. Pergolizzi’s duty to Bowman included disclosing the possibility that he had misdiagnosed her aneurysm as ruptured and offering alternatives that would only be appropriate for an unruptured aneurysm.”
“Our holding today is limited to cases in which a physician makes a diagnosis to the exclusion of other possible diagnoses. As a result, we do not consider what rule may be appropriate when it is unclear what the physician’s actual diagnosis was.”
Subjective Standard For Informed Consent
“Applied to informed consent, a physician’s failure to inform must be a cause-in-fact of the plaintiff’s injury. That causal connection exists if the plaintiff shows that, had the appropriate information been disclosed, she would not have consented to treatment. Thus, the failure to adequately inform cannot be the proximate cause of later injury if the plaintiff would have submitted to the treatment even had a full disclosure been made. What a “reasonable person” may have done simply does not map onto the cause-in-fact component of the proximate cause framework … Having clarified that a subjective standard of proximate causation applies, a plaintiff’s testimony about whether she would have undergone a procedure if the physician had satisfied his duty to obtain informed consent is relevant evidence.”
Source Pergolizzi v. Bowman, Record No. 0072-22-4.
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