Allison v. Brown
801 S.E.2d 761
Va.2017Background
- Deborah Brown underwent bilateral mastectomy and later reconstructive surgeries performed by Dr. David W. Allison; radiation to the left breast increased surgical risk on that side.
- Before a November 22, 2011 surgery, Brown contends she withdrew consent for work on the left breast and intended surgery only on the right; Dr. Allison contends she consented to bilateral surgery.
- Brown filed suit alleging negligence for operating on the wrong breast; initial complaint pleaded only negligence (no battery count).
- Brown sought to amend to add a battery claim; the trial court initially allowed the amendment but a later judge dismissed the battery count with prejudice as time‑barred.
- At trial the court nevertheless instructed the jury on battery and on informed consent; the jury returned a general verdict for Brown. The trial court denied post‑trial motions, and defendant appealed.
- The Supreme Court of Virginia reviewed whether battery was pleaded or properly submitted, and whether the informed‑consent theory was supported by causation evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the original complaint pleaded battery | Battery was "there all along" because complaint alleged surgery on the wrong breast | Complaint alleged negligence only; no allegation of intentional tort/battery | The initial complaint did not assert battery; battery was not fairly pleaded; reversed error in submitting battery to jury |
| Whether the amended battery claim was timely / properly before the jury | Amendment added battery; leave to amend was granted earlier and battery had been tried | Battery was dismissed with prejudice by Judge Devine as time‑barred; dismissed claim cannot be submitted to jury | Dismissal with prejudice is conclusive; submitting battery to jury was error; jury instruction on battery reversed |
| Whether an informed‑consent claim was supported by proximate‑causation evidence | Lack of any consent equates to lack of informed consent; damages flow from surgery performed without consent | Informed‑consent is a negligence theory requiring proof that proper disclosure would have changed the patient's decision | Plaintiff failed to prove proximate causation for informed consent (no evidence she would have declined if properly informed); informed‑consent instruction should not have been given; reversed |
| Remedy: entry of judgment for defendant vs. remand for new trial on negligence | Case should be retried on negligence theory alleged in original complaint (negligent performance on wrong breast) | Trial included only informed‑consent and battery theories; defendant prevailed on both on appeal so should get judgment | Court remanded for new trial limited to plaintiff’s original negligence claims; concurring/dissent would have entered final judgment for defendant |
Key Cases Cited
- Mayr v. Osborne, 293 Va. 74, 795 S.E.2d 731 (operation on wrong body part can be battery or negligence)
- Tashman v. Gibbs, 263 Va. 65, 556 S.E.2d 772 (elements of informed consent; proximate‑causation requirement)
- Dalloul v. Agbey, 255 Va. 511, 499 S.E.2d 279 (dismissal with prejudice is conclusive)
- Dabney v. Augusta Mut. Ins. Co., 282 Va. 78, 710 S.E.2d 726 (relief must be substantially in accord with pleaded claims)
- Lombard v. Rohrbaugh, 262 Va. 484, 551 S.E.2d 349 (mention of insurance can be reversible error)