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 
2

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. 
3

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. 
4

 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 
5

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. 
6

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." 
7

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.