150 U.S. App. D.C. 263, 464 F.2d 772 (D.C. Cir. 1972)
Jerry Canterbury, a nineteen-year-old clerk-typist with the Federal Bureau of Investigation, began suffering severe back pain in December 1958.1 After medications from two general practitioners failed to relieve the pain between his shoulder blades, he consulted neurosurgeon Dr. William T. Spence.2 Dr. Spence examined Canterbury and recommended a myelogram at the Washington Hospital Center following inconclusive x-rays.3
Canterbury was admitted to the hospital on February 4, 1959.4 The myelogram disclosed a filling defect near the fourth thoracic vertebra, prompting Dr. Spence to advise a laminectomy for a suspected ruptured disc.5 Canterbury notified Dr. Spence of his mother's limited means in West Virginia.6 Dr. Spence telephoned her to explain the procedure as no more serious than any other operation.7 Mrs. Canterbury arrived after the surgery and signed a consent form authorizing the laminectomy and any necessary additional procedures.8
Dr. Spence performed the laminectomy on February 11, 1959.9 He discovered a swollen non-pulsating spinal cord, dilated veins, and absent epidural fat.10 The following day Canterbury fell from his hospital bed while voiding unattended after orders were changed to permit out-of-bed use.11 Paralysis from the waist down developed hours later, leading to an immediate second operation to relieve pressure on the spinal cord.12
Canterbury's condition improved modestly after the second surgery but he required additional procedures for bladder stones and ongoing urologic care.13 By the time of trial he walked with crutches, experienced bowel paralysis and urinary incontinence, and faced employment challenges due to his need for proximity to bathroom facilities.14 He filed his complaint on March 7, 1963, asserting claims against Dr. Spence for negligent surgery and failure to warn of paralysis risk and against the hospital for negligent post-operative monitoring.15
The district court directed verdicts for both defendants at the close of Canterbury's evidence in April 1968.16 Canterbury appealed the resulting judgment to the United States Court of Appeals for the District of Columbia Circuit, which reinstated the appeal after initially dismissing it for lack of finality and proceeded to review the directed verdicts.17
Whether the standard governing a physician's duty to disclose risks of proposed treatment is the custom of physicians in the community or the needs of a reasonable patient in the circumstances?18
The physician's duty to disclose is governed by the same legal principles applicable to others in comparable situations, with modifications only to the extent that medical judgment enters the picture.19 The standard measuring performance of that duty by physicians, as by others, is conduct which is reasonable under the circumstances.20 The test is what a reasonable person in the patient's position would have considered material to his decision rather than any professional custom.21
No. The court rejected the medical custom standard because it overlooks the patient's right of self-determination on therapy and because the decision to disclose is often a non-medical judgment outside the special medical standard.22 Dr. Spence's telephone conversation with Mrs. Canterbury described the laminectomy as no more serious than any other operation without mentioning paralysis risk.23 His trial testimony that he withheld the one percent risk to avoid deterring patients reflected his personal view of medical practice rather than any objective patient-centered assessment of materiality.24 The nondisclosure evidence therefore required jury resolution under the reasonable patient standard.25
The standard is the reasonable patient standard measured by the materiality of the risk to the decision.26
Whether the scope of required disclosure is determined by medical custom or by the materiality of risks to a reasonable patient's decision?27
The scope of the physician's communications to the patient must be measured by the patient's need for information material to the decision.28 All risks potentially affecting the decision must be unmasked, and the law itself sets the standard for adequate disclosure rather than any professional practice.29
No. The court held that any definition of scope in terms purely of a professional standard is at odds with the patient's prerogative to decide on projected therapy himself.30 When, at trial, it developed from Dr. Spence's testimony that paralysis can be expected in one percent of laminectomies, it became the jury's responsibility to decide whether that peril was of sufficient magnitude to bring the disclosure duty into play.31 Yet Dr. Spence provided no such information to either Canterbury or his mother before the February 11 operation.32
The scope is determined by the materiality of risks to a reasonable patient's decision.33
Whether causation in a claim for nondisclosure of risks is assessed subjectively based on the particular patient's testimony or objectively based on what a prudent person in the patient's position would have decided?34
Causation exists when disclosure of significant risks incidental to treatment would have resulted in a decision against it.35 The issue is resolved on an objective basis in terms of what a prudent person in the patient's position would have decided if suitably informed of all perils bearing significance.36
No. The court rejected a purely subjective test because it places the physician in jeopardy of the patient's hindsight and bitterness and calls for a speculative answer to a hypothetical question.37 The objective test asks whether adequate disclosure of the one percent paralysis risk could reasonably be expected to have caused a prudent person in Canterbury's position to decline the laminectomy.38 The evidence that he was never informed of that risk was sufficient to tender the causation issue to the jury.39
Causation is assessed objectively based on what a prudent person in the patient's position would have decided.40
Whether expert medical testimony is required to establish a prima facie case of inadequate disclosure or whether lay testimony suffices for failure to disclose, the patient's lack of knowledge, and adverse consequences?41
Experts are ordinarily indispensable to identify the risks of therapy and the consequences of leaving maladies untreated, but lay witness testimony can competently establish a physician's failure to disclose particular risk information, the patient's lack of knowledge of the risk, and the adverse consequences following the treatment.4243 Experts are unnecessary to a showing of the materiality of a risk to a patient's decision on treatment.44
No. The court held that many issues in nondisclosure cases do not reside peculiarly within the medical domain.45 Lay witness testimony can competently establish a physician's failure to disclose particular risk information, the patient's lack of knowledge of the risk, and the adverse consequences following the treatment. Canterbury's own testimony and his mother's testimony that Dr. Spence revealed nothing suggesting a hazard associated with the laminectomy made out a prima facie case of violation of the duty to disclose without any need for expert testimony on that element.46
Lay testimony suffices for failure to disclose, the patient's lack of knowledge, and adverse consequences.47
Whether the evidence presented by the patient was sufficient to require submission to the jury of claims for negligent performance of surgery, nondisclosure, and negligent post-operative care?48
A showing of negligence by each of two or more defendants with uncertainty as to which caused the harm does not defeat recovery but passes the burden to the tortfeasors for each to prove, if he can, that he did not cause the harm.49 The patient is entitled to a new trial when the evidence generates issues as to whether the physician performed the procedure negligently, whether the hospital rendered negligent post-operative care, and whether any such negligence was causally related to the patient's condition.50
Yes. The court held that the testimony of Canterbury and his mother that Dr. Spence did not reveal the risk of paralysis made out a prima facie case of violation of the duty to disclose which Dr. Spence's explanation did not negate as a matter of law.51 There was also testimony from which the jury could have found that the laminectomy was negligently performed by Dr. Spence, and that appellant's fall was the consequence of negligence on the part of the hospital. The record, moreover, contains evidence of sufficient quantity and quality to tender jury issues as to whether and to what extent any such negligence was causally related to appellant's post-laminectomy condition.
The evidence was sufficient to require submission to the jury on all three claims.52
Whether the statute of limitations bars the nondisclosure claim when characterized as negligence rather than battery?53
An unauthorized operation constitutes a battery. The interest in bodily integrity commands protection not only against an intentional invasion by an unauthorized operation but also against a negligent invasion by the physician's dereliction of the duty to adequately disclose.54 The nondisclosure claim is governed by the three-year period of limitation applicable to negligence actions.55
No. The court held that although an uninformed consent would support a battery claim subject to the one-year limitation, the patient had much more at stake in protection against negligent invasion of bodily integrity.56 Canterbury filed his complaint on March 7, 1963, roughly two years after attaining majority.57 The three-year negligence limitation period preserved the nondisclosure claim even though any pure battery claim would have been time-barred.58
The statute of limitations does not bar the nondisclosure claim when characterized as negligence.59