Present: All the Justices 

ROBERT COURTLAND MOATES 

OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR. 

v. Record No. 960933 

 January 10, 1997 

JOHN W. HYSLOP, ET AL. 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Timothy J. Hauler, Judge 

 In this medical malpractice action, the patient-plaintiff 

alleged that the physician-defendant (1) failed to inform him of 

the risks attendant to the medical procedure involved, and (2) 

failed to give him any discharge instructions. The issue in this 

appeal is whether the patient was required to present expert 

testimony to show whether and to what extent such information 

should have been disclosed by the physician to the patient. 

 I 

 Robert Courtland Moates filed a motion for judgment against 

John W. Hyslop, M.D., and others, seeking damages for injuries 

Moates allegedly sustained as a result of Hyslop's negligence. 

Moates claimed, inter alia, that Hyslop negligently failed to 

provide him with adequate preoperative and postoperative 

information and that such failure proximately caused his 

injuries. Hyslop filed a motion for summary judgment based upon 

responses to requests for admissions, and, by final order entered 

February 7, 1996, the trial court sustained the motion and 

granted summary judgment in favor of Hyslop. The trial court 

ruled that Moates was required to provide expert testimony in 

order to establish a prima facie case of negligence. We awarded 

Moates this appeal. 
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 II 

 The record contains a written statement of facts, filed 

pursuant to Rule 5:11(c). In 1991, Moates was having severe and 

recurrent pain in his chest, abdomen, and upper back. Moates 

went to his family doctor, Kevin A. Keller, M.D. Dr. Keller 

diagnosed the cause of Moates' problem as either an inflamed 

gallbladder or gallstones and made arrangements for Moates to be 

seen by Hyslop, a general surgeon affiliated with Surgical 

Associates of Richmond, Inc. 

 Hyslop examined Moates and discussed generally the risks 

inherent in the performance of a laparoscopic cholecystectomy, a 

less invasive surgical excision of the gallbladder. Hyslop, 

however, did not discuss with Moates the option of conventional 

surgery. Hyslop has admitted that at no time did he inform 

Moates that the carbon dioxide that would be used to inflate 

Moates' abdomen could leak into his scrotum causing great 

swelling or that a deep vein thrombosis could result from the 

insufflation. 

 On October 2, 1991, Hyslop performed a laparoscopic 

cholecystectomy on Moates at Johnston-Willis Hospital. During 

the surgery, carbon dioxide escaped into Moates' scrotum causing 

it to swell "to a huge and painful size."1

 1Moates conceded that he had no expert witness to show that 

the surgery was performed improperly. Therefore, his claim that 

Hyslop negligently performed the surgery was stricken and 

dismissed and is not a subject of this appeal. 
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 Moates claims that, before he was discharged from the 

hospital, neither he nor his wife was given any instructions by 

Hyslop regarding postoperative care. Hyslop has no recollection 

of what he told Moates, but he assumes that he gave Moates the 

usual discharge instructions. 

 Moates developed a deep vein thrombosis in his right leg. 

As a result, he is unable to perform his work as a gunsmith to 

the same extent that he could prior to the surgery because his 

work requires constant standing. 

 Dr. Keller has given his professional opinion that Moates' 

swollen scrotum and subsequent deep vein thrombosis were caused 

by the insufflation. 

 III 

 In granting summary judgment, the trial court relied upon 

Bly v. Rhoads, 216 Va. 645, 222 S.E.2d 783 (1976), an informed 

consent case. The physician-defendant in Bly had performed a 

hysterectomy on Bly. Following the surgery, Bly developed 

complications, and further hospitalization and surgery were 

required to correct her problems. 

 Bly sued her doctor, claiming, inter alia, that the doctor 

failed to give her sufficient information to make an informed 

choice about her treatment. Specifically, Bly claimed that the 

doctor failed to advise her that there were alternatives to the 

surgery and to explain to her the risks involved in a 

hysterectomy. Id. at 645-47, 222 S.E.2d at 784-85. 
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 In Bly, we adopted the rule that, in order for a patient to 

recover against the physician for failure to adequately inform 

the patient of the alternatives to and the risks of a particular 

treatment, the patient is required "to show by qualified medical 

experts whether and to what extent information should be 

disclosed." Id. at 650-51, 222 S.E.2d at 787. We also said, 

however, that we could "envision situations, albeit relatively 

infrequent, where from ordinary human knowledge and experience 

the necessity of disclosure is so obvious that expert testimony 

should not be required." Id. at 650, 222 S.E.2d at 787. Moates 

contends that this statement in Bly applies to the facts of his 

case. We do not agree. 

 With respect to the issue of informed consent, we think the 

facts in Bly and those in the present case are indistinguishable, 

and, therefore, the rule in Bly controls. Consequently, we 

conclude that the trial court correctly ruled that Moates was 

required to show by qualified medical experts whether and to what 

extent information should have been disclosed to him by Hyslop 

prior to the surgery. Moates did not have an expert in the field 

of laparoscopic cholecystectomy surgery, and, therefore, he could 

not pursue the claim. 

 IV 

 As previously stated, Moates also claimed that Hyslop 

negligently failed to give him any postoperative instructions. 

The trial court, relying on the Bly rationale, likewise granted 
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summary judgment in favor of Hyslop, ruling that Moates was 

required to establish Hyslop's negligence by qualified expert 

testimony.2

 The record before us suggests that Hyslop did not give 

Moates any postoperative instructions, and, following the 

operation, Moates developed a deep vein thrombosis in his right 

leg. Moates argues that "[i]t doesn't take an expert to 

establish that Moates should have been given discharge 

instructions." We agree that it should be obvious, even to a lay 

person, that a physician who has performed major surgery has a 

duty to give his patient postoperative instructions and that the 

physician's failure to give any instructions constitutes 

negligence per se. This, however, is only a part of the 

equation. Moates also has the burden of proving not only that 

Hyslop was negligent but also that Hyslop's negligence was the 

proximate cause of his injury. To establish causation, Moates 

was required to produce qualified expert testimony about what 

instructions should have been given to him and that Hyslop's 

failure to give such instructions proximately caused Moates' deep 

vein thrombosis. Consequently, we hold that the trial court did 

not err in granting summary judgment in favor of Hyslop on this 

 

 2The trial court established a cut off date for the parties 

to identify their expert witnesses. Moates named Dr. Keller as 

his expert, but the court, by an order entered January 5, 1996, 

ruled that Dr. Keller was not qualified to testify on "the 

standard of care issue applicable to a general surgeon." Moates 

did not request leave to identify another expert and has not 

appealed this ruling. 
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claim. 

 V 

 Accordingly, we will affirm the trial court's judgment. 

Affirmed.