holding that misrepresentation exception did not apply to preclude consideration of medical malpractice claim based on allegation that plaintiffs consent to medical treatment was based on misrepresentation that optometrist was an ophthalmologist
How later courts described this case
- holding that misrepresentation exception did not apply to preclude consideration of medical malpractice claim based on allegation that plaintiffs consent to medical treatment was based on misrepresentation that optometrist was an ophthalmologist
- concluding that army doctor’s failure to follow existing protocol was not discretionary, whereas failure to implement additional safeguards was
- recognizing that a plaintiff may seek nominal damages through an FTCA claim for battery where authorized by state law
- noting the “general rule” that misrepresentation claims are confined to commercial settings and holding that the misrepresentation exception does not apply to medical malpractice claims
Written by the judges who cited it.
The opinion
BOGGS, Circuit Judge,
concurring in part and dissenting in part.
I concur in all of the thorough and well-written opinion for the court except for the final determination on causation. The opinion is correct that the district court erred in finding no waiver of government immunity and a lack of negligence in the actions of Eugene Channing in this case. However, the district court also made clear findings on the question of causation. The question of causation was hotly disputed and considerable evidence was taken on the issue. As the court’s opinion properly points out, the testimony of Dr. Abramson on this point *418 was extensive and persuasive {supra, pp. 406-408). The crucial question is: had Karen Keir been given non-negligent care, is there any significant chance that the tumor which caused her injuries could have been detected earlier than it was (thus perhaps allowing more efficacious treatment)? Plaintiffs presented several witnesses who supported this proposition, but Dr. Abram-son’s testimony to the contrary was clear and unequivocal.
In these circumstances, the district court was well within the boundaries of his role as finder of fact to accept Dr. Abramson’s testimony. This result is particularly justified by the fact that Dr. Abramson is clearly the leading American expert in the treatment of exactly the condition at issue here, while all of the other witnesses, on both sides, have at best modest experience.
It thus appears to me to be quibbling to hold that the district court did not appropriately consider the standard of “lost chance” causation which is established in New Jersey. The opinion well sets out the standard required: the negligent act must have increased the risk of harm and the increased risk must have been a substantial factor in producing the plaintiff’s actual condition.
Here, the government’s evidence, though Dr. Abramson’s testimony, was fully credible that the errors of Dr. Channing, grievous though they were, did not increase the risk of harm because the tumor would not have been discovered even with appropriate care.
The opinion faults the district court for simply using the word “remote” in describing this chance of discovering the tumor. It appears to me that the district court’s opinion, taken as a whole, indicates that “remote” indeed means a chance so small that it cannot properly be called an increased risk of harm. I believe it will be an exercise in redundancy to remand to the district court to have it tell us what is clearly implied, if not actually patent, in its opinion. I therefore respectfully dissent from the remand, while remaining in agreement with all of the principles of law set forth in the court’s opinion.