informed consent claim in Virginia

2024“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[.]” Pergolizzi v. Bowman, - 10 - 76 Va. App. 310 , 323 (2022) (quoting Allison v. Brown, 293 Va. 617, 628-29 (2017)).

2024“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[.]” Pergolizzi v. Bowman, 76 Va. App. 310 , 323 (2022) (quoting Allison v. Brown, 293 Va. 617, 628-29 (2017)).

2024“Virginia courts measure that standard of care by the ‘degree of skill and diligence exercised by a reasonably prudent practitioner in the same field of practice or specialty in Virginia.’” Id. at 324 (quoting Tashman v. Gibbs, 263 Va. 65, 73 (2002)).

2022Id. (quoting Tashman, 263 Va. at 76 ).

2017Tashman v. Gibbs , 263 Va. 65 , 73-74, 556 S.E.2d 772 , 777-78 (2002) ; see also Mayr , 293 Va. at 85 , 795 S.E.2d at 737 -38 .

2017Tashman v. Gibbs , 263 Va. 65 , 73-74, 556 S.E.2d 772 , 777-78 (2002) ; see also Mayr , 293 Va. at 85 , 795 S.E.2d at 737 -38 .

2022Hosp., 105 N.E. 92, 93 (N.Y. 1914) (Cardozo, J.).

2022Ct. App. Div. 2004) (holding that a physician does not have a duty to inform a patient of a diagnostic test for a condition the physician does not believe exists because the physician improperly diagnosed the patient); Pratt v. Univ. of Minn. Affiliated Hosps., 414 N.W.2d 399, 402 (Minn. 1987) (finding that a physician does not have a duty to explain to the patient that the physician’s diagnosis in “cases involving genetic - 12 - brought under a traditional negligence theory of medical malpractice rather than an informed consent claim.7 For a time, the Wisconsin Supreme Court was the only cour

1976In Hunter v. Burroughs, 123 Va. 113, 133-34 , 96 S.E. 360, 366-67 (1918), we recognized that “it is the duty of a physician in the exercise of ordinary care to warn a patient of possible bad consequences of using a remedy” but that the failure to warn “is not per se an act of negligence.” Thus, while the law imposes a general duty to warn, a claimant in a malpractice action based upon negligence in failing to warn must prove the existence and extent of the duty in his particular case by a preponderance of evidence.

1976In Hunter v. Burroughs, 123 Va. 113, 133-34 , 96 S.E. 360, 366-67 (1918), we recognized that “it is the duty of a physician in the exercise of ordinary care to warn a patient of possible bad consequences of using a remedy” but that the failure to warn “is not per se an act of negligence.” Thus, while the law imposes a general duty to warn, a claimant in a malpractice action based upon negligence in failing to warn must prove the existence and extent of the duty in his particular case by a preponderance of evidence.