reaching a decision on the issue left open in Downer, and holding that "the scope of a physician's duty to disclose is measured by those communications a reasonable medical practitioner in that branch of medicine would make under the same or similar circumstances"
How later courts described this case
- reaching a decision on the issue left open in Downer, and holding that "the scope of a physician's duty to disclose is measured by those communications a reasonable medical practitioner in that branch of medicine would make under the same or similar circumstances"
- "the scope of a physician's duty to disclose is measured by those communications a reasonable medical practitioner in that branch of medicine would make under the same or similar circumstances and that the plaintiff must ordinarily establish this standard by expe1t medical evidence."
- operation at immediately adjoining lumbar interspace sounded in negligence rather than in battery
- agreeing with trial court’s instruction to the jury to employ the objective standard in considering proximate cause
Written by the judges who cited it.
The opinion
ROBERTS, Justice,
concurring.
I agree with the disposition of each of the issues discussed in the court’s opinion. On the question of the voir dire examination, I express my views separately because of an important difference in emphasis. That the conduct of voir dire rests in the sound discretion of the presiding justice means that he may elect any of several options without committing error. I would not find error in the justice’s failure to remove excused jurors from the courtroom where some prejudice may incidentally result. In this instance, however, the danger of prejudice was eminently foreseeable.
The record indicates that counsel had previously discussed their requested voir dire questions with the presiding justice. Plaintiffs’ request for removal of the excused jurors was made in the light of those questions and the apparent potential that they would elicit prejudicial responses. Thus plaintiffs said, “If they [excused jurors] remain and are asked the remaining questions we are running a very substantial risk of a mistrial.” Defense counsel objected to plaintiffs’ request even though he was in a position to know the nature of the responses those very jurors might give. If he did know, he was under no duty to his client to seek an unfair tactical advantage.
For the reason that a sound exercise of discretion requires that foreseeable prejudice be avoided, I concur in vacating the judgment.