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Law School Case Brief

Rizzo v. Schiller - 248 Va. 155, 445 S.E.2d 153 (1994)


The duty imposed upon a physician to obtain a patient's informed consent requires more than simply securing the patient's signature on a generalized consent form. The law requires informed consent, not mere consent, and the failure to obtain informed consent is tantamount to no consent. It is the duty of a physician in the exercise of ordinary care to warn a patient of the danger of possible bad consequences of using a remedy, but that the physician's failure to warn is not per se an act of negligence. Rather, the physician owes a duty to make a reasonable disclosure to the patient of all significant facts under the circumstances. This duty is limited to those disclosures that a reasonable medical practitioner would provide under the same or similar circumstances. In most cases, expert testimony is necessary to establish those instances where the duty to disclose arises and what disclosures a reasonable medical practitioner would have made under the same or similar circumstances. 


Michael Sean Rizzo, Jr., through his mother, Pamela Rizzo, filed an action against Dr. Schiller, an obstetrician and gynecologist, for breaching the standard of care owed to them when he assisted Ms. Rizzo with the delivery of Michael. The plaintiffs alleged that Dr. Schiller was negligent in the use of obstetrical forceps during the delivery, which resulted in Michael's development of cerebral palsy and that he failed to obtain Ms. Rizzo's informed consent to use the forceps. The trial court granted Dr. Schiller's motion to strike the plaintiffs' informed consent claim. The case proceeded to the jury on the theory that Dr. Schiller was negligent in the use of the obstetrical forceps. The jury returned a verdict in favor of Dr. Schiller. On appeal, the plaintiffs contended the trial court erred by striking the informed consent claim. The doctor contended that plaintiffs' evidence failed to establish a prima facie case and that plaintiffs failed to present evidence of proximate causation. The doctor also contended that the mother was allowed to participate in the decision to use forceps because she signed a consent form, which did not mention forceps use. 


Did the court properly strike the informed consent claim?




The case was reversed and remanded for a new trial on the informed consent claim. The court reversed because there was expert testimony that the standard of care required the mother's participation in the decision and the generic form said nothing of specific procedures or risks. 

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