# Petition for Writ of Certiorari — Spence v. Canterbury

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 1064

## Text

OCT 24 1972

MICHAEL RODS, JR.,CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1972

No. @ 2-629

WILLIAM THORNTON SPENCE, M.D.
and
THE WASHINGTON HOSPITAL CENTER,
a Body Corporate,
Petitioners and
Defendants Below

Vv

JERRY W. CANTERBURY, _

Respondent and
Plaintiff Below.

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

JOHN L. LASKEY
1828 L Street, N.W.
Washington, D.C. 20036

WALTER J. MURPHY, Jr.
1511 K Street, N.W.
Washington, D.C. 20005

Attorneys for Petitioners

October 24, 1972

Washington. Ce THIEL PRESS e (202) 393.0625 2

(i)
TABLE OF CONTENTS

Page
LIST OF AUTHORITIES CITED ........... BS re i
_ | Se ee 2
cae keene baer eh ed KK She RS OO 2
QUESTION PRESENTED FOR REVIEW ............ 2
Te de ae a6 aw wee e OOo a 3
mes GP Tie CAR nw wn ccc ccc e scenes 3
REASONS FOR GRANTING WRIT ................ 6
eee eae le eas Wn le ee eee a 12
Appendices:
A. Opinion of the United States Court of Appeals
for the District of Columbia Circuit .............. la
B. Order Denying Petition for Rehearing ............ 45a
LIST OF AUTHORITIES CITED
Cases:
American Marietta Co. v. Griffin, 203 A.2d 710 (D.C.
TS AG aan e ese nee aD we ew oe 10
Bradford v. Mutual Benefit Health and Accident
Association, 159 A.2d 870 (D.C. App. 1960) ......... 10
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) ....... 7
Foster v. United States, 290 A.2d 176 (D.C. App.
ND aaah banister at ack oe Sele ah sae Ws A Ge aoa Ok we 7
Glassman Construction Co. v. Fidelity and Casualty
Co. of N.Y., 123 U.S. App. D.C. 1, 356 F.2d 340
Re ate ek Sala ak ok a mae yw bid aw we 9
Graves v. District of Columbia, 287 A.2d 524 (D.C.
nee re a a a es A a 7
Green v. Lafoon, 173 A.2d 212 (D.C. App. 1961) ........ 10

Guaranty Trust Co. v. York, 326 U.S. 99 (1945) ......... 1]

(ii)

Hanna v. Plumer, 380 U.S. 460 (1965)
Harrington v. Alston, 267 F.Supp. 505 (D.D.C.

ui) PETER See rere 10
Kasmer v. Sternal, 83 App. D.C. 50, 165 F.2d 624

eer 2 ee ewe eae) ere iy ae ne 10
Kosberg v. Washington Hospital Center, Inc., 129

U.S. App. D.C. 322, 394 F.2d 947 (1968) ........... 10
M.A.P. v. Ryan, 285 A.2d 310(D.C. App. 1971) ......... 6,7
Morse v. Moretti, 131 U.S. App. D.C. 158, 403 F.2d

ra ene ee eee 2 rr ee 10
Nolan v. Transocean Air Lines, 365 U.S. 293 (1961) ...... 9
Quick v. Thurston, 110 U.S. App. D.C. 169, 290 F.2d

Gi et esse eRe eda ee Ly 10
Ruhlin v. New York Life Insurance Co., 304 U.S. 202

DE Vids Ge-wee ee eb ae eae ee WEE week 7
Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S.

NE ch ee Oho aaeld adte Won ee kas waweks 10
Stivers v. George Washington University, 116 U.S.

App. D.C. 29, 320 F.2d 751 (1963) ............... 8

United States v. Thompson, 452 F.2d 1333 (D.C. Cir.
1971), cert. denied, _ US.__—, 91: S.Ct. 125

Ce as EEL a eee a esa Nee Oh eae uae 6
Webster v. Offshore Food Service, Inc., 434 F.2d

ee a as ea goa a A A 10
Statutes:
Rs ROUTE, oc ko ener ese ee ve wee ueeces 6
11 D.C. Code § 102 (1967 ed., Supp. V 1972) ........... 6

District of Columbia Court Reform and Criminal
Procedure Act of 1970, Pub. L. 91-358, 84 Stat.
SONNE Gk nc bewcgaccdea ceva wee ene shear 6

(iii)

Legislative History:
5, Rep. No. 405, 91st Cong., Ist Sess., (| erage a
HR. Rep. No. 907, 91st Cong., 2d Sess., 23 (1970)

Treatises and Anno tations:

| Barron & Holtzoff, Federal Practice and Procedure
§8 (Wright ed. 1960, Supp. 1964)

Annot., Proximate Cause—Malpractice Actions, 13
A.L.R.2d p. 11 (1950)

oeeoeeeoenaneaeseenees © 6 @ 6

BS er Fe q

RM ON, See VET o ea tie aaa ial

IN THE

Supreme Court of the United States

OCTOBER TERM, 1972
No.

WILLIAM THORNTON SPENCE, M.D.
and
THE WASHINGTON HOSPITAL CENTER,
a Body Corporate,
Petitioners and
Defendants Below

Vv.

JERRY W. CANTERBURY,

Respondent and
Plaintiff Below.

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

The Petitioners, William Thornton Spence, M.D., and the
Washington Hospital Center, a body corporate, respect-
fully pray that a writ of certiorari issue to review the
judgment and opinion of the United States Court of
Appeals for the District of Columbia Circuit, entered in
this cause on May 19, 1972.

$
Ses SERRE |

ato « . dius ~ . ten
Pe i ee ?

2

OPINION BELOW

The opinion of the United States Court of Appeals for
the District of Columbia Circuit, which is hereinafter set

forth as “Appendix A,” pages la-44a, is unreported at
the present.

JURISDICTION

The opinion and judgment of the United States Court
of Appeals for the District of Columbia Circuit were filed
and entered on May 19, 1972. A Petition for Rehearing,
filed by the petitioners in the United States Court of
Appeals for the District of Columbia Circuit on June 14,
1972, was denied by order of said Court entered on July
26, 1972, a copy of which is hereinafter set forth as
““Appendix B,” page 45a.

This Petition for Writ of Certiorari was filed within
ninety (90) days from the day on which the order
denying the Petition for Rehearing was entered.

The jurisdiction of this Court is invoked under 28
U.S.C. Section 1254(1).

QUESTION PRESENTED FOR REVIEW

Is the United States Court of Appeals for the District
of Columbia Circuit required, since passage by the United
States Congress of the District of Columbia Court
Reform and Criminal Procedure Act of 1970, and in light
of this Court’s decisions in Erie Railroad Co. y.
Tompkins, 304 U.S. 64 (1938), and its progeny, to
follow prior decisions of the highest court of the District
of Columbia in a matter of local law, and, in the absence
of definitive authority, to attempt to ascertain the
probable position of the District of Columbia Court of
Appeals in the resolution of such an issue?

‘ _— ee eememens eS ea ee Rese ll « Ra? ei as

3

STATUTES INVOLVED

1. Title 11, Section 102 of the District of Columbia
Code (1967 ed., Supp. V 1972), effective February 1,
1971, provides:

“The highest court of the District of Columbia is the

District of Columbia Court of Appeals. Final
judgments and decrees of the District of Columbia
Court of Appeals are reviewable by the Supreme
Court of the United States in accordance with
section 1257 of Title 28, United States Code.” (July
29, 1970, Pub. L. 91-358, §111, Title 1, 84 Stat.
475).

2. Title 28, Section 2113 of the United States Code,
effective February 1, 1971, provides:

“For purposes of this chapter, the terms ‘state court’,
‘state courts’, and ‘highest court of a state’ include
the District of Columbia Court of Appeals.”” Added
Pub. L. 91-358, Title I, §172(a)(2)(A), July 29,
1970, 84 Stat. 590.

STATEMENT OF THE CASE

On February 4, 1959, the plaintiif-respondent, Jerry
Canterbury, resided in the District of Columbia, where he
had been employed for approximately one year as a
clerk-typist by the Federal Bureau of Investigation. He
was at that time nineteen years of age, having been born
on March 12, 1939. Mr. Canterbury’s father was dead,
and his nearest living relative was his mother, Martha
Canterbury, who lived in Cyclone, West Virginia.

In the fall of 1958, Mr. Canterbury had begun to have
some health problems. Having received unsatisfactory
treatment from two doctors, he sought the aid of a
neurosurgeon, Dr. William Thornton Spence, defendant-
petitioner herein.

a

4

After a neurological examination, and with the consent
of the patient and his mother, Dr. Spence performed ,
myelogram on February 4, 1959, in order to ascertain the
causes of the pain. The test revealed a “filling defect” in
the spinal column at the level of the fourth thoracic
vertebra. Mr. Canterbury was informed of the results and
told that his condition was possibly caused by a ruptured
vertebra and would require an operation.

Mrs. Canterbury was told by Dr. Spence that the
operation was no more serious than any other and she
consented to it. The surgery was performed at the
Washington Hospital Center on February 10, 1959.
During the course of the operation, Dr. Spence found a
swollen, non-pulsating spinal cord. He attempted to
relieve the pressure on the swollen cord by splitting the
dura and making a flap in the area of the swelling.

Post-operatively, Mr. Canterbury did well until
February 12, 1959. In the early morning hours of that
day, the patient sustained a fall while getting out of bed.
No apparent injury was found by the house physician
who examined him thereafter.

Paralysis developed later the same day. Dr. Spence
performed two other operations upon the patient, one
exploratory and one involving a spinal fluid cyst, but of
these procedures no complaint has been made. The
complete paralysis of the lower extremities that Mr.
Canterbury had developed subsided, but he was left with
substantial physical defects.

Mr. Canterbury, alleging negligence, brought suit
against Dr. Spence and the Washington Hospital Center in
the United States District Court for the District of
Columbia on March 7, 1963. Jurisdiction of the district
court was invoked under Title 11, Section 306 of the
District of Columbia Code (1961 ed.).

a OE LOL PO OOO, AC I, A CE Bo Oy tet ee |
.

b)

At trial, which commenced on April 10, 1968, the
only evidence offered concerning the cause of Mr.
Canterbury's physical difficulties prior to and following
the operation of February 10, 1959, was the testimony
of one of the defendants. Dr. Spence, who had been
called as an adverse witness, stated that Mr. Canterbury's
present condition was the result of the cisease process
itself and had not been caused by any treatment
administered by himself or the doctors previously
consulted, or by the fall sustained after the operation of
February 10, 1959.
At the conclusion of the plaintiff's evidence, both
defendants moved for a directed verdict on the grounds
that the claim for unauthorized operation was barred by
the one-year statute of limitations applicable to actions

for battery, that verbal consent to the treatment had
been proved by the testimony and that the plaintiff had
not carried his burden of proof either as to negligence or
causation. The trial judge granted the motions of both
defendants on April 18, 1968.

On Appeal, the United States Court of Appeals for the
District of Columbia Circuit reversed the ruling of the
trial court, and remanded the case for a new trial. The
Court of Appeals held, in essence, that it was for the jury,
equipped with an objective standard of reasonableness, to
decide whether Dr. Spence had a duty to disclose the
possible consequences of such an operation and that,
despite the absence of medical testimony in plaintiff's
favor concerning the cause of his condition, a jury could
determine causation from the facts presented. (See
Appendix A.)

© 0 Fy Teer rrr We

The plaintiff's Petition for Rehearing was denied by
the United States Court of Appeals for the District of
Columbia Circuit by an order entered July 26, 1972. (See
Appendix B.)

. Ne Ee PT Be em wnat 48 oo + ernest gy
.

6

REASONS FOR GRANTING WRIT

The decision below, insofar as it failed to consider
established precedent in the District of Columbia, was
rendered in derogation of statutes wherein the District of
Columbia Court of Appeals is designated the supreme
arbiter of local law in its jurisdiction.

The intent of Congress, in the District of Columbia
Court Reform and Criminal Procedure Act of 1970, Pub.
L. 91-358, 84 Stat. 475 (1970), to create a dual court
system similar to the state-federal system existing in the
several States is clear and unambiguous. S. Rep. No. 405,
Dist Cong., Ist Sess. at 5 (1969); H.R. Rep. No. 907,
9ist Cong., 2d Sess. at 23 (1970). Jurisdiction over
“local” matters was to be vested in a local court system,
consisting of the Superior Court of the District of
Columbia, a trial court of general jurisdiction, and the
District of Columbia Court of Appeals, an appellate court
with jurisdiction to review judgments of the Superior
Court, which was designated the “highest court of the
District of Columbia.” 28 U.S.C. §2113 (1970): 11 D.C
Code §102 (1967 ed., Supp. V 1972). It follows that
decisions of the United States Court of Appeals for the
District of Columbia Circuit, in matters of local law.
Should be formulated in line with the same policies
governing all other federal circuit courts.

This dichotomy in the present structure of the District
of Columbia's judicial system has been recognized by the
courts themselves. United States v. Thompson. 452 F.2d
1333, 1342 (D.C. Cir. 1971), cert. denied, US. _,
92 S.Ct. 1251 (1972): M.A.P. v. Ryan, 285 A.2d 310,
312-13 (D.C. App. 1971). The District of Columbia
Court of Appeals has expressly stated that it would be
bound by stare decisis as to decisions of the United States
Court of Appeals for the District of Columbia Circuit
rendered @i February |, 1971. and that it would chart

7

the path of local law after this date. M.A.P. v. Ryan, 285
A2d 310, 312 (D.C. App. 1971). See also Foster v.
United States, 290 A.2d 176, 177 (D.C. App. 1972);
Graves v. District of Columbia, 287 A.2d 524 (D.C. App.
1972).

In the instant case, the United States Court of Appeals
for the District of Columbia Circuit decided that it
should resolve two crucial matters of local law—the
doctrine of informed consent and the necessity for expert
testimony as to causation in medical malpractice
cases—against the weight of authority and without
deference to District of Columbia case law.

If the Circuit Court of Appeals has duly recognized its
new role in the District of Columbia court system, it has
failed, we submit, to adhere to the pronouncement of this
Court that ““[t} here is no federal general common law.”
Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938).

There have been no deviations from the basic holding
of Erie, supra, that where a circuit court of appeals, in
reviewing a decision of a federal district court, rules on
the erroneous presumption that the question is one upon
which the federal courts are free to exercise an
independent judgment as to what the law is, and that it is
not necessary to consult local law on the matter, that
court will be reversed. Ruhlin v. New York Life Insurance
Co., 304 U.S. 202 (1938). This Court, in the present case,
is not faced with the difficult problem of the correct
formulation of a test in determining the appropriate rule
of law. See Hanna v. Plumer, 380 U.S. 460, 475 (1965)
(Harlan, J., concurring). The question for consideration is
whether the Circuit Court of Appeals, in adopting new
legal standards for medical malpractice litigation, has
misconstrued its role.

i

‘ mot ae ain ° wah
oO cA PRAT Reet? te Ce ante

8

The Court below dwelt considerably upon the issue of
informed consent. Although it was undisputed at trial
that consent had been given to the Operation, the
question posed was whether a jury could have reasonably
found that Dr. Spence had violated a duty to inform his
patient of the risks involved and that this breach was
causally connected to the plaintiff’s injuries. Rejecting
the standard adopted in the majority of American
jurisdictions (Appendix A, page 17a), the Circuit Court
of Appeals decided that a physician’s duty to disclose is
not dependent upon the professional custom in the
community, but that a “reasonable man” standard should
- govern, both as to disclosure and causality. Not only is
such a rule contrary to the eminent weight of authority,
but it is apparently in conflict with prior law in the
District of Columbia. The Circuit Court of Appeals
recognized that there was “no precedent of our own”
directly on point (see Appendix A, page 9a), and
distinguished its opinion in Stivers v. George Washington
University, 116 U.S. App. D.C. 29, 320 F.2475] (1963),
as neither “approving or disapproving the handling of the
risk-nondisclosure issue.” In Stivers, however, the district
court had instructed the jury on the disclosure issue in
accordance with the “majority” view (i.e., the profes-
sional standard in the community). The obvious
agreement by the Circuit Court of Appeals in Stivers as to
the correctness of the charge, despite the absence of a
ruling on this point, is certainly evidence of the status of
the law in the District of Columbia in 1963, and is
inconsistent with that Court’s position in the present
case.

This Court has admonished the federal courts to avoid
attempting to decide an issue in line with their own
beliefs, but rather to try to determine how the local
courts would decide the matter. This endeavor should

include an examination of the considered dicta of the
highest court of the jurisdiction. Nolan v. Transocean Air
Lines, 365 U.S. 293 (1961). The United States Court of
Appeals for the District of Columbia has also recognized
certain guidelines for federal courts in the absence of
definitive local authority. In Glassman Construction Co.
y. Fidelity and Casualty Co. of N_Y., 123 U.S. App. D.C.
1, 356 F.2d 340 (1966), the Court stated that the duty -
of the federal circuit court, in the absence of state
precedent, was to predict the position of the court of last
resort were the problem presented to it for resolution,
and quoted with approval the following:

-~~Om™“->X . enemas . ee |
:

i

t

“‘In ascertaining what the state law is, the federal
court must make use of all available data. Thus, in
the absence of state decisions in point the court may
look to the Restatement of the Law, to treatises and
law review writing, and may, where appropriate,
assume that the state will follow the majority rule.’
| Barron & Holtzoff, Federal Practice and
Procedure, §8 (Wright ed. 1960, Supp. 1964).”

In the instant case, the Circuit Court of Appeals did
not indicate that any effort was made to ascertain the
probable position of the District of Columbia Court of
Appeals. Indeed, it clearly announced that it would not
follow the majority or even the minority rule. See
Appendix A, page 23a.

The decision of the court below, that expert testimony
is not required to establish causation in medical
malpractice cases, is clearly in conflict with prior District
of Columbia case law. Two points must be made. The
first is that the present case involved complex medical
matters, the technical nature of which required special
scientific training to elucidate, and thus belongs to that
group of decisions wherein it has been held that there

ade

¥
:
%

10

must be expert testimony to support the element of
causation. Annot., Proximate Cause—Malpractice
Actions, 13 A.L.R.2d 11, 22 (1950). The rule in the
District of Columbia has always been that in such Cases
the jury may not speculate. Kasmer v. Sternal, 83 App.
D.C. 50, 52, 165 F.2d 624, 626 (1948). See also Morse y,
Moretti, 131 U.S. App. D.C. 158, 403 F.2d 564 (1968).
Quick v. Thurston, 110 U.S. App. D.C. 169, 290 F.24 360
(1961); Harrington v. Alston, 267 F. Supp. 505 (D.D.C.
1967); American Marietta Co. v. Griffin, 203 A.2d 710 OC.
App. 1964); Green v. Lafoon, 173 A.2d 212 (D.C. App.
1961); Bradford v. Mutual Benefit Health and Accident
Association, 159 A.2d 870 (D.C. App. 1960). Secondly,
the instant case is not one wherein there was adduced
expert testimony of such a character that a jury could
have drawn therefrom a reasonable conclusion in the
plaintiff's favor. E.g., Kosberg v. Washington Hospital
Center, Inc., 129 U.S. App. D.C. 322, 325, 394 F.24 947,
950 (1968). In a similar vein, reliance by the Circuit
Court of Appeals upon this Court’s opinion in Sentilles y.
Inter-Caribbean Shipping Corp., 361 U.S. 107 (1959), was
misplaced. That case, it is submitted, does not stand for
the proposition that expert testimony is unnecessary in
order to establish causation in medical malpractice
litigation. On the contrary, there was ample expert
testimony in Sentilles upon which a verdict for the
plaintiff was reasonably based. In the instant case, the
only testimony concerning causation was given by Dr.
Spence, who stated that there existed the remote
possibility of paralysis following such treatment, but that
the plaintiff's disabilities did mot arise from the
defendants’ acts, and in fact resulted from the plaintiff's
prior diseased condition. Sentilles, therefore, is inap-
_ posite. Webster v. Offshore Food Service, Inc., 434 F.2d

ee i ee ee

—

1]

1191, 1194 (Sth Cir. 1970). The question does not
involve the credibility or reliability of Dr. Spence. The
point is that no competent testimony was produced
which would reasonably establish a causal link between ‘
the defendants’ acts and the plaintiff’s condition.’

The Circuit Court of Appeals has created, in its i
opinion, new legal standards which are apparently meant :
to apply in the District of Columbia federal courts. It is *
clear that the District of Columbia Court of Appeals is

not bound by the decision. Indeed, were it to judge the

same issues, precedent being its guide, the decision would 4
no doubt be contrary to that rendered by the Circuit f
Court of Appeals. There can be little doubt that
regardless of the test employed, be it “outcome-
determinative,” Guaranty Trust Co. v. York, 326 U.S.

99 (1945), or avoidance of forum shopping and
inequitable administration of laws, Hanna v. Plumer, 380

U.S. 460 (1965), the duty of a physician to his patient

and the necessity of expert guidance in deciding
complicated issues of medical causation are questions

upon which the rulings of the federal courts should not

stray from the holdings required by local law.

This issue is especially vital in the District of Columbia,
a limited urban district which is the location of several
major hospital and medical centers, but which is engulfed
by a considerably larger metropolitan and multi-state
area. It is a well-known fact that the District of Columbia
courts are presently overburdened with malpractice cases,
which will undoubtedly involve the very issues at stake in

'The decision below adverted to a report by Dr. Spence to the
effect that the tying of sutures might have caused the paralysis
(Appendix A, page 41a). It is submitted that nowhere in said
report is there any such reference.

5
a en |

12

the instant case, and that the current volume of litigation
is such that the courts will be years in resolving them. In
short, the variance between decisions of the Circuit Court
of Appeals and those of the District of Columbia Court
of Appeals is not a transitory issue that will be cured by
the passage of time. The peculiar geographic nature of the
District of Columbia, it must be said, would afford an
exceptional opportunity for litigants to shop for the most
favorable forum. There is simply more opportunity for
plaintiffs to qualify for diversity of citizenship and thus
to invoke the jurisdiction of the District of Columbia
federal courts. Truly, if the decision below is allowed to
stand, there will result in the District of Columbia’s
judicial system a most uneven administration of the law.

CONCLUSION

For the reasons stated in this petition it is respectfully
prayed that this Court issue its writ of certiorari to review
the judgment and opinion of the United States Court of
Appeals for the District of Columbia Circuit.

Respectfully submitted,

JOHN L. LASKEY
1828 L Street, N.W.
Washington, D.C. 20036

WALTER J. MURPHY, JR.
1511 K Street, N.W.
Washington, D.C. 20005

Attorneys for Petitioners

October 24, 1972

COPY PRINTE

la
APPENDIX A
: This opinion is subject to formal revision before publicati

or U.S.App.D.C. Users are requested to notify the
Clerk of any formal errors in order corrections may be

Anited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 22,099 ‘

JERRY W. CANTERBURY,
APPELLANT

Vv.

Wurm THornton SPENCE AND
Tae WasHincton Hosprta Center, A Bopy Corporate,
APPELLEES

f
t

Appeal from the United States District Court
for the District of Columbia

this date
Decided May 19, 1972 | <—=

_—

Judgment ext "

Mr. Earl H. Davis fpr appellant.
Mr. Walter J. Murphy, Jr., for appellee Spence.

Mr. John L. Laskey for appellee Washington Hospital
Center.

Before Wricut, LEVENTHAL and Rosrnson, Circuit Judges.

Rosrnson, Circuit Judge: This appeal is from a judgment
in the District Court on verdicts directed for the

) CLOSE TO EDGE

2a

two appellees at the conclusion of plaintiff-appellant Can.
terbury’s case in chief. His action sought damages for per.
sonal injuries allegedly sustained as a result of an oper.
ation negligently performed by appellee Spence, a negli.
gent failure by Dr. Spence to disclose a risk of serious dis.
ability inherent in the operation, and negligent post.
operative care by appellee Washington Hospital Center,
On close examination of the record, we find evidence which
required submission of these issues to the jury. We ac.
cordingly reverse the judgment as to each appellee and re.
mand the case to the District Court for a new trial.

I

The record we review tells a depressing tale. A youth
troubled only by back pain submitted to an operation with-
out being informed of a risk of paralysis incidental thereto.
A day after the operation he fell from his hospital bed after
having been left without assistance while voiding. A few
hours after the fall, the lower half of his body was par-
alyzed, and he had to be operated on again. Despite exten-
sive medical care, he has never been what he was before. In-
stead of the back pain, even years later, he hobbled about on
crutches, a victim of paralysis of the bowels and urinary in-
continence. In a very real sense this lawsuit is an under-
standable search for reasons.

At the time of the events which gave rise to this litigation,
appellant was nineteen years of age, a clerk-typist employed
by the Federal Bureau of Investigation. In December, 1958,
he began to experience severe pain between his shoulder
blades. He consulted two general practitioners, but the

1 Two months earlier, appellant was hospitalized for diag-
nostic tests following complaints of weight loss and lassi-
tude. He was discharged with a final diagnosis of neurosis
and thereafter given supportive therapy by his then attend-

ing physician.

we

3a

medications they prescribed failed to eliminate the pain.
Thereafter, appellant secured an appointment with Dr.
Spence, who is a neurosurgeon.

Dr. Spence examined appellant in his office at some length
but found nothing amiss. On Dr. Spence’s advice appellant
was x-rayed, but the films did not identify any abnormality.
Dr. Spence then recommended that appellant undergo a
myelogram—a procedure in which dye is injected into the =
spinal column and traced to find evidence of disease or other ;
disorder—at the Washington Hospital Center. d

;.

Appellant entered the hospital on February 4, 1959.2 |
The myelogram revealed a “filling defect” in the region of =|
the fourth thoracic vertebra. Since a myelogram often does
no more than pinpoint the location of an aberration, sur-
gery may be necessary to discover the cause. Dr. Spence
told appellant that he would have to undergo a laminectomy
—the excision of the posterior arch of the vertebra—to cor-
rect what he suspected was a ruptured disc. Appellant did
not raise any objection to the proposed operation nor did he
probe into its exact nature. )

eh A lee
PERM S

Eg FNS NIM, COLLAR

Appellant explained to Dr. Spence that his mother was
a widow of slender financial means living in Cyclone, West |
Virginia, and that she could be reached through a neighbor’s |
telephone. Appellant called his mother the day after the —
myelogram was performed and, failing to contact her, left
Dr. Spence’s telephone number with the neighbor. When
Mrs. Canterbury returned the call, Dr. Spence told her that
the surgery was occasioned by a suspected ruptured disc.
Mrs. Canterbury then asked if the recommended operation
was serious and Dr. Spence replied “not anymore than any

manent

2The dates stated herein are taken from the hospital rec-
ords. At trial, appellant and his mother contended that the
records were inaccurate, but the one-day difference over
which they argued is without significance.

4a

other operation.” He added that he knew Mrs. Canterbury
was not well off and that her presence in Washington would
not be necessary. The testimony is contradictory as to whe.
ther during the course of the conversation Mrs. Canterbury
expressed her consent to the operation. Appellant himself
apparently did not converse again with Dr. Spence prior
to the operation.

Dr. Spence performed the laminectomy on February 11!
at the Washington Hospital Center. Mrs. Canterbury tray.
eled to Washington, arriving on that date but after the
operation was over, and signed a consent form at the hos.
pital. The laminectomy revealed several anomalies: a spinal
cord that was swollen and unable to pulsate, an accumula.
tion of large tortuous and dilated veins, and a complete
absence of epidural fat which normally surrounds the spine,
A thin hypodermic needle was inserted into the spinal cord
to aspirate any cysts which might have been present, but
no fluid emerged. In suturing the wound, Dr. Spence at-
tempted to relieve the pressure on the spinal cord by en-
larging the dura—the outer protective wall of the spinal
cord—at the area of swelling.

For approximately the first day after the operation ap-
pellant recuperated normally, but then suffered a fall and
an almost immediate setback. Since there is some conflict as
to precisely when or why appellant fell,* we reconstruct the
events from the evidence most favorable to him.> Dr. Spence

3 The operation was postponed five days because appel-
lant was suffering from an abdominal infection.

4 The one fact clearly emerging from the otherwise murky
portrayal by the record, however, is that appellant did fall
while attempting to void and while completely unattended.

5 See Aylor v. Intercounty Constr. Corp., 127 U.S.App.D.¢.
151, 153, 381 F.2d 930, 932 (1967), and cases cited in n2
thereof.

5a

left orders that appellant was to remain in bed during the

rocess of voiding. These orders were changed to direct that
voiding be done out of bed, and the jury could find that
the change was made by hospital personnel. Just prior to
the fall, appellant summoned a nurse and was given a re-
ceptacle for use in voiding, but was then left unattended.
Appellant testified that during the course of the endeavor he
slipped off the side of the bed, and that there was no one to
assist him, or side rail to prevent the fall.

Several hours later, appellant began to complain that he
could not move his legs and that he was having trouble
breathing; paralysis seems to have been virtually total
from the waist down. Dr. Spence was notified on the night
of February 12, and he rushed to the hospital. Mrs. Canter-
bury signed another consent form and appellant was again
taken into the operating room. The surgical wound was
reopened and Dr. Spence created a gusset to allow the spinal
cord greater room in which to pulsate.

Appellant’s control over his muscles improved somewhat
after the second operation but he was unable to void prop-
erly. As a result of this condition, he came under the care
of a urologist while still in the hospital. In April, following
a cystoscopic examination, appellant was operated on for
removal of bladder stones, and in May was released from the
hospital. He reentered the hospital the following August for
a 10-day period, apparently because of his urologic prob-
lems. For several years after his discharge he was under the
care of several specialists, and at all times was under the
care of a urologist. At the time of the trial in April, 1968,
appellant required crutches to walk, still suffered from
urinal incontinence and paralysis of the bowels, and wore
a penile clamp.

In November, 1959, on Dr. Spence’s recommendation, ap-
pellant was transferred by the F.B.I. to Miami where he
could get more swimming and exercise. Appellant worked

6a

three years for the F.B.I. in Miami, Los Angeles and Hous.
ton, resigning finally in June, 1962. From then until the
time of the trial, he held a number of jobs, but had constant
trouble finding work because he needed to remain seated
and close to a bathroom. The damages appellant claims in.
clude extensive pain and suffering, medical expenses, and
loss of earnings.

Ir

Appellant filed suit in the District Court on March 7, 1963,
four years after the laminectomy and approximately two
years after he attained his majority. The complaint stated
several causes of action against each defendant. Against
Dr. Spence it alleged, among other things, negligence in the
performance of the laminectomy and failure to inform him
beforehand of the risk involved. Against the hospital the
complaint charged negligent post-operative care in permit-
ting appellant to remain unattended after the laminectomy,
in failing to provide a nurse or orderly to assist him at the
time of his fall, and in failing to maintain a side rail on
his bed. The answers denied the allegations of negligence
and defended on the ground that the suit was barred by
the statute of limitations.

Pretrial discovery—including depositions by appellant,
his mother and Dr. Spence—continuances and other delays
consumed five years. At trial, disposition of the threshold
question whether the statute of limitations had run was
held in abeyance until the relevant facts developed. Appel-
lant introduced no evidence to show medical and hospital
practices, if any, customarily pursued in regard to the criti-
cal aspects of the case, and only Dr. Spence, called as an
adverse witness, testified on the issue of causality. Dr.
Spence described the surgical procedures he utilized in the
two operations and expressed his opinion that appellant's
disabilities stemmed from his pre-operative condition as

niet iitmaieat ———

7a

symptomized by the swollen, non-pulsating spinal cord. He
stated, however, that neither he nor any of the other physi-
cians with whom he consulted was certain as to what that
condition was, and he admitted that trauma can be a cause
of paralysis. Dr. Spence further testified that even without
trauma paralysis can be anticipated “somewhere in the
nature of one percent” of the laminectomies performed, a
risk he termed “a very slight possibility.” He felt that com-
munication of that risk to the patient is not good medical
practice because it might deter patients from undergoing
needed surgery and might produce adverse psychological
reactions which could preclude the success of the operation.

At the close of appellant's case in chief, each defendant
moved for a directed verdict and the trial judge granted
both motions. The basis of the ruling, he explained, was that
appellant had failed to produce any medical-evitience indi-
cating negligence on Dr. Spence’s part in diagnosing ap-
pellant’s malady or in performing the laminectomy; that
there was no proof that Dr. Spence’s treatment was re-
sponsible for appellant’s disabilities; and that notwith-
standing some evidence to show negligent post-operative
care, an absence of medical testimony to show causality
precluded submission of the case against the hospital to the
jury. The judge did not allude specifically to the alleged
breach of duty by Dr. Spence to divulge the possible conse-
quences of the laminectomy.

We reverse. The testimony of appellant and his mother
that Dr. Spence did not reveal the risk of paralysis from
the laminectomy made out a prima facie case of violation
of the physician’s duty to disclose which Dr. Spence’s ex-
planation did not negate as a matter of law. 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

29 tO RT? peerer reer

Rote i. Ae ak fe |

8a

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 condi-
tion. These considerations entitle appellant to a new trial,

Elucidation of our reasoning necessitates elaboration on
a number of points. In Parts III and IV we explore the
origins and rationale of the physician’s duty to reasonably
inform an ailing patient as to the treatment alternatives
available and the risks incidental to them. In Part V we in.
vestigate the scope of the disclosure requirement and
in Part VI the physician’s privileges not to disclose. In
Part VII we examine the role of causality, and in Part VIII
the need for expert testimony, in non-disclosure litigation.
In Part [X we deal with appellees’ statute of limitations
defense and in Part X we apply the principles discussed to
the case at bar.

Ill
Suits charging failure by a physician * adequately to dis-
close the risks and alternatives of proposed treatment are
not innovations in American law. They date back a good
half-century,’ and in the last decade they have multiplied
rapidly.* There is, nonetheless, disagreement among the

* Since there was neither allegation nor proof that the ap
pellee hospital failed in any duty to disclose, we have no oc-
casion to inquire as to whether or under what circumstances

T See, e.g., Theodore v. Ellis, 141 La. 709, 75 So. 655, 660
(1917) ; Wojciechowski v. Coryell, 217 S.W. 638, 644 (Mo.
App. 1920) ; Hunter v. Burroughs, 123 Va. 113, 96 S.E. 360,
366-68 (1918).

® See the collections in Annot., 79 A.L.R.2d 1028 (1961);
Comment, Informed Consent in Medical Malpractice, 55 Calif.
L. Rev. 1396, 1397 n.5 (1967).

, see
ashington Univ., 116 U.S.App.D.C.

” In Stivers-v. George Wi

320 F.2d 751 (1963),

29,
physician

Informed Consent to Therapy, 64 Nw.

UL. Rev. 628 n.1 (1970).

* For references to a considerable body of

Waltz & Scheuneman,

and the

pissacgagensage
Hera
patil

=

a charge was asserted against a

and a hospital that
did
which

trial j
appeal

and

We

[the

as either approvi

of the risk-nondisclosure issue between the patient

in the trial court.
‘fo oles a only a general outline of legal doctrine

cA g2 205 rh
PBI Hi
tte

—

[i

tae weet

10a

The root premise is the concept, fundamental in Ameri.
can jurisprudence, that “[e]very human being of adult years
and sound mind has a right to determine what shall be done
with his own body. . . .”* True consent to what happens ty _
one’s self is the informed exercise of a choice, and that ep.
tails an opportunity to evaluate knowledgeably the options
available and the risks attendant upon each.” The average
patient has little or no understanding of the medical arts,
and ordinarily has only his physician to whom he can look
for enlightenment with which to reach an intelligent deci-
sion."* From these almost axiomatic considerations springs
the need, and in turn the requirement, of a reasonable di-
vulgence by physician to patient to make such a decision
possible.*®

12 Schloendorff v. Society of New York Hospitals, 211 N.Y.
125, 105 N.E. 92, 93 (1914). See also Natanson v. Kline, 186
Kan. 393, 350 P.2d 1093, 1104 (1960), clarified, 187 Kan. 186,
354 P.2d 670 (1960); W. Prosser, Torts § 18 at 102 (3d ed,
1964) ; Restatement of Torts § 49 (1934).

13See Dunham v. Wright, 423 F.2d 940, 943-46 (3d Cir.
1970) (applying Pennsylvania law) ; Campbell v. Oliva, 424
F.2d 1244, 1250-51 (6th Cir. 1970) (applying Tennessee law) ;
Bowers v. Talmage, 159 So.2d 888 (Fla.App. 1963); Woods
v. Brumlop, 71 N.M. 221, 377 P.2d 520, 524-25 (1962) ; Mason
v. Ellsworth, 3 Wash.App. 298, 474 P.2d 909, 915, 918-19
(1970).

14 Patients ordinarily are persons unlearned in the medi-
cal sciences. Some few, of course, are schooled in branches
of the medical profession or in related fields. But even within
the latter group variations in degree of medical knowledge
specifically referable to particular therapy may be broad, as
for example, between a specialist and a general practitioner,
or between a physician and a nurse. It may well be, then,
that it is only in the unusual case that a court could safely
assume that the patient’s insights were on a parity with
those of the treating physician.

18 The doctrine that a consent effective as authority to
perform therapy can arise only from the patient’s under-

lla

A physician is under a duty to treat his patient skillfully,”®
but proficiency in diagnosis and therapy is not the full mea-
sure of his responsibility. The cases demonstrate that the

standing of alternatives to and risks of the therapy is com-
monly denominated “informed consent.” See, e.g., Waltz &
Scheuneman, Informed Consent to Therapy, 64 Nw. ULL.
Rev. 628, 629 (1970). The same appellation is frequently
assigned to the doctrine requiring physicians, as a matter
of duty to patients, to communicate information as to such
alternatives and risks. See, e.g., Comment, Informed Con-
sent in Medical Malpractice, 55 Calif. L. Rev. 1896 (1967).
While we recognize the general utility of shorthand phrases
in literary expositions, we caution that uncritical use of the
“informed consent” label can be misleading. See, e.g., Plante,
An Analysis of “Informed Consent,” 36 Ford. L. Rev. 639,
671-72 (1968).

In duty-to-disclose cases, the focus of attention is more
properly upon the nature and content of the physician’s di-
vulgence than the patient’s understanding or consent. Ade-
quate disclosure and informed consent are, of course, two
sides of the same coin—the former a sine qua non of the
latter. But the vital inquiry on duty to disclose relates to
the physician’s performance of an obligation, while one of
the difficulties with analysis in terms of “informed consent”
is its tendency to imply that what is decisive is the degree
of the patient’s comprehension. As we later emphasize, the
physician discharges the duty when he makes a reasonable
effort to convey sufficient information although the patient,
without fault of the physician, may not fully grasp it. See
text infra at notes 82-89. Even though the factfinder may
have occasion to draw an inference on the state of the pa-
tient’s enlightenment, the factfinding process on perform-
ance of the duty ultimately reaches back to what the physi-
cian actually said or failed to say. And while the factual
conclusion on adequacy of the revelation will vary as between
patients—as, for example, between a lay patient and a physi-
cian-patient—the fluctuations are attributable to the kind of
divulgence which may be reasonable under the circumstances.

1 Brown v. Keaveny, 117 U.S.App.D.C. 117, 118, 326 F.2d
660, 661 (1963); Quick v. Thurston, 110 U.S.App.D.C. 169,

an.
nates ~ajt of Gime PE es 2, Seen "40 SKF * AON ee:

12a

physician is under an obligation to communicate specific
information to the patient when the exigencies of reasonable
care cal! for it..7 Due care may require a physician perceiy-
ing symptoms of bodily abnormality to alert the patient to
the condition."* It may call upon the physician confronting
an ailment which does not respond to his ministrations to in-
form the patient thereof.’* It may command the physician
to instruct the patient as to any limitations to be presently
observed for his own welfare,” and as to any precautionary
therapy he should seek in the future. It may oblige the phy-

171, 290 F.2d 360, 362, 88 A.L.R.2d 299 (en bane 1961);
Rodgers v. Lawson, 83 U.S.App.D.C. 281, 282, 170 F.2d 157,
158 (1948).

17 See discussion in McCoid, The Care Required of Medi-
cal Practitioners, 12 Vand. L. Rev. 549, 586-97 (1959).

18 See Union Carbide & Carbon Corp. v. Stapleton, 237 F.2d
229, 232 (6th Cir. 1956); Maertins v. Kaiser Foundation
Hosp., 162 Cal.App.2d 661, 328 P.2d 494, 497 (1958); Doty
v. Lutheran Hosp. Ass’n, 110 Neb. 467, 194 N.W. 444, 445,
447 (1923); Tvedt v. Haugen, 70 N.D. 338, 294 N.W. 183,
187 (1940). See also Dietze v. King, 184 F.Supp. 944, 948,
949 (E.D.Va. 1960); Dowling v. Mutual Life Ins. Co., 168
So.2d 107, 116 (La.App. 1964), writ refused, 247 La. 248,
170 So.2d 508 (1965).

19See Rahn v. United States, 222 F.Supp. 775, 780-81
(S.D.Ga. 1963) (applying Georgia law); Baldor v. Rogers,
81 So.2d 658, 662, 55 A.L.R.2d 453 (Fla. 1955); Manion v.
Tweedy, 257 Minn. 59, 100 N.W.2d 124, 128, 129 (1959);
Tvedt v. Haugen, supra note 18, 294 N.W. at 187; Json v.
McFall, 55 Tenn.App. 326, 400 S.W.2d 243, 258 (1964);
Kelly v. Carroll, 36 Wash.2d 482, 219 P.2d 79, 88, 19 A.L.R.2d
1174, cert. denied, 340 U.S. 892 (1950).

20 Newman v. Anderson, 195 Wis. 200, 217 N.W. 306 (1928).
See also Whitfield v. Daniel Constr. Co., 226 S.C. 37, 83 S.E.2d
460, 463 (1954).

21 Beck v. German Klinik, 78 lowa 696, 43 N.W. 617, 618
(1889) ; Pike v. Honsinger, 155 N.Y. 201, 49 N.E. 760, 762
(1898) ; Doan v. Griffith, 402 S.W.2d 855, 856 (Ky. 1966).

— ar et Rg SN EA BELEN PERE ELLIE LIS GPE T AE PI LPN
a

13a

sician to advise the patient of the need for or desirability
of any alternative treatment promising greater benefit than
that being pursued.” Just as plainly, due care normally de-
mands that the physician warn the patient of any risks
to his well-being which contemplated therapy may involve.”

The context in which the duty of risk-disclosure arises is
invariably the occasion for decision as to whether a particu-
lar treatment procedure is to be undertaken. To the phy-
sician, whose training enables a self-satisfying evaluation,
the answer may seem clear, but it is the prerogative of the
patient, not the physician, to determine for himself the
direction in which his interests seem to lie.** To enable the
patient to chart his course understandably, some familiar-
ity with the therapeutic alternatives and their hazards be-
comes essential.

A reasonable revelation in these respects is not only a
necessity but, as we see it, is as much a matter of the phy-

2 The typical situation is where a general practitioner
discovers that the patient’s malady calls for specialized treat-
ment, whereupon the duty generally arises to advise the
patient to consult a specialist. See the cases collected in Annot.,
35 A.L.R.3d 349 (1971). See also Baldor v. Rogers, supra
note 19, 81 So.2d at 662; Garafola v. Maimonides Hosp., 22
App.Div.2d 85, 253 N.Y.S.2d 856, 858, 28 A.L.R.38d 1357
(1964) ; aff'd, 19 N.Y.2d 765, 226 N.E.2d 311, 28 A.L.R.3d
1362 (1967) ; McCoid, The Care Required of Medical Practi-
tioners, 12 Vand. L. Rev. 549, 597-98 (1959).

3 See, e.g., Wall v. Brim, 138 F.2d 478, 480-81 (5th Cir.
1943), consent issue tried on remand and verdict for plain-
tif aff'd., 145 F.2d 492 (5th Cir. 1944), cert. denied, 324
U.S. 857 (1945) ; Belcher v. Carter, 13 Ohio App.2d 118, 234
N.E.2d 311, 312 (1967) ; Hunter v. Burroughs, supra note 7,
96 S.E. at 366; Plante, An Analysis of “Informed Consent,”
36 Ford. L. Rev. 639, 653 (1968).

* See text supra at notes 12-13.
* See cases cited supra notes 14-15.

atte npn

ATA AR TICE

14a

sician’s duty. It is a duty to warn of the dangers lurki

in the proposed treatment, and that is surely a facet of due
care.” It is, too, a duty to impart information which the
patient has every right to expect.” The patient’s reliance
upon the physician is a trust of the kind which traditionally
has exacted obligations beyond those associated with arms.
length transactions.” His dependence upon the physician
for information affecting his well-being, in terms of contem.
plated treatment, is well-nigh abject. As earlier noted, long
before the instant litigation arose, courts had recognized
that the physician had the responsibility of satisfying the

26 See text supra at notes 17-23.

*7 Some doubt has been expressed as to ability of physicians
to suitably communicate their evaluations of risks and the
advantages of optional treatment, and as to the lay patient’s
ability to understand what the physician tells him. Karchmer,
Informed Consent: A Plaintiff's Medical Malpractice “Won-
der Drug,” 31 Mo. L. Rev. 29, 41 (1966). We do not share
these apprehensions. The discussion need not be a disquisi-
tion, and surely the physician is not compelled to give his
patient a short medical education; the disclosure rule sum-
mons the physician only to a reasonable explanation. See
Part V, infra. That means generally informing the patient
in non-technical terms as to what is at stake: the therapy
alternatives open to him, the goals expectably to be achieved,
and the risks that may ensue from particular treatment and
no treatment. See Stinnett v. Price, 446 S.W.2d 893, 894, 895
(1969). So informing the patient hardly taxes the physi-
cian, and it must be the exceptional patient who cannot
comprehend such an explanation at least in a rough way.

28 That element comes to the fore in litigation involving
contractual and property dealings between physician and
patient. See, e.g., Campbell v. Oliva, supra note 13, 424 F.2d
at 1250; In re Bourquin’s Estate, 161 Cal.App.2d 289, 326
P.2d 604, 610 (1958); Butler v. O’Brien, 8 IIl.2d 203, 133
N.E.2d 274, 277 (1956) ; Woodbury v. Woodbury, 141 Mass.
329, 5 N.E. 275, 278, 279 (1886) ; Clinton v. Miller, 77 Okla.
173, 186 P. 932, 983 (1919); Hodge v. Shea, 252 S.C. 601,
168 S.E.2d 82, 84, 87 (1969).

1Sa

yital informational needs of the patient.” More recently,
we ourselves have found “in the fiducial qualities of [the
physician-patient] relationship the physician’s duty to re-
yeal to the patient that which in his best interests it is
important that he should know.” * We now find, as a part
of the physician’s overall obligation to the patient, a sim-
ilar duty of reasonable disclosure of the choices with re-
spect to proposed therapy and the dangers inherently and
potentially involved.™

This disclosure requirement, on analysis, reflects much
more of a change in doctrinal emphasis than a substantive
addition to malpractice law. It is well established that the
physician must seek and secure his patient’s consent be-
fore commencing an operation or other course of treat-
ment.** It is also clear that the consent, to be efficacious,

2 See, e.g., Sheets v. Burman, 322 F.2d 277, 279-80 (5th
Cir. 1963) ; Hudson v. Moore, 239 Ala. 130, 194 So. 147, 149
(1940) ; Guy v. Schuldt, 236 Ind. 101, 188 N.E.2d 891, 895
(1956) ; Perrin v. Rodriguez, 153 So. 555, 556-57 (La.App.
1934) ; Schmucking v. Mayo, 183 Minn. 37, 235 N.W. 633
(1931) ; Thompson v. Barnard, 142 S.W.2d 238, 241 (Tex.
Civ.App. 1940), aff’d, 1388 Tex. 277, 158 S.W.2d 486 (1942).

%* Emmett v. Eastern Dispensary & Cas. Hosp., 130 U.S.
App.D.C. 50, 54, 396 F.2d 931, 935 (1967). See also, Swan,
The California Law of Malpractice of Physicians, Surgeons,
and Dentists, 33 Calif. L. Rev. 248, 251 (1945).

51 See cases cited supra notes 16-28; Berkey v. Anderson,
1 Cal.App.3d 790, 82 Cal.Rptr. 64, 78 (1970); Smith, Ante-
cedent Grounds of Liability in the Practice of Surgery, 14
Rocky Mt. L. Rev. 233, 249-50 (1942); Swan, The California
Law of Malpractice of Physicians, Surgeons, and Dentists,
33 Calif. L. Rev. 248, 251 (1945); Note, 40 Minn. L. Rev.
876, 879-80 (1956).

%2 See cases collected in Annot., 56 A.L.R.2d 695 (1967).
Where the patient is incapable of consenting, the physician
may have to obtain consent from someone else. See, e.g.,
Bonner v. Moran, 75 U.S.App.D.C. 156, 157-58, 126 F.2d
121, 122-23, 1389 A.L.R. 1366 (1941).

. FATA ai ee Rie a
poe

l6a

must be free from imposition upon the patient.** It is the
settled rule that therapy not authorized by the patient may
amount to a tort—a common law battery—by the phy-
sician.™ And it is evident that it is normally impossible to
obtain a consent worthy of the name unless the physician
first elucidates the options and the perils for the patient’s
edification.* Thus the physician has long borne a duty, on
pain of liability for unauthorized treatment, to make ade.
quate disclosure to the patient.** The evolution of the obli-
gation to communicate for the patient’s benefit as well as the
physician’s protection has hardly involved an extraordinary
restructuring of the law.

** See Restatement (Second) of Torts §§ 55-58 (1965).

54 See, e.g., Bonner v. Moran, supra note 32, 75 U.S.App.
D.C. at 157, 126 F.2d at 122, and cases collected in Annot.,
56 A.L.R.2d 695, 697-99 (1957). See also Part IX, infra.

%5 See cases cited supra note 13. See also McCoid, The Care
Required of Medical Practitioners, 12 Vand. L. Rev. 549, 587-
91 (1959).

8° We discard the thought that the patient should ask for
information before the physician is required to disclose.
Caveat emptor is not the norm for the consumer of medical
services. Duty to disclose is more than a call to speak merely
on the patient’s request, or merely to answer the patient’s
questions; it is a duty to volunteer, if necessary, the infor-
mation the patient needs for intelligent decision. The patient
may be ignorant, confused, overawed by the physician or
frightened by the hospital, or even ashamed to inquire. See
generally Note, Restructuring Informed Consent: Legal Ther-
apy for the Doctor-Patient Relationship, 79 Yale L.J. 1538,
1545-51 (1970). Perhaps relatively few patients could in any
event identify the relevant questions in the absence of prior
explanation by the physician. Physicians and hospitals have
patients of widely divergent socio-economic backgrounds, and
a rule which presumes a degree of sophistication which many
members of society lack is likely to breed gross inequities.
See Note, Informed Consent as a Theory of Medical Lia-
bility, 1970 Wis. L. Rev. 879, 891-97.

SAARC NORE RATT Rt TON TON LT Rt, nt RINE GRETNA SINT LEGIT. ORD ane

17a

IV

Duty to disclose has gained recognition in a large number
of American jurisdictions,*” but more largely on a different
rationale. The majority of courts dealing with the problem
have made the duty depend on whether it was the custom
of physicians practicing in the community to make the par-
ticular disclosure to the patient.** If so, the physician may
be held liable for an unreasonable and injurious failure to
divulge, but there can be no recovery unless the omission
forsakes a practice prevalent in the profession.*® We agree
that the physician’s noncompliance with a professional cus-
tom to reveal, like any other departure from prevailing
medical practice,*® may give rise to liability to the patient.
We do not agree that the patient’s cause of action is de-
pendent upon the existence and nonperformance of 4 rele-
vant professional tradition.

There are, in our view, formidable obstacles to acceptance
of the notion that the physician’s obligation to disclose is
either germinated or limited by medical practice. To begin
with, the reality of any discernible custom reflecting a
professional concensus on communication of option and

81The number is reported at 22 by 1967. Comment, In-
formed Consent in Medical Malpractice, 55 Calif. L. Rev.
1396, 1897, and cases cited in n.6 (1967).

88 See, e.g., DiFilippo v. Preston, 58 Del. 589, 173 A.2d
383, 389 (1961) ; Haggerty v. McCarthy, 344 Mass. 136, 181
N.E.2d 562, 565, 566 (1962); Roberts v. Young, 369 Mich.
138, 119 N.W.2d 627, 630 (1963) ; Aiken v. Clary, 396 S.W.2d
668, 675, 676 (Mo. 1965). As these cases indicate, majority-
rule courts hold that expert testimony is necessary to estab-
lish the custom.

89 See cases cited supra note 38.
40 See, e.g., W. Prosser, Torts § 33 at 171 (3d ed. 1964).

—_

OOS Rtn SO ne te en Oe Ta

AP Ph PTS AT FF ne

ETNA INIT ET NN ote

18a

risk information to patients is open to serious doubt." We
sense the danger that what in fact is no custom at all may
be taken as an affirmative custom to maintain silence, and
that physician-witnesses to the so-called custom may state
merely their personal opinions as to what they or others
would do under given conditions.** We cannot gloss over the
inconsistency between reliance on a general practice respect.
ing divulgence and, on the other hand, realization that the
myriad of variables among patients ** makes each case g
different that its omission can rationally be justified only
by the effect of its individual circumstances.** Nor can we
ignore the fact that to bind the disclosure obligation to med.
ical usage is to arrogate the decision on revelation to the
physician alone.*® Respect for the patient’s right of self.
determination on particular therapy ** demands a standard
set by law for physicians rather than one which physicians
may or may not impose upon themselves.*”

41 See, e.g., Comment, Informed Consent in Medical Mal-
practice, 55 Calif. L. Rev. 1396, 1404-05 (1967) ; Comment,
Valid Consent to Medical Treatment: Need the Patient Know?,
4 Duquesne L. Rev. 450, 458-59 (1966); Note, 75 Harv. L.
Rev. 1445, 1447 (1962).

42 Comment, Informed Consent in Medical Malpractice, 55
Calif. L. Rev. 1896, 1404 (1967); Note, 75 Harv. L. Rev.
1445, 1447 (1962).

48 For example, the variables which may or may not give
rise to the physician’s privilege to withhold risk information
for therapeutic reasons. See text Part VI, infra.

*4 Note, 75 Harv. L. Rev. 1445, 1447 (1962).

45 F.g., W. Prosser, Torts § 82 at 168 (3d ed. 1964) ; Com-
ment, Informed Consent in Medical Malpractice, 55 Calif. L.
Rev. 1396, 1409 (1967).

46 See text supra at notes 12-13.

47 See Berkey v. Anderson, supra note 31, 82 Cal.Rptr. at
78; Comment, Informed Consent in Medical Malpractice, 55

—— :
19a

More fundamentally, the majority rule overlooks the
graduation of reasonable-care demands in Anglo-American
jurisprudence and the position of professional custom in the
hierarchy. The caliber of the performance exacted by the
reasonable-care standard varies between the professional
and non-professional worlds, and so also the role of profes-
sional custom. “With but few exceptions,” we recently de-
clared, “society demands that everyone under a duty to use
care observe minimally a general standard.” *° “Familiarly
expressed judicially,” we added, “the yardstick is that de-
gree of care which a reasonably prudent person would have
exercised under the same or similar circumstances.” ** “Be-
yond this,” however, we emphasized, “the law requires those
engaging in activities requiring unique knowledge and abil-
ity to give a performance commensurate with the under-
taking.” © Thus physicians treating the sick must perform
at higher levels than non-physicians in order to meet the
reasonable care standard in its special application to phy-
sicians *'—“that degree of care and skill ordinarily exer-
cised by the profession in [the physician’s] own or similar
localities.” °? And practices adopted by the profession have

Calif. L. Rev. 1896, 1409-10 (1967). Medical custom bared
in the cases indicates the frequency with which the profes-
sion has not engaged in self-imposition. See, e.g., cases cited
supra note 23.

‘8 Washington Hosp. Center v. Butler, 127 U.S.App.D.C.
379, 388, 384 F.2d 331, 335 (1967).

49 Td.
80 Td.
51 Td.

8: Rodgers v. Lawson, supra note 16, 83 U.S.App.D.C. at
282, 170 F.2d at 158. See also Brown v. Keaveny, supra note

- —

indispensable value as evidence tending to establish just
what that degree of care and skill is.”

We have admonished, however, that “[t)he special medi.
cal standards “ are but adaptions of the general standard to
a group who are required to act as reasonable men posses.
sing their medical talents presumably would.”™ There ig
by the same token, no basis for operation of the special
medical standard where the physician's activity does not
bring his medical knowledge and skills preculiarly into
play.“ And where the challenge to the physician's condoc
is not to be gauged by the special standard, it follows that
medical custom cannot furnish the test of its
whatever its relevance under the proper test may be.” The
decision to unveil the patient's condition and the chances
as to remediation, as we shall see, is oftimes a non-medical
judgment ™ and, if so, is a decision outside the ambit of
the special standard. Where that is the situation, profes
sional custom hardly furnishes the legal criterion for mes-

16, 117 U.S.App.D.C. at 118, 326 F.2d at 661; Quick v. Thurs.
ton, supra note 16, 110 U.S.App.D.C. at 171, 290 F.2d at 362.

“E.g.. Washington Hosp. Center v. Butler, supra note @,
127 U.S.App.D.C. at 383, 384 F.2d at 335. See also cose
cited infra note 119.

% Jd. at 383 ns. 10-12, 384 F.2d at 335 ns.10-12.
™ Jd. at 384 n. 15, 384 F.2d at 336 n.16.

“E¢., Lucy Webb Hayes Nat'l Training School v. Perotti,
136 U.S.App.D.C. 122, 127-29, 419 F.2d 704, 710-11 (1969);
Monk v. Doctors Hosp., 131 U.S.App.D.C. 174, 177, 403 F.2d
oa (1968) ; Washington Hosp. Center v. Butler, supra
note

* Washington Hosp. Center v.
U.S.App.D.C. at 387-88, 384 F.2d at 336-37. See also case
cited infra note 59.

™ See Part V, infra.

a
7 i ine
: E ida if i
Halt ley

HUT

Bedas
3" a

itgds

infra note 119.

™ See cases cited swpra note 59.

© See cases cited supra note 59.

“See Part V, infra.

“Comment, Informed Consent in Medical Malpractice, 55

Calif. L. Rev. 1396, 1405 (1967).

er ~ new GD

2 "re

—

eal)

~

“ B.g., Salgo v. Leland Stanford Jr. Unie. Bd. of Trustess,
154 Cal App.2d 560, 317 P.2d 170, 181 (1957); Woods +.
, Supra note 13, 377 P.2d at 524-25.

™ See Stottlemire v. Cawood, 213 F Supp. 897, 898 (D.D.C_).
new trial denied, 215 F Supp. 266 (1963); Yeates v. Harms,
193 Kan. 320, 393 P.2d 982, 991 (1964), on rehearing, 1M

> diese.
total disclo-
much.
have
fashion

ai

Hitt iL Hy Hf

uit ait TT

os ee
ft Ray He
[a eben Ge
fe [pal
ef ace
+f i: Hit abe HEAT
Ae pera
Para Free ba

| ™ See Part III, supra.

24a

The latter, we think, should no more establish the scope of
the duty than its existence. Any definition of scope in terms
purely of a professional standard is at odds with the
patient's prerogative to decide on projected therapy him.
self.* That prerogative, we have said, is at the very
foundation of the duty to disclose,"* and both the pati
right to know and the physician’s correlative obligation to
tell him are diluted to the extent that its compass is dic.
tated by the medical profession.”

In our view, the patient’s right of self-decision shapes the
boundaries of the duty to reveal. That right can be effes.
tively exercised only if the patient possesses enough infor.
mation to enable an intelligent choice. The scope of the
physician’s communications to the patient, then, must be
measured by the patient’s need,” and that need is the
information material to the decision. Thus the test for
determining whether a particular peril must be divulged
is its materiality to the patient’s decision: all risks poten.
tially affecting the decision must be unmasked.” And to
safeguard the patient’s interest in achieving his own deter.
mination on treatment, the law must itself set the standard
for adequate disclosure.”

Optimally for the patient, exposure of a risk would be
mandatory whenever the patient would deem it significant

*8 See text supra at notes 12-13.
6 See Part III, supra.

For similar reasons, we reject the suggestion that dis-
closure should be discretionary with the physician. See Note,
109 U. Pa. L. Rev. 768, 772-73 (1961).

™ See text supra at notes 12-15.

* See Waltz & Scheuneman, Informed Consent to Therapy,
64 Nw. U.L. Rev. 628, 639-41 (1970).

*° See Comment, Informed Consent in Medical Malpractice,
55 Calif. L. Rev. 1396, 1407-10 (1967).

25a

to his decision, either singly or in combination with other
risks. Such a requirement, however, would summon the
physician to second-guess the patient, whose ideas on mate-
riality could hardly be known to the physician. That would
make an undue demand upon medical practitioners, whose
conduct, like that of others, is to be measured in terms of
reasonableness. Consonantly with orthodox negligence doc-
trine, the physician’s liability for nondisclosure is to be
determined on the basis of foresight, not hindsight; no less
than any other aspect of negligence, the issue on nondis-
dosure must be approached from the viewpoint of the rea-
sonableness of the physician’s divulgence in terms of what
he knows or should know to be the patient’s informational
needs. If, but only if, the fact-finder can say that the phy-
sician’s communication was unreasonably inadequate is an
imposition of liability legally or morally justified.

‘

'

7

;

;

:
7: “er a |

Of necessity, the content of the disclosure rests in the
first instance with the physician. Ordinarily it is only he
vho is in position to identify particular dangers: always he
must make a judgment, in terms of materiality, as to
whether and to what extent revelation to the patient is
called for. He cannot know with complete exactitude what
the patient would consider important to his decision, but
on the basis of his medical training and experience he can
sense how the average, reasonable patient expectably would
react. Indeed, with knowledge of, or ability to learn, his
patient’s background and current condition, he is in a
position superior to that of most others—attorneys, for
example—who are called upon to make judgments on pain
of liability in damages for unreasonable miscalculation.™

* See Waltz & Scheuneman, /nformed Consent to Therapy,
64 Nw. U.L. Rev. 628, 639-40 (1970).

"Id.

* Id.

FP EP LE POL IL PPLE LTT RIOT RI OOK Net ae |

26a

From these considerations we derive the breadth of the
disclosure of risks legally to be required. The scope of the
standard is not subjective as to either the physician or the
patient; it remains objective with due regard for the
patient’s informational needs and with suitable leeway for
the physician’s situation. In broad outline, we agree that
“[{a] risk is thus material when a reasonable person, in
what the physician knows or should know to be the patient's
position, would be likely to attach significance to the risk
or cluster of risks in deciding whether or not to forego the
proposed therapy.” *

The topics importantly demanding a communication of
information are the inherent and potential hazards of the
proposed treatment, the alternatives to that treatment, if
any, and the results likely if the patient remains untreated.

cant; a potential disability which dramatically outweighs

Scheuneman, Informed Consent to Therapy, 64 Nw. ULL. Rev.
628, 630-35 (1970). We have no occasion to explore prob
lems of the latter type on this appeal.

55 See Comment, Informed Consent in Medical Malpractice,
55 Calif. L. Rev. 1396, 1407 n.68 (1967).

27a

the potential benefit of the therapy or the detriments of the
existing malady may summons discussion with the patient.”

SP RP) ONT Dy.

There is no bright line separating the significant from the
insignificant; the answer in any case must abide a rule of
reason. Some dangers—infection, for example—are inher-
ent in any operation; there is no obligation to communicate
those of which persons of average sophistication are
aware.” Even more clearly, the physician bears no respon-
sibility for diseussion of hazards the patient has already
discovered, or those having no apparent materiality to
patients’ decision on therapy.** The disclosure doctrine,

* See Bowers v. Talmage, supra note 13 (3% chance of
death, paralysis or other injury, disclosure required) ; Scott
y. Wilson, 396 S.W.2d 532 (Tex.Civ.App. 1965), aff'd, 412
$.W.2d 299 (1967) (1% chance of loss of hearing, dis-
dosure required). Compare, where the physician was held
not liable, Stottlemire v. Cawood, supra note 68, (1/800,000
chance of aplastic anemia) ; Yeates v. Harms, supra note 68
(15% chance of loss of eye) ; Starnes v. Taylor, 272 N.C. 386,
158 S.E.2d 339, 344 (1968) (1/250 to 1/500 chance of per-
foration of esophagus).

* Roberts v. Young, supra note 38, 119 N.W.2d at 629-30;
Starnes v. Taylor, supra note 86, 158 S.E.2d at 344; Com-
ment, Informed Consent in Medical Malpractice, 55 Calif. L.
Rev. 1396, 1407 n.69 (1967); Note, 75 Harv. L. Rev. 1445,
1448 (1962).

* Yeates v. Harms, supra note 68, 393 P.2d at 991; Fleish-
man v. Richardson-Merrill, Inc., 94 N.J.Super. 84, 226 A.2d
843, 845-46 (1967). See also Natanson v. Kline, supra note
12, 350 P.2d at 1106.

* See text supra at note 84. And compare, to the contrary,
Oppenheim, Informed Consent to Medical Treatment, 11
Clev.-Mar. L. Rev. 249, 264-65 (1962); Comment, Valid
Consent to Medical Treatment: Need the Patient Know?, 4
Duquesne L. Rev. 450, 457-58 (1966), a position we deem un-
realistic. On the other hand, we do not subscribe to the view
that only risks which would cause the patient to forego the

|

28a

like others marking lines between permissible and imper.
missible behavior in medical practice, is in essence a re.
quirement of conduct prudent under the circumstances,
Whenever nondisclosure of particular risk information jg
open to debate by reasonable-minded men, the issue is for
the finder of the facts.”

VI

Two exceptions to the general rule of disclosure have
been noted by the courts. Each is in the nature of a phy.
sician’s privilege not to disclose, and the reasoning under.
lying them is appealing. Each, indeed, is but a recognition
that, as important as is the patient’s right to know, it is
greatly outweighed by the magnitudenous circumstances
giving rise to the privilege. The first comes into play when
the patient is unconscious or otherwise incapable of con.
senting, and harm from a failure to treat is imminent and
outweighs any harm threatened by the proposed treatment.
When a genuine emergency of that sort arises, it is settled
that the impracticality of conferring with the patient dis.
penses with need for it." Even in situations of that char-

treatment must be divulged, see Johnson, Medical Malprac-
tice—Doctrines of Res Ipsa Loquiter and Informed Consent,
37 U. Colo. L. Rev. 182, 185-91 (1965) ; Comment, Informed
Consent in Medical Malpractice, 55 Calif. L. Rev. 1396, 1407
n.68 (1967); Note, 75 Harv. L. Rev. 1445, 1446-47 (1962),
for such a principle ignores the possibility that while a sin-
gle risk might not have that effect, two or more might do
so. Accord, Waltz & Scheuneman, /nformed Consent to Ther-
apy, 64 Nw. U.L. Rev. 628, 635-41 (1970).

* E.g., Bowers v. Talmage, supra note 13, 159 So.2d at 889;
Aiken v. Clary, supra note 38, 396 S.W.2d at 676; Hastings v.
Hughes, 59 Tenn.App. 98, 4388 S.W.2d 349, 352 (1968).

% F.g., Dunham v. Wright supra note 13, 423 F.2d at 941-
42 (applying Pennsylvania law) ; Koury v. Follo, 272 N.C. 366,
158 S.E.2d 548, 555 (1968); Woods v. Brumlop, supra note

29a

ter the physician should, as current law requires, attempt |
ac so ; ie f time i i
to secure a relative’s consent if possible.” But if time is

too short to accommodate discussion, obviously the physi-

cian should proceed with the treatment.”

The second exception obtains when risk-disclosure poses
such a threat of detriment to the patient as to become un-
feasible or contraindicated from a medical point of view.

It is recognized that patients occasionally become so ill or
emotionally distraught on disclosure as to foreclose a ra-
tional decision, or complicate or hinder the treatment, or
perhaps even pose psychological damage to the patient.”
Where that is so, the cases have generally held that the
physician is armed with a privilege to keep the information
from the patient,®* and we think it clear that portents of

13, 377 P.2d at 525; Gravis v. Physicians & Surgeons Hosp.,
415 §.W.2d 674, 677, 678 (Tex.Civ.App. 1967).

* Where the complaint in suit is unauthorized treatment
of a patient legally or factually incapable of giving consent,
the established rule is that, absent an emergency, the physi-
cian must obtain the necessary authority from a relative.
See, e.g., Bonner v. Moran, supra note 32, 75 U.S.App.D.C.
at 157-58, 126 F.2d at 122-23 (15-year old child). See also
Koury v. Follo, supra note 91 (patient a baby).

*% Compare, e.g., Application of President & Directors of
Georgetown College, 118 U.S.App.D.C. 80, 331 F.2d 1000,
rehearing en banc denied, 118 U.S.App.D.C. 90, 331 F.2d 1010,
cert. denied, 377 U.S. 978 (1964).

* See, e.g., Salgo v. Leland Stanford Jr. Univ. Bd. of Trust-
ees, supra note 67, 317 P.2d at 281 (1957) ; Waltz & Scheune-
man, Informed Consent to Therapy, 64 Nw. U.L. Rev. 628, 641-
43 (1970).

% E.g., Roberts v. Woods, 206 F.Supp. 579, 583 (S.D.Ala.
1962) ; Nishi v. Hartwell, 52 Hawaii 188, 473 P.2d 116, 119
(1970) ;Woods v. Brumlop, supra note 13, 377 P.2d at 525;
Ball v. Mallinkrodt Chem. Works, 53 Tenn. App. 218, 381 S.W.
2d 563, 567-68 (1964).

ALE LL ALE LLL LIEGE LE AE ANTE

30a

that type may justify the physician in action he deen;
medically warranted. The critical inquiry is whether th
physician responded to a sound medical judgment that com.
munication of the risk information would present a threat
to the patient’s well-being.

The physician’s privilege to withhold information for
therapeutic reasons must be carefully circumscribed, hoy.
ever, for otherwise it might devour the disclosure rule itself.
The privilege does not accept the paternalistic notion that
the physician may remain silent simply because divulgence
might prompt the patient to forego therapy the physician
feels the patient really needs. That attitude presumes in.
stability or perversity for even the normal patient, and
runs counter to the foundation principle that the patient
should and ordinarily can make the choice for himself”
Nor does the privilege contemplate operation save where
the patient’s reaction to risk information, as reasonably
forseen by the physician, is menacing.®* And even ina situ-
ation of that kind, disclosure to a close relative with a view
to securing consent to the proposed treatment may be the
only alternative open to the physician.”

VII

No more than breach of any other legal duty does nonful-
fillment of the physician’s obligation to disclose alone estab-

% F.g., Scott v. Wilson, supra note 86, 396 S.W.2d at 534
35; Comment, Informed Consent in Medical Malpractice, 55
Calif. L. Rev. 1396, 1409-10 (1967); Note, 75 Harv. L. Rev.
1445, 1448 (1962).

%7 See text supra at notes 12-13.
%8 Note, 75 Harv. L. Rev. 1445, 1448 (1962).

% See Fiorentino v. Wenger, 26 App.Div.2d 693 272 N.Y.
S.2d 557, 559 (1966), appeal dismissed, 18 N.Y.2d 908, 223
N.E.2d 46 (1966), reversed on other grounds, 19 N.Y.2d 407,
227 N.E.2d 296 (1967). See also note 92, supra.

—— dete A a nee
3la

lish liability to the patient. An unrevealed risk that should
have been made known must materialize, for otherwise the
omission, however unpardonable, is legally without conse-
quence. Occurrence of the risk must be harmful to the
patient, for negligence unrelated to injury is non-
actionable.’ And, as in malpractice actions generally,”
there must be a causal relationship between the physician’s
failure to adequately divulge and damage to the patient.”

A causal connection exists when, but only when, disclo-
sure of significant risks incidental to treatment would have
resulted in a decision against it. The patient obviously
has no complaint if he would have submitted to the therapy
notwithstanding awareness that the risk was one of its
perils. On the other hand, the very purpose of the disclo-
sure rule is to protect the patient against consequences
shich, if known, he would have avoided by foregoing the
treatment. The more difficult question is whether the

10 Becker v. Colonial Parking, Inc., 188 U.S.App.D.C. 218,
919-20, 409 F.2d 1130, 1136-37 (1969) ; Richardson v. Gregory,
108 U.S.App.D.C. 263, 266-67, 281 F.2d 626, 629-30 (1960) ;
Arthur v. Standard Eng’r Co., 89 U.S.App.D.C. 399, 401, 193
F.2d 903, 905, 32 A.L.R.2d 408 (1951), cert. denied, 343 U.S.
964 (1952) ; Industrial Savs. Bank v. People’s Funeral Serv.
Corp., 54 App.D.C. 259, 260, 296 F. 1006, 1007 (1924).

101 See Morse v. Moretti, 181 U.S.App.D.C. 158, 403 F.2d
564 (1968) ; Kosberg v. Washington Hosp. Center, 129 U.S.
App.D.C. 322, 324, 394 F.2d 947, 949 (1968) ; Levy v. Vaughan,
42 App.D.C. 146, 153, 157 (1914).

102 Shetter v. Rochelle, supra note 70, 409 P.2d at 82-85;
Waltz & Scheuneman, Informed Consent to Therapy, 64
Nw. U.L. Rev. 628, 646 (1970).

3 Shetter v. Rochelle, supra note 70, 409 P.2d at 83-84.
See also Natanson v. Kline, supra note 12, 350 P.2d at 1106-
07; Hunter v. Burroughs, supra note 7, 96 S.E. at 369.

104 See text supra at notes 23-35, 74-79.

‘
s —

Pie ABODE LED AE Eh EAE Rp IR Rl IMTS TE

32a

factual issue on causality calls for an objective or a syb.
jective determination.

It has been assumed that the issue is to be resolved
according to whether the factfinder believes the patient's
testimony that he would not have agreed to the treatment if
he had known of the danger which later ripened into
injury.’ We think a technique which ties the factual con.
clusion on causation simply to the assessment of the
patient’s credibility is unsatisfactory. To be sure, the
objective of risk-disclosure is preservation of the patient's
interest in intelligent self-choice on proposed treatment, a
matter the patient is free to decide for any reason that
appeals to him.’%% When, prior to commencement of
therapy, the patient is sufficiently informed on risks and he
exercises his choice, it may truly be said that he did exactly
what he wanted to do. But when causality is explored at a
post-injury trial with a professedly uninformed patient, the
question whether he actually would have turned the treat-
ment down if he had known the risks is purely hypotheti-
cal: “Viewed from the point at which he had to decide,
would the patient have decided differently had he known
something he did not know?” *” And the answer which the
patient supplies hardly represents more than a guess, per-
haps tinged by the circumstance that the uncommunicated
hazard has in fact materialized.’

10 Plante, An Analysis of “Informed Consent,” 36 Ford-
ham L. Rev. 639, 666-67 (1968); Waltz & Scheuneman, /n-
formed Consent to Therapy, 64 Nw. U.L. Rev. 628, 646-48
(1970) ; Comment, Informed Consent in Medical Malprac-
tice, 55 Calif. L. Rev. 1396, 1411-14 (1967).

106 See text supra at notes 12-12.

107 Waltz & Scheuneman, Informed Consent to Therapy,
64 Nw. U.L. Rev. 628, 647 (1970).

108 Td. at 647.

.
PLE LINEN LESTE ILE EE ———

COPY ROLIND TOO |.

In our view, this method of dealing with the issue on
causation comes in second-best. It places the physician in
jeopardy of the patient’s hindsight and bitterness. It
places the fact-finder in the position of deciding whether
a speculative answer to a hypothetical question is to be
credited. It calls for a subjective determination solely on

testimony of a patient-witness shadowed by the occurrence
of the undisclosed risk.’
|

33a

Better it is, we believe, to resolve the causality issue on
an objective basis: in terms of what a prudent person in
the patient’s position would have cecided if suitably in-
formed of all perils bearing significance."° If adequate
disclosure could reasonably be expected to have caused that
person to decline the treatment because of the revelation
of the kind of risk or danger that resulted in harm, causa-
tion is shown, but otherwise not.’ The patient’s testimony
is relevant on that score, of course, but it would not
threaten to dominate the findings. And since that testimony
would probably be appraised congruently with the fact-
finder’s belief in its reasonableness, the case for a wholly
objective standard for passing on causation is strength-
ened. Such a standard would in any event ease the fact-
finding process and better assure the truth as its product.

Vill

In the context of trial of a suit claiming inadequate dis-
closure of risk information by a physician, the patient has
the burden of going forward with evidence tending to
establish prima facie the essential elements of the cause of
action, and ultimately the burden of proof—the risk of non-

109 Jd. at 646.
110 Jd. at 648.
111 See cases cited supra note 103.

lr fyQO IA POA OR

.
Somer veg

persuasion "*—on those elements.” These are normal im.
positions upon moving litigants, and no reason why they
should not attach in nondisclosure cases is apparent. The
burden of going forward with evidence pertaining to ,
privilege not to disclose," however, rests properly upon
the physician. This is not only because the patient has made
out a prima facie case before an issue on privilege is
reached, but also because any evidence bearing on the privi.
lege is usually in the hands of the physician alone. Reguir.
ing him to open the proof on privilege is consistent wit
judicial policy laying such a burden on the party who seeks
shelter from an exception to a general rule and who is mor
likely to have possession of the facts.’*

As in much malpractice litigation,"" recovery in nop.
disclosure lawsuits has hinged upon the patient's ability
to prove through expert testimony that the physician's per.
formance departed from medical custom. This is not sur
prising since, as we have pointed out, the majority of Amer.
ican jurisdictions have limited the patient's right to know
' to whatever boon can be found in medical practice.” We
have already discussed our disagreement with the majority

2 See 9 J. Wigmore, Evidence § 2485 (3d ed. 1940).

"8 See, ¢.g., Morse v. Moretti, supra note 101, 131 U.S.App.
D.C. at 158, 403 F.2d at 564; Kosberg v. W: Hosp.
Center, supra note 101, 129 U.S.App.D.C. at 324, 394 F.2d at
949; Smith v. Reitman, 128 U.S.App.D.C. 352, 353, 389 F.2d
303, 304 (1967).

™ See Part VI, supra.

" See 9 J. Wigmore, Evidence § 2486, 2488, 2489 (3d ed.
1940). See also Raza v. Sullivan, 139 U.S.App.D.C.
88, 432 F.2d 617, 619-21 (1970), cert. denied,
(1971).

™* See cases cited infra note 119.
"? See text supra at notes 37-39.

LO LI PII i — a —

ae
Ee

and seriousness
Save for
of this type
of ordinary human
for the expert is
however,
is that medical facts are for medical experts and other
” Lucy Webb Hayes Nat'l Training School v. Perotti, supra
note 56, 136 U.S.App.D.C. at 126-27, 419 F.2d at 708-09 (hos-
pital's failure to instal! safety glass in psychiatric ward) ; Al-
den v. Providence Hosp., 127 U.S.App.D.C. 214, 217, 382 F.2d
168, 166 (1967) (caliber of medical diagnosis); Brown v

supra note 16, 177 US.App.D.C. at 1

Keaveny,
F.2d at 661 (caliber of medical treatment) ;

Thurston, supra note 16, 110 U.S.App.D.C. at 1

F.2d at 362-64 (sufficiency of medical attendance
of medical treatment); Rodgers v. Lawson,
& US.App.D.C. at 285-86, 170 F.2d at 161
of medical attendance, and caliber of medical
treatment): Byrom v. Eastern Dispensary
supra note 59, 78 U.S.App.D.C. at 43, 136 F
ber of medical treatment), Christie v. Callahan,
DC. 188, 136, 124 F.2d 825, 828 (1941) (caliber
treatment); Carson v. Jackson, 52 App.D.C. 51,
411, 415 (1922) (caliber of medical treatment).

2 See cases cited swpra note 119.

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note 56, 136 U.S.App.D.C. at 127-29, 419 F.2d at 709-11 (per-
mitting patient to wander from closed to open section of pay.
chiatric ward); Monk v. Doctors Heap.. supra note 5%, IN
U.S.App.D.C. at 177, 403 F.2d at 583 (operation of eectre
surgical machine) ; Washington Hosp. Center v.

119, 75 U.S.App.D.C. at 136, 124 F.2d at 828; Sweeney +.
Erving, 35 App.D.C. 57, 62,
eff d, 228 U.S. 233 (1913).
"2 See Waltz & Scheuneman. / nf.
64 Nw. U.L. Rev. 628, 645, 647 (1970) ; Comment, /xformal
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majority." Appellant was nineteen years old when th
laminectomy and related events occurred, and he filed his
complaint roughly two years after he reached twenty-one
Consequently, any claim in suit subject to the one-year lim.
itation came too late.

Appellant’s causes of action for the allegedly faulty
laminectomy by Dr. Spence and allegedly careless post.
operative care by the hospital present no problem. Quite
obviously, each was grounded in negligence and so was
governed by the three-year provision."* The duty-to.
disclose claim appellant asserted against Dr. Spence, hov.
ever, draws another consideration into the picture. We
have previously observed that an unauthorized operation
constitutes a battery, and that an uninformed consent to
an operation does not confer the necessary authority.”
If, therefore, appellant had at stake no more than a recov.
ery of damages on account of a laminectomy intentionally
done without intelligent permission, the statute would have
interposed a bar.

It is evident, however, that appellant had much more at
stake." His interest in bodily integrity commanded pro-
tection, not only against an intentional invasion by an w-
authorized operation ™ but also against a negligent inva-

127D.C. Code § 12-302(a)(1) (1967). See also Carson v.
Jackson, supra note 119, 52 App.D.C. at 53, 281 F. at 413.

128 See cases cited supra note 126.
129 See text supra at notes 32-36.

138° For discussions of the differences between battery and
negligence actions, see, McCoid, A Reappraisal of Liability
for Unauthorized Medical Treatment, 41 Minn. L. Rev. 381,
423-25 (1957) ; Comment, Jnformed Consent in Medical Mal
practice, 55 Calif. L. Rev. 1396, 1399-1400 n.18 (1967) ; Note
75 Harv. L. Rev. 1445, 1446 (1962).

131 See Natanson v. Kline, supra note 12, 350 P.2d at 1100;
Restatement (Second) of Torts §§ 13, 15 (1965).

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39a

sion by his physician’s dereliction of duty to adequately
disclose." Appellant has asserted and litigated a violation
of that duty throughout the case." That claim, like the
others, was governed by the three-year period of limitation

ieable to negligence actions ™ and was unaffected by
the fact that its alternative was barred by the one-year
period pertaining to batteries.”

x

This brings us to the remaining question, common to all
three causes of action: whether appellant’s evidence was of
such caliber as to require a submission to the jury. On the
first, the evidence was clearly sufficient to raise an issue
as to whether Dr. Spence’s obligation to disclose informa-
tion on risks was reasonably met or was excused by the

182 The obligation to disclose, as we have said, is but a part
of the physician’s genera) duty to exercise reasonable care
for the benefit of his patient. See Part III, supra.

13 Thus we may distinguish Morfessis v. Baum, 108 U.S.
App.D.C. 303, 305, 281 F.2d 938, 940 (1960), where an ac-
tion labeled one for abuse of process was, on analysis, found
to be really one for malicious prosecution.

1% See Maercklein v. Smith, 129 Colo. 72, 226 P.2d 1095,
1097-98 (en banc 1954) ; Hershey v. Peake, 115 Kan. 562, 223
P. 1113 (1924); Mayor v. Dowsett, 240 Ore. 196, 400 P.2d
234, 250-51 (en bane 1965); McCoid, A Reappraisal of Lia-
bility for Unauthorized Medical Treatment, 41 Minn. L. Rev.
$81, 424-25, 434 (1957) ; McCoid, The Care Required of Med-
ical Practitioners, 12 Vand. L. Rev. 586-87 (1959); Plante,
An Analysis of “Informed Consent,” 36 Fordham L. Rev.
639, 669-71 (1968) ; Comment, Informed Consent in Medical
Malpractice, 55 Calif. L. Rev. 1396, 1399-4100 n.18 (1967) ;
Note, 75 Harv. L. Rev. 1445, 1446 (1962).

5 See Mellon v. Seymoure, 56 App.D.C. 301, 303, 12 F.2d
836, 837 (1926) ; Pedesky v. Bleiberg, 251 Cal.App.2d 119, 59
Cal.Rptr. 294 (1967).

Fillet on EI tt

40a

surrounding circumstances. Appellant testified that Dr
Spence revealed to him nothing suggesting a hazard asso.
ciated with the laminectomy. His mother testified that, ip
response to her specific inquiry, Dr. Spence informed her
that the laminectomy was no more serious than any other
operation. 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.** There was no emergency to
frustrate an opportunity to disclose,” and Dr. Spence’s
expressed opinion that disclosure would have been unwise
did not foreclose a contrary conclusion by the jury. There
was no evidence that appellant’s emotional makeup was
such that concealment of the risk of paralysis was medic.
ally sound." Even if disclosure to appellant himself might
have bred ill consequences, no reason appears for the
omission to communicate the information to his mother,

136 See text supra at notes 81-90.
137 See text supra at notes 91-92.

138 See Part VI, supra. With appellant’s prima facie case
of violation of duty to disclose, the burden of introducing evi-
dence showing a privilege was on Dr. Spence. See text supra
at notes 114-15. Dr. Spence’s opinion—that disclosure is med-
ically unwise—was expressed as to patients generally, and
not with reference to traits possessed by appellant. His ex-
planation was:

I think that I always explain to patients the operations
are serious, and I feel that any operation is serious. !
think that I would not tell patients that they might be
paralyzed because of the small percentage, one per cent,
that exists. There would be a tremendous percentage of
people that would not have surgery and would not
therefore be benefited by it, the tremendous percentage
that get along very well, 99 per cent.

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particularly in view of his minority.** The jury, not Dr.
Spence, was the final arbiter of whether nondisclosure was
reasonable under the circumstances."

Proceeding to the next cause of action, we find evidence
generating issues as to whether Dr. Spence performed the
laminectomy negligently and, if so, whether that negligence
contributed causally to appellant’s subsequent disabilities.
A report Dr. Spence prepared after the second operation
indicated that at the time he felt that too-tight sutures at
the laminectomy site might have caused the paralysis.
While at trial Dr. Spence voiced the opinion that the su-
tures were not responsible, there were circumstances lend-
ing support to his original view. Prior to the laminectomy,
appellant had none of the disabilities of which he now
complains. The disabilities appeared almost immediately
after the laminectomy. The gusset Dr. Spence made on the
second operation left greater room for the spinal cord to
pulsate, and this alleviated appellant’s condition somewhat.
That Dr. Spence’s in-trial opinion was hardly the last word
is manifest from the fact that the team of specialists con-
sulting on appellant was unable to settle on the origin of
the paralysis.

We are advertent to Dr. Spence’s attribution of appel-
lant’s disabilities to his condition preexisting the laminec-
tomy, but that was a matter for the jury. And even if the
jury had found that theory acceptable, there would have
remained the question whether Dr. Spence aggravated the
preexisting condition. A tortfeasor takes his victim as he

See Part VI, supra. Since appellant’s evidence was
that neither he nor his mother was informed by Dr. Spence
of the risk of paralysis from the laminectomy, we need not
decide whether a parent’s consent to an operation on a nine-
teen-year-old is ordinarily required. Compare Bonner v. Mo-
ran, supra note 32, 75 U.S.App.D.C. at 157-58, 126 F.2d at
122-23.

See Part V, supra.

42a

finds him, and negligence intensifying an old condition
creates liability just as surely as negligence precipitating
a new one.'' It was for the jury to say, on the whole eyj.
dence, just what contributions appellant’s preexisting cop.
dition and Dr. Spence’s medical treatment respectively
made to the disabilities.

In sum, judged by legal standards, the proof militated
against a directed verdict in Dr. Spence’s favor. True it is
that the evidence did not furnish ready answers on the dis.
positive factual issues, but the important consideration is
that appellant showed enough to call for resolution of
those issues by the jury. As in Sentilles v. Inter-Caribbean
Shipping Corporation, a case resembling this one, the
Supreme Court stated,

The jury’s power to draw the inference that the
aggravation of petitioner’s tubercular condition, evi-
dent so shortly after the accident, was in fact caused by
that accident, was not impaired by the failure of any
medical witness to testify that it was in fact the cause.
Neither can it be impaired by the lack of medical
unanimity as to the respective likelihood of the poten-
tial causes of the aggravation, or by the fact that other
potential causes of aggravation existed and were not
conclusively negated by the proofs. The matter does
not turn on the use of a particular form of words by
the physicians in giving their testimony. The members
of the jury, not the medical witnesses, were sworn to
make a legal determination of the question of causa-
tion. They were entitled to take all the circumstances,
including the medical testimony, into consideration.*

141 Bourne v. Washburn, 142 U.S.App.D.C. 332, 336, 441
F.2d 1022, 1026 (1971); Clark v. Associated Retail Credit
Men, 70 App.D.C. 183, 187, 105 F.2d 62, 66 (1939); Balti-
more & O.R.R. v. Morgan, 35 App.D.C. 195, 200-01 (1910);
Washington A. & M.V. Ry. v. Lukens, 32 App.D.C. 442, 453-54
(1909).

142 361 U.S. 107 (1959).

143 Jd. at 109-10 (footnote omitted).

SJ? FPO Fe PAPAS ee ee UO

43a

We conclude, lastly, that the case against the hospital
should also have gone to the jury. The circumstances sur-
rounding appellant’s fall—the change in Dr. Spence’s order
that appellant be kept in bed,’* the failure to maintain a
side rail on appellant’s bed, and the absence of any attend-
ant while appellant was attempting to relieve himself—
could certainly suggest to jurors a dereliction of the hospi-
tal’s duty to exercise reasonable care for the safety and
well-being of the patient.* On the issue of causality, the
evidence was uncontradicted that appellant progressed
after the operation until the fall but, a few hours there-
after, his condition had deteriorated, and there were com-
plaints of paralysis and respiratory difficulty. That falls
tend to cause or aggravate injuries is, of course, common
knowledge, which in our view the jury was at liberty to
utilize*° To this may be added Dr. Spence’s testimony
that paralysis can be brought on by trauma or shock. All
told, the jury had available a store of information enabling
an intelligent resolution of the issues respecting the hos-
pital.’*

We realize that, when appellant rested his case in chief,
the evidence scarcely served to put the blame for appel-
lant’s disabilities squarely on one appellee or the other.
But this does not mean that either could escape liability at

44 Even if Dr. Spence himself made the change, the result
would not vary as to the hospital. It was or should have been
known by hospital personnel that appellant had just under-
gone a serious operation. A jury might fairly conclude that
at the time of the fall he was in no condition to be left to fend
for himself. Compare Washington Hosp. Center v. Butler,
supra note 48, 127 U.S.App.D.C. at 385, 384 F.2d at 337.

143 Compare id. See also cases cited supra note 121.
46 See id. at 383-85, 384 F.2d at 335-37.

47 See id.

44a

the hand of the jury simply because appellant was unable
to do more. As ever so recently we ruled, “a showing of
negligence by each of two (or more) defendants with yp.
certainty 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.” “* Jp
the case before us, appellant’s evidentiary presentation on
negligence survived the claims of legal insufficiency, and
appellees should have been put to their proof.”

Reversed and remanded for
a new trial.

148 Bowman v. Redding & Co., —— U.S.App.D.C. —,
, 449 F.2d 956, 967 (1971).

148 Appellant’s remaining points on appeal require no elab-
oration. He contends that his counsel, not the trial judge,
should have conducted the voir dire examination of prospec-
tive jurors, but that matter lay within the discretion of the
judge. Fed.R.Civ.P. 47(a). He argues that Mrs. Canterbury,
a rebuttal witness, should not have been excluded from the
courtroom during other stages of the trial. That also was
within the trial judge’s discretion and, in any event, no preju-
dice from the exclusion appears. He complains of the trial
judge’s refusal to admit into evidence by-laws of the hospital
pertaining to written consent for surgery, and the judge’s re-
fusal to permit two physicians to testify as to medical custom
and practice on the same general subject. What we have al-
ready said makes it unnecessary for us to deal further with
those complaints.

= — — . oc ean eared

Peat COPY BOUND TOO C

lb
APPENDIX B

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 22,099 September Term, 1971

Jerry W. Canterbury,
Appellant
v.
William Thornton Spence and
The Washington Hospital Center, a
body corporate,
Appellees

Before: Wright, Leventhal and Robinson, Circuit
Judges.

ORDER
On consideration of appellees’ petition for rehear-
ing, it is
ORDERED by the Court that appellees’ aforesaid
petition is denied.

Per Curiam
For the Court:

/s/ NATHAN J. PAULSON
Clerk

uly Ab, 1GI&

OSE IN CENTER

me oyl ae aici

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1517%3A1. Public record. Not legal advice.