Tashman v. Gibbs, Record No. 010028.
| Decision Date | 11 January 2002 |
| Docket Number | Record No. 010028. |
| Citation | 556 S.E.2d 772,263 Va. 65 |
| Court | Virginia Supreme Court |
| Parties | Hunter S. TASHMAN, M.D. v. Margaret GIBBS. |
Ann G. Scher (John M. Fitzgerald; Ronald P. Herbert; LeClair, Ryan, on briefs), Richmond, for appellant.
P. Clark Kattenburg; Laura J. Johnston (J. Charles Curran; Kidwell, Kent & Curran, on brief), Fairfax, for appellee.
Present: All the Justices.
Opinion by Justice BARBARA MILANO KEENAN.
In this appeal of a judgment in favor of a plaintiff in a medical malpractice action, we consider whether the trial court erred in permitting the plaintiff's "informed consent" claim to be considered by the jury.
We state the evidence in the light most favorable to the plaintiff, Margaret L. Gibbs, the prevailing party in the trial court. City of Bedford v. Zimmerman, 262 Va. 81, 83, 547 S.E.2d 211, 212 (2001). The evidence showed that Gibbs had received obstetrical and gynecological care from the defendant, Hunter S. Tashman, M.D., over a period of several years. Dr. Tashman had delivered both of Gibbs' children and had successfully performed bladder suspension surgery on her. After the delivery of her second child, Gibbs developed a severe uterine and vaginal prolapse, a condition in which the uterus collapses and protrudes through the vagina.
In August 1996, Dr. Tashman examined Gibbs and advised her that she needed a total hysterectomy and a sacrospinous ligament suspension procedure (sacrospinous procedure) to correct the prolapse. In a sacrospinous procedure, the prolapsed vagina is pulled back into position and secured with sutures fixed to the sacrospinous ligament.
In October 1996, Dr. Tashman performed a total hysterectomy and a sacrospinous procedure on Gibbs. When Gibbs awoke from surgery, she experienced severe pain that radiated from her right hip, through her right leg, and into her foot. Gibbs could not straighten her right leg or place any weight on it, and she experienced numbness in her vaginal area.
The next day, Dr. Tashman examined Gibbs and informed her that her pain might have "something to do with the sciatic nerve." After consulting with a neurologist, Dr. Tashman concluded that the sutures made during the sacrospinous procedure needed to be removed, Three days after the initial operation, Dr. Tashman performed a second surgery to remove the sutures.
After the second surgery, Gibbs was able to straighten her right leg and to stand upright. Although her level of pain was reduced, Gibbs still experienced "a great deal of pain." She ultimately was diagnosed with permanent injury to her sciatic and pudendal nerves. As a result of these nerve injuries, Gibbs has experienced recurring medical problems, including permanent pain and a burning sensation in her right leg and hip, numbness and loss of sensation in her right foot, and a loss of sexual function due to permanent genital numbness. Gibbs filed a motion for judgment against Dr. Tashman, alleging that he was negligent in the manner in which he performed the sacrospinous procedure and in failing to obtain her "informed consent" to that procedure. Gibbs alleged that Dr. Tashman failed to obtain her "informed consent" because he did not tell her that he lacked experience in performing the sacrospinous procedure, and did not advise her of the nature and risks of the operation, including the risk of nerve damage.
During trial of the case, Gibbs presented the expert testimony of Hilary J. Cholhan, M.D., a gynecologist and obstetrician who is an associate professor at the University of Rochester. When asked to define the term "informed consent," Dr. Cholhan stated:
[I]nformed consent is not just a piece of paper, it's a process, and it's a process of educating the patient so that the patient understands what conditions she has been diagnosed with and what treatment options are available to her, be they non-surgical or surgical. So it's not a piece of paper, it's essentially helping the patient understand his or her own condition so that she can make an informed consent based on the ability to determine what the advantages and disadvantages are of each treatment, and then the patient decides what he or she feels is appropriate as treatment.
Immediately thereafter, counsel for Gibbs asked Dr. Cholhan whether he had "an opinion to a reasonable degree of medical certainty as to what [the] standard of care [in] Virginia required in 1996 regarding informed consent." Dr. Cholhan replied, "That, I answered."
Dr. Cholhan stated that there were different surgical alternatives available to correct Gibbs' condition. He referred to the sacrospinous procedure performed on Gibbs as the "transvaginal approach." In an alternative procedure, a sacral colpopexy, which is often referred to as the "abdominal approach," the surgeon makes an incision through the abdomen and uses the lower part of the spine in the back of the abdominal cavity as an anchoring point to support the vagina.
Dr. Cholhan testified that Dr. Tashman deviated from the standard of care when he failed to inform Gibbs of the "abdominal approach" as an alternative to the sacrospinous procedure. Dr. Cholhan stated:
[T]he standard of care requires that all alternatives be discussed, and the abdominal approach was not discussed. Now, if Dr. Tashman if it's not within his surgical armamentarium to do that, then you need to explain that to the patient, that is not within my armamentarium, other people favor doing it this way, however, I do not do it this way for these reasons. That was not discussed.
Dr. Cholhan defined "armamentarium" as "nothing more than repertoire, within the operator's skill and experience and knowledge."
When asked whether he had an opinion within a reasonable degree of medical certainty whether Dr. Tashman breached the standard of care with respect to obtaining Gibbs'"informed consent," Dr. Cholhan replied:
[W]ith all the information that I have reviewed and that's been provided me, including Dr. Tashman's notes, I saw no evidence that any patient counseling occurred with respect to alternatives of treatment, advantages of one treatment over another, disadvantages, risk factors, or the like.
However, during cross-examination, Dr. Cholhan agreed that Dr. Tashman's only "shortcoming" concerning obtaining Gibbs' "informed consent" was his failure to explain to her the alternatives to the sacrospinous procedure. When asked whether the "abdominal approach" involved less potential risk than the "transvaginal approach," Dr. Cholhan responded that "[e]very procedure has inherent risks."
Gibbs testified that Dr. Tashman failed to inform her before the surgery that he had never performed a sacrospinous procedure as a "lead surgeon," and that she would not have consented to having him perform the surgery if she had been aware of his limited experience. Gibbs further testified that Dr. Tashman did not inform her of the possible risk of nerve damage from the sacrospinous procedure. According to Gibbs, Dr. Tashman only told her that the procedure could result in some blood loss and in vaginal dryness. With regard to blood loss, Gibbs also stated that Dr. Tashman assured her that "we won't need" the two pints of blood that he instructed her to "bank."
At the conclusion of Gibbs' evidence, Dr. Tashman moved to strike the "informed consent" claim from the negligence action, arguing that the claim was not supported by sufficient evidence. The trial court denied the motion.
Dr. Tashman testified concerning his experience with the sacrospinous procedure. He stated that he had performed two sacrospinous procedures under the guidance of more experienced surgeons. He explained that on one of these occasions, he served as the "lead surgeon" and performed about 90 percent of the surgery. Dr. Tashman further stated that although the operation on Gibbs was the first time he performed the sacrospinous procedure by himself, he had the proper training and skills to perform the procedure.
Dr. Tashman testified that he informed Gibbs of his experience with the sacrospinous procedure and presented her with three opdons concerning who would perform her surgery. He told her that he could refer her to a more experienced surgeon to perform the surgery, that he could perform the operation himself with the assistance of a more experienced surgeon, or that he could perform the procedure "solo for the first time." Dr. Tashman stated that Gibbs said that she preferred that he perform the surgery by himself because she was uncomfortable having "another surgeon in the room that she hasn't met yet."
Dr. Tashman also testified that he thought that "it crossed [his] mind to mention" to Gibbs the "abdominal approach" as an alternative surgical procedure, but he was unable to recall with certainty whether he had discussed this option with Gibbs. However, he stated that the "abdominal approach" would not have been appropriate for Gibbs because of a greater long-term risk of complications presented by that procedure.
Dr. Tashman also stated that he had informed Gibbs of the potential risks and complications of the sacrospinous procedure, including the risk of nerve damage. He testified that when he advised Gibbs and her husband of these facts, Gibbs acknowledged that she understood that the procedure would involve an additional level of risk.
Gibbs' husband, Raymond Dennis Gibbs, was called as a witness by Dr. Tashman, and testified that when he and his wife met with Dr. Tashman to discuss the surgery, "Dr. Tashman did not say anything at all about risk of injury to nerves in this procedure." Mr. Gibbs also testified that when he asked Dr. Tashman about the risks involved in the surgery, Dr. Tashman replied that the sacrospinous procedure was more complicated than the hysterectomy because, among other things, the surgical area contains "a lot of nerves." Mr. Gibbs stated that it was his understanding that Dr. Tashman "was just explaining the procedure" when he made mention of...
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