Battery Claims Based on Lack of Informed Consent May Be Subject to Procedural Requirements of Medical Malpractice Claims

After undergoing a procedure to have an intrauterine device (IUD) implanted, a woman filed a lawsuit against her doctor for battery. The woman argued that her doctor failed to obtain her informed consent prior to the procedure, since she later discovered that the IUD she had received was not approved by the Federal Drug Administration (FDA). The IUD actually was on the approved FDA list for IUDs, but it did not meet the FDA’s requirements because it had been shipped to Canada rather than to the United States.

StethoscopeHowever, when the woman filed the complaint, she did not file a medical expert affidavit along with it, stating that the expert supported the allegations made in the lawsuit. In that state, plaintiffs who filed medical malpractice claims had to file a supporting medical expert affidavit with the complaint. The woman claimed that she did not need the medical expert affidavit because she was filing a claim for battery rather than for medical malpractice.

Yet, in a recent decision, the supreme court of that state found that she did need a medical expert affidavit even though she filed a “battery” claim. The court explained that battery claims against a medical provider based on a lack of informed consent should be subject to the same requirements as medical malpractice claims. Just as general medical malpractice claims do, the lawsuit required considering what the professional standard was in obtaining informed consent. For that reason, a medical expert affidavit was required.

Requirements for Medical Malpractice Claims in Virginia

Virginia law requires that a plaintiff in a medical malpractice claim have a certification from an expert witness. This certificate of merit is a written statement signed by an expert witness, stating that based upon the expert’s understanding of the facts, the expert finds that the defendant failed to conform to the standard of care and that the failure was a proximate cause of the injuries claimed.

The expert who completes the certification does not need to be able to testify at trial, but they may testify if the plaintiff wishes to present their testimony. However, there are exceptions to the rule. For example, a certificate of merit is not needed if the plaintiff believes in good faith that expert testimony in the medical malpractice claim is not required because the negligence is within the jury’s common knowledge and experience.

The defendant can also request that the plaintiff provide the defendant with a certification form, stating that the plaintiff did have the required expert certification when service was requested, or stating that the plaintiff did not require an expert. The court can also review the expert certification if necessary. A failure to obtain an expert certification, as required at the time that service was requested, can result in sanctions or the dismissal of the case. Other requirements for medical malpractice actions also may come up, depending on the nature of the case and where the case is filed.

Have You Been a Victim of Medical Malpractice?

If you believe that you or a loved one has been a victim of medical malpractice, you may be entitled to compensation. Medical malpractice claims are subject to special requirements, and it is essential that you meet all of the requirements in order to have your case heard in a timely manner. At Charles B. Roberts & Associates, our experienced Virginia, Maryland, and Washington, D.C. medical malpractice lawyers have handled all types of medical malpractice cases. Call 703-491-7070 today to arrange a free consultation to discuss your case with a personal injury attorney.

See More Blog Posts:

Manufacturer Escapes Liability in Product Liability Lawsuit Based on “Optional Equipment Doctrine”, Virginia Injury Lawyers Blog, August 18, 2016.

Court Determines Parking Lot Placed Across Dangerous Street May Give Rise to Landowner Liability, Virginia Injury Lawyers Blog, August 4, 2016.