UPDATE ON RECENT APPELLATE DEVELOPMENTS

(Posted August 1, 2017)  The justices of Virginia’s highest court announced one ruling last Thursday, July 27. Allison v. Brown is a medical-malpractice appeal, arising from breast-cancer surgery. The patient claimed that she consented to surgery on only her right breast, but the surgeon operated on both. Because of “significant complications to her left breast following this surgery,” the patient sued, asserting claims for medical negligence and battery.

My regular readers will immediately recall the recent SCV decision in Mayr v. Osborne, which in my view was the death knell for battery claims in surgical settings. Justice McCullough wrote the Mayr opinion, and he draws this one, too, lending further credence to my sly supposition that opinion-writing assignments aren’t as random as they used to be at Ninth and Franklin. But I digress.

In the trial court, the doctor succeeded in getting the battery claim struck on limitations grounds, leaving two med-mal claims to be tried – simple medical negligence, and lack of informed consent. But for reasons I can’t fathom, during the trial the judge agreed to instruct the jury on a battery theory: lack of any consent. The jury returned a general verdict for the plaintiff, and the doctor got a writ.

The Supreme Court has no trouble in reversing the award based on battery. Once the court dismisses a claim pretrial, I can’t envision a circumstance in which it’s proper to submit that claim to a jury for decision. It also rules that the patient failed to establish proximate causation on her informed-consent claim. But the court divides on what to do about this.

A five-member majority of the court votes to remand the case for retrial on the patient’s medical-negligence claim, since the evidence in the case could have supported an award for that. (The theory is that the doctor properly informed the patient, but then botched the job once he got her on the operating table.) But Justices McClanahan and Powell believe that the patient abandoned that claim in the trial court.

Based on the arguments raised in the dissent, it looks like they have a point. Here’s a quote from the patient’s lawyer in a pretrial hearing: “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.” Similarly, during arguments on jury instructions, the patient’s lawyer expressed that he was advancing two claims, not three: “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.” The lawyer also told the judge that it was important to “tell[] the jury what the two actual claims are here.”

There’s more. In instructing the jury, the court gave an issues instruction that included the question, “Was the defendant negligent in that he did not have informed consent?” There was no instruction on the botched-surgery concept; the patient didn’t offer one. The dissenting justices accordingly feel that the doctor should get final judgment, since the doctor has now prevailed on the only issues that were actually submitted to the jury.

SCV road shows announced

Each summer, the Supreme Court of Virginia convenes writ panels in locations other than the Supreme Court Building in Richmond. Court insiders refer to these with the light-hearted term “road shows,” and they’re a wonderful innovation, bringing the court to the public. This year, the panels will convene in Marion, the seat of Smyth County in southwestern Virginia, and in Fairfax, in addition to one panel in Richmond. The Richmond panel will convene August 23 at noon, while the one in Fairfax will meet starting at 9:00 the next morning. I believe – though I’m not certain – that the Marion panel will meet at the same time as the one in Fairfax.

I’ll add two points about the panels. First, they’re a terrific opportunity for you to get to see the Supreme Court in action, if you live in southwestern or northern Virginia. The hearings are open to the public, and they’re free; just be sure to leave your cell phone in your car when you go, because you won’t be allowed to bring it into the courthouse.

If you’re looking to develop an appellate practice or to hone your skills, there are worse ways to do it than by going to one of the panels and watching as the court entertains six or seven separate arguments in each hour. You’ll see some good arguments and probably some bad arguments; it’s up to you to discern which are which, and to distill what you’ll learn so you can improve your own appellate ability.

Second, these panels are one of the very best contributors to a positive public image for the court. There’s something a little foreboding for some lawyers about getting a summons to appear in Richmond; but when the justices come to you, it’s a nice touch that humanizes them. And in my experience, when the court meets in these remote locations, the local bar associations sponsor a reception the night before, so you can see for yourself that there are flesh-and-blood people behind those robes. You can learn that the justices aren’t made of marble; they’re very pleasant people and you can talk to and even relate to them.

I don’t get a vote in this, so I’ll just express a view and hope that the court takes it to heart: The Supreme Court ought to do this more often than once a year. It’s good for the lawyers the court sees, and it’s wonderful for the court’s public image. Anything that enhances transparency in government is a good thing, and this is one way that the court can advance that goal, too. It doesn’t have to be for every writ-panel seating, but doing it more often than once yearly can’t hurt.

By the way, I should add a note of appreciation to the Court of Appeals of Virginia, which convenes panels in several locations around the state: Alexandria, Fredericksburg, Norfolk, Chesapeake, Salem, and Lexington – in addition to Richmond, of course.