Last month, a Virginia appellate court issued a written opinion in a personal injury case illustrating how diligent and precise Virginia medical malpractice plaintiffs must be when filing their complaint. The case required the court to determine if the jury’s verdict in favor of the plaintiff should be upheld when the trial judge instructed the jury on medical battery despite the fact that the plaintiff’s complaint did not mention medical battery. Ultimately, the court concluded that the plaintiff should have added language to include a medical battery claim, and her failure to do so prevented the trial judge from instructing the jury on the issue.
The Facts of the Case
The plaintiff was a breast cancer survivor who required follow-up surgery. The plaintiff claimed that she had originally discussed having surgery on both breasts but ultimately decided to only proceed with surgery on her right breast.
The defendant’s version of the events leading up to the surgery were different from the plaintiff’s version. The defendant claimed that the plaintiff never indicated to him that she wished to have him operate on only her right breast. Needless to say, the defendant performed surgery on both breasts, and the plaintiff suffered serious complications related to her left breast.