PRESENT:    All the Justices

RICHARD D. FIORUCCI, ET AL.
                                              OPINION BY
v.   Record No. 131869              JUSTICE ELIZABETH A. McCLANAHAN
                                           OCTOBER 31, 2014
STEPHEN CHINN

           FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                         James C. Clark, Judge

      In this medical malpractice action, Richard D. Fiorucci,

D.D.S. and Richard D. Fiorucci, D.D.S., Ltd. (collectively "Dr.

Fiorucci") appeal from the judgment of the circuit court

entered in accordance with a jury verdict rendered in favor of

Stephen Chinn.    Dr. Fiorucci contends that the circuit court

erred in excluding evidence of the risk of surgery discussions

between Dr. Fiorucci and Chinn.      We will affirm the judgment of

the circuit court.

                               I. BACKGROUND

      Chinn was referred by his dentist to Dr. Fiorucci, an oral

maxillofacial surgeon, for evaluation of three wisdom teeth,

all of which were fully impacted in the bone.     Dr. Fiorucci

determined that Chinn's wisdom teeth were decaying and

recommended extraction.    Dr. Fiorucci extracted Chinn's upper

left wisdom tooth but perforated the bone adjacent to the left

sinus leaving a large opening in the sinus.     He attempted the

extraction of Chinn's lower left wisdom tooth but encountered

severe bleeding and halted the surgery, leaving part of the
tooth and the root.       He did not attempt extraction of the third

tooth.       Following the surgery, Chinn experienced bleeding from

the nose, numbness in his left jaw, teeth, gum, lip, and chin,

as well as pain in his left sinus.       Although the symptoms

related to the extraction of the upper left wisdom tooth

resolved after several weeks, the symptoms related to the

attempted extraction of the lower left wisdom tooth did not

resolve, resulting in permanent numbness of Chinn's lower left

jaw area.1

        Chinn contended that Dr. Fiorucci was negligent in failing

to properly diagnose the condition of his wisdom teeth and in

recommending and performing the extractions.2      According to

expert testimony presented by Chinn at trial, Dr. Fiorucci

misdiagnosed Chinn's wisdom teeth as being decayed when in fact

they were in a benign resorption process, meaning they were in

the harmless process of being incorporated into the surrounding

bone.       Thus, according to Chinn's experts, Dr. Fiorucci

breached the applicable standard of care in misdiagnosing the



        1
       Expert testimony presented by Chinn established that the
inferior alveolar nerve was damaged during the extraction of
the lower left wisdom tooth. Although Chinn subsequently
underwent surgery by a different surgeon to remove the remnant
of this tooth and root, the numbness in his left jaw area did
not resolve.
        2
       Chinn did not allege that Dr. Fiorucci failed to inform
him of the risks of the extractions or that he was unaware of
any particular risks.
                                    2
condition of the teeth and proceeding to recommend and perform

unnecessary surgery.3

     Prior to trial, Chinn filed a motion in limine to exclude

two informed consent documents he signed and the related risk

of surgery discussions between Dr. Fiorucci and Chinn.     The

informed consent documents described the risks and potential

complications of the surgery, which included the risks of

injury to the nerve, opening of the sinus, and permanent

numbness.   The circuit court granted the motion without

prejudice to Dr. Fiorucci to raise the discussions at trial if

they became relevant.4   During trial, Dr. Fiorucci sought to

introduce the risk of surgery discussions, arguing that Chinn

placed the issue of informed consent at issue during voir dire

and through testimony of one of Chinn's experts.   The circuit

court ruled that the risk of surgery discussions were not

relevant and precluded their admission into evidence.




     3
       Chinn's experts also testified that Dr. Fiorucci breached
the applicable standard of care in other respects,
specifically, in proceeding with the extraction of the upper
left wisdom tooth despite the fact that the roots of the tooth
were fused to the bone; in proceeding with the extraction of
the lower left wisdom tooth despite its proximity to the
alveolar nerve canal; and in failing to make a prompt referral
to a neurosurgical specialist.
     4
       Judge Lisa B. Kemler presided over the hearing on the
motion in limine and entered the order granting the motion.
                                3
     The jury rendered a verdict for Chinn, which was confirmed

by the circuit court.

                           II.   ANALYSIS

     On appeal, Dr. Fiorucci argues that our decision in Wright

v. Kaye, 267 Va. 510, 529, 593 S.E.2d 307, 317 (2004), holding

that risk of surgery discussions were inadmissible in a medical

malpractice trial, does not apply because Chinn's claim was

based on pre-operative negligence.

     In Wright, we reversed the circuit court's denial of a

motion in limine to exclude discussions between the physician

and patient as to risk of injury where the patient claimed the

physician negligently performed a medical procedure.   We

explained that "evidence of information conveyed to [the

patient] concerning the risks of surgery in obtaining her

consent is neither relevant nor material to the issue of the

standard of care" in performing the surgery.   Id.   Recognizing

that the patient's awareness of the risks of surgery is not a

defense available to a physician against a claim of deviation

from the standard of care, we stated that while a patient may

consent to risks of surgery, a patient "does not consent to

negligence."   Id.   Thus, where lack of informed consent is not

at issue, "the admission of evidence concerning a plaintiff's

consent could only serve to confuse the jury because the jury

could conclude, contrary to the law and the evidence, that

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consent to the surgery was tantamount to consent to the injury

which resulted from that surgery."     Id.

     While the patient's claim in Wright related to negligent

performance of a medical procedure, our holding applies equally

to claims premised on pre-operative negligent treatment,

specifically including negligent diagnosis.    Chinn's awareness

of the risks of the extractions was not a defense against his

claim that Dr. Fiorucci deviated from the standard of care in

misdiagnosing the condition of Chinn's wisdom teeth or

negligently performing the surgery.5    Therefore, evidence of the

informed consent discussions between Dr. Fiorucci and Chinn

were "neither relevant nor material to the issue of the

standard of care."   Id.   Accordingly, the circuit court's

denial of Dr. Fiorucci's motion in limine to exclude such

discussions from the evidence at trial was not error.

     We further reject Dr. Fiorucci's contention that Chinn

placed the risk of surgery discussions in issue at trial.

During voir dire, Chinn's counsel asked potential jurors



     5
       Dr. Fiorucci's position at trial was that because Chinn
had the option to forego the extractions, his awareness of the
risks was relevant to his choice. This position, however, is
no different from asserting that Chinn consented to the risks
of surgery. Chinn's "choice" to proceed with Dr. Fiorucci's
recommendation to undergo surgery was based on Dr. Fiorucci's
misdiagnosis. While Chinn "may consent to risks, [he] does not
consent to [a negligent diagnosis]." Wright, 267 Va. at 529,
593 S.E.2d at 317.
                                5
whether "know[ing] that medical and dental procedures involve

risks and potential complications," led any juror to conclude

that "a dentist or doctor should not be held responsible for an

injury that results from his or her negligence."    Furthermore,

Dr. Gary Smagalski, one of Chinn's experts, referred to

discussions with his own patient regarding probable numbness in

the context of explaining why he did not refer his patient to a

neurosurgical specialist after the patient experienced numbness

following an extraction.6    Neither the statement made to the

jury during voir dire nor the testimony by Dr. Smagalski

regarding his discussion with his own patient implied or

suggested that Dr. Fiorucci failed to obtain Chinn's consent or

"otherwise place[d] in issue any failure on the part of [Dr.

Fiorucci] to obtain [Chinn's] informed consent."    Wright, 267

at 528, 593 S.E.2d at 317.    Thus, the circuit court did not err




     6
       The issue was actually raised by Dr. Fiorucci, whose
counsel asked Dr. Smagalski during his cross-examination to
admit that he did not refer the patient to a neurosurgical
specialist. Although Dr. Smagalski testified that it was a
completely different situation from that involving Chinn, he
was not asked to elaborate. On re-direct examination, Dr.
Smagalski explained that the situation was different in several
respects, including that his patient's tooth was badly infected
and there was no acute bleeding during the extraction, and,
consequently, no indication of nerve injury. Dr. Smagalski
also stated that the patient experienced only partial numbness,
went into the situation knowing the probability he would have
numbness, and "seemed pretty happy about the treatment."
                                 6
in excluding from evidence Dr. Fiorucci's risk of surgery

discussions with Chinn.

                          III.   CONCLUSION

     For the foregoing reasons, we will affirm the judgment of

the circuit court.

                                                       Affirmed.




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