Maryland Defense Counsel, Inc. Promoting justice. Providing solutions


box top

Membership Criteria

Membership is open to practicing attorneys who devote the majority of their litigation-related time to the defense of civil litigation.

Join MDC

(Volume discounts for law firms and reduced rates for government attorneys. Click here for information.)

box bottom

Get Adobe Reader

E-Alert Case Updates

Informed Consent Discussions Excluded in Medical Malpractice Case

Fiorucci v. Chinn
No. 131869 (Supreme Court of Virginia, October 31, 2014)

by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (

Available at:

In Fiorucci v. Chinn, No. 131869 (Supreme Court of Virginia, October 31, 2014), the Court examined the admissibility of certain informed consent discussions between a patient and his oral surgeon in a medical malpractice case involving a wisdom tooth extraction. The trial court excluded evidence of the discussions that the patient had with the oral surgeon about the risks of surgery, and after the jury returned a verdict for the patient, the oral surgeon appealed.

In terms of the underlying pertinent facts, the patient was referred to the oral surgeon for three (3) impacted wisdom teeth. The oral surgeon recommended extraction. The surgery went awry: as to one (1) tooth, the oral surgeon perforated the bone which left a large opening in the sinus. The surgeon was unable to remove completely the second tooth due to severe bleeding, and he did not attempt to remove the third tooth. The patient experienced bleeding, pain, and numbness following the failed surgery.

The patient filed a Complaint against the surgeon, contending that the surgeon was negligent in failing to diagnose properly the condition of the teeth and in recommending and performing the extractions. According to Plaintiff’s experts, the teeth were not decayed, but were in a “benign resorption process,” and the surgeon breached the applicable standard of care by misdiagnosing the issue and performing a supposedly unnecessary surgery.

During trial, the surgeon sought to introduce the risk of surgery discussions that he had with the patient, which included risks of nerve injury, opening of the sinus, and permanent numbness. The trial court excluded evidence of the discussions, on grounds that they were not relevant.

On appeal, the Court noted that it had previously held that risk of surgery discussions were inadmissible in medical malpractice trials because evidence of information conveyed to the patient concerning the risks of surgery in obtaining his consent is neither relevant nor material to the issue of the standard of care in performing the surgery. 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 that, contrary to the law and the evidence, consent to the surgery was tantamount to consent to the injury which resulted from the surgery. The Court held that this rule applied to a claim premised on pre-operative negligent treatment, specifically, a case involving negligent diagnosis, as here. The patient’s awareness of the risks of the extractions was not a defense against his claim that the Defendant deviated from the standard of care in misdiagnosing the condition of Plaintiff’s wisdom teeth or negligently performing the surgery. Therefore, the appellate court agreed with the ruling of the trial court that informed consent discussions were neither relevant nor material to the issue of the standard of care. The Court further determined that Plaintiff had not placed the risk of surgery discussions at issue in the trial. Therefore, the informed consent discussions between the surgeon and the patient were properly excluded in this medical negligence case.