Professor Evelyn Tenenbaum’s scholarship is helping Virginia state courts set a precedent in adopting a subjective causation standard.
Tenenbaum’s article, Revitalizing Informed Consent to Protect Patient Autonomy: An Appeal to Abandon Objective Causation was published in the Oklahoma Law Review Vol. 64, 2012.
It was aimed to convince states to adopt, or switch from, objective to subjective causation in applying the informed consent cause of action. At the time her article was written and until December 2022, only four states used subjective causation with the rest using an objective causation standard except Virginia, Kentucky, and Michigan, which didn’t have a ruling or statute either way, Tenenbaum said.
At the end of December 2022, an intermediate appellate court in Virginia decided – for the first time – that Virginia should be the fifth state to adopt subjective causation. Tenenbaum’s article was the only law review piece cited to support the court’s lengthy opinion and it used several of her original arguments in their decision.
Pergolizzi v. Bowman, 2022 Va. App. LEXIS 665., states that the court believes Ramona Bowman must retry her medical malpractice case against her doctor, Dr. Richard S. Pergolizzi Jr. based on a lack of informed consent.
The appeals court reversed the trial court’s original decision, saying it erred when it allowed Bowman to present an “impermissible informed consent” theory in regard to her botched brain surgery that left her with permanent impairment.
To bolster this opinion, the court quoted the following from Tenenbaum’s scholarship:
“[I]f the full disclosure would have led the plaintiff to refuse the operation, both the defendant’s breach and its causal role is clearly established, so the [reasonable person requirement in the objective causation] rule does not reflect the causation requirement but imposes some additional and most unusual obstacle.”
“It is incredibly exciting to see my scholarship being used by the courts for unprecedented changes to their laws, I am interested to follow the case and see how this will continue to unfold,” Tenenbaum said.