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Holley v. Pambianco6/9/2005
This appeal in a medical malpractice case concerns the admissibility of evidence tending to prove the inherent risks of the treatment that led to the plaintiff's injury.
Facts
On November 28, 2000, Danny R. Holley was admitted to Martha Jefferson Hospital in Charlottesville as an outpatient to undergo a scheduled colonoscopy to be performed by Daniel J. Pambianco, M.D., a gastroenterologist. During the colonoscopic examination, Dr. Pambianco discovered two sessile polyps in the colon, each about one centimeter in diameter. He removed both of them by a "hot biopsy forcep " technique in which forceps, threaded through the colonoscope tube, carry an electric current to the site in order to cauterize the tissue.
Holley was driven home by his wife after the procedure and went to bed. That night he was unable to eat or drink and suffered abdominal distension and soreness. The next day, he called Dr. Pambianco's office, describing his symptoms. A nurse told him that his symptoms were normal and that he should walk. Later that day, the nurse called him and advised him to keep walking, to drink hot tea and to take a prescription that she would call in to his pharmacy. His symptoms grew worse and on December 3, five days after the operation, he called Dr. Pambianco's office again, describing his condition. This time, Dr. Byrd S. Leavell, a colleague of Dr. Pambianco, returned his call and told him to report immediately to the emergency room at the hospital. Upon examination, he was found to have a perforated colon leaking into the abdominal cavity, causing peritonitis. He was given a colostomy and spent ten days in the hospital, seven of them in intensive care. He was released with a colostomy bag attached to his side. Several months later, he underwent a interior walls. The instrument also contains a channel through which surgical instruments may be introduced into the colon. "Polyps," sometimes found attached to the interior colon walls, are abnormal growths protruding inward. Because they may be or become cancerous, they are removed, if third operation to close the colostomy and restore the continuity of the colon.
Proceedings
Holley brought this medical malpractice action against Dr. Pambianco and the medical group of which he was a member. The case was tried before a jury and resulted in a verdict for the defendants. We awarded Holley an appeal limited to two issues: (1) Whether the trial court erred by admitting evidence of the risks of perforation of the colon during a colonoscopy and polypectomy and permitting defense counsel to argue to the jury, in a case in which informed consent was not in issue, that such risks were normal, and (2) whether the trial court erred by refusing to instruct the jury that Dr. Pambianco's failure to give the plaintiff discharge instructions constituted negligence per se.
In pretrial proceedings, the parties agreed that no evidence or argument would be permitted with regard to a lack of informed consent and the court entered an order to that effect. Holley filed a motion in limine, requesting the court to preclude the admission of any evidence concerning the known risks of colonoscopy and polypectomy, any discussion of such risks with him, and whether he had any awareness of the risks. Holley relied on our recent decision in Wright v. Kaye, 267 Va. 510, 593 S.E.2d 307 (2004). There, we held that where a lack of informed consent is not in issue in a medical malpractice case, evidence of information given to the patient concerning the risks of surgery is irrelevant to the sole issue in the case: Whether the physician departed from the standard of care. We observed that such evidence "could only serve to c
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