595 F.2d 654 | D.C. Cir. | 1978
Lead Opinion
Opinion for the Court filed by Circuit Judge ROBINSON.
Opinion concurring in part and dissenting in part filed by LEVENTHAL, Circuit Judge.
We review here the District Court’s grant of a directed verdict for a dental surgeon in a malpractice suit brought by a patient. We agree with the court that the patient failed to make out a prima facie case of actionable nondisclosure of medical risk within the ambit of our Canterbury deci
I
In August of 1974, appellant went to the office of a Dr. Aaronson for a routine dental checkup. Dr. Aaronson x-rayed and cleaned appellant’s teeth and, because both of his lower wisdom teeth were impacted, referred him to appellee, an oral surgeon. Thereafter, in consultation with appellee, appellant was told that those teeth would have to be removed, and a date for commencement of the process was set. At the appointed time, appellant’s right lower wisdom tooth was taken out and, about two weeks later, so was the other. This litigation was bred by events accompanying the first extraction.
For three or four months after that extraction, appellant was totally insensate in his right jaw and lips. Over the next eight or nine months, the numbness diminished somewhat but not completely. At trial, nearly two years after the extraction, sensation remained impaired in an area measuring about a half-inch square just below the lower right lip.
Appellant, charging malpractice in two aspects, sued in the District Court for damages. At the conclusion of his case in chief, the court directed a verdict in favor of appellee. The court concluded, on the one hand, that appellee was under no duty to inform appellant of the risk of paresthesia.
II
A
In Canterbury v. Spence,
Our only post-Canterbury decision in the area is Haven v. Randolph,
Haven did not, however, add anything really novel to our jurisprudence on risk-disclosure. In result, it merely reemphasized the claimant’s burden of showing that the alleged breach of duty to disclose led to the injury for which compensation is sought. In Canterbury we had held that when damages are sought for a condition attributed to a medical procedure, causation
B
Appellant’s complaint is that he suffers from permanent paresthesia of a portion of his face and that the extraction of the first wisdom tooth was responsible therefor. The District Court directed a verdict for appellee at the close of appellant’s evidence, apparently reasoning that neither the risk of temporary nor of permanent paresthesia was significant enough to give rise to a duty to disclose.
Looking first to potential recovery on the theory of breach of duty to disclose the risk of temporary paresthesia,
This case in essence is much like Haven, for although appellant said in hindsight that had he known he would have declined to proceed,
Moving now to the risk of permanent paresthesia, we agree completely with the District Court that the facts shown by the evidence, viewed with maximum favor to appellant,
C
The District Court must thus be affirmed on the issue of nondisclosure. The purpose of the Canterbury cause of action is to protect the patient’s dignity and free will; it is not an avenue to compensation every time a medical procedure goes awry. There remains, however, the more troubling issue of negligent performance of the first extraction itself.
Ill
A
Several successive procedures customarily attend the removal of an impacted wisdom tooth such as appellant’s. The methodology
The next step, following anesthetization of the area, is a splitting of the tooth, its severance from the jawbone and its removal piece by piece.
Surgery of this type necessitates the use of pressure, the amount of which must vary from patient to patient.
The final step in extraction of an impacted wisdom tooth is removal of tooth and bone chips from, and irrigation of, the socket thus left open.
B
At trial in this case, the evidence was conflicting on whether in all respects this medically established mode of procedure
In this milieu the jury, had it been permitted to consider the evidence, could have concluded that appellee derived no insight from Dr. Aaronson’s films and neglected to make any himself. Accepted medical procedure called for a pre-extraction x-ray;
C
There was, too, evidence by which the jury might have been persuaded that appellee deviated from the professional norm in applying force to remove the tooth and in the manner in which he probed the socket. Appellant’s testimony vividly depicted heavy pressure to achieve extraction and extensive post-extraction probing in a fruitless search for roots:
I became very apprehensive because, even with the anesthetic, the amount of pushing down in my lower jaw made it feel like, to me, that my jaw was going to come apart here (indicating) like, you know, he was just going to keep pushing and pushing and twisting on that tooth until he cracked my jaw or something.67 ******
[¶] e was pressing sufficiently hard . that I just felt like my head and my jaw — like it was going to come apart because he was pressing so hard in getting in there and coming down to it.68 ******
[I] t seemed like after about twenty minutes or fifteen minutes there was a loud crack; and I guess that’s when he broke the tooth off and got the tooth.
And then he started poking around again and, oh, five or ten minutes — I don’t know — or longer, with a sharp in*662 strument, he just kept poking my gum and so on.69
******
And then finally he said ... “I can’t find the roots,” or something to that effect, like he was looking for the roots of the tooth that had been cracked off when he pulled the top off.
And he said, “We are going to have to take another x-ray” or he said, “We’re going to have to take an x-ray.”
So then they came in and they took an x-ray. . . . [H]e looked at the x-ray and he said, “Oh, damn, the roots aren’t there,” something like “They’re disappeared.”70
******
When he looked at the x-ray, he said, “Oh, damn, there’s no roots,” or something to that effect. You know, “I thought the roots were there.”71
The importance of this testimony becomes the more apparent when viewed against the backdrop of appellant’s dental anatomy. A lower right wisdom tooth is very close to the alveolar nerve
Appellant’s portrayal of the force and probing involved in removal of his first wisdom tooth attains perhaps its fullest significance in light of the normal outcome of that procedure, which appellee described at trial. Ordinarily, such extractions are unaccompanied by any paresthesia whatever;
The burden was upon appellant to present evidence tending to prove that appellee was negligent
Appellee, an expert, explained adequately enough for lay understanding the norms of relevant dental practice and the interplay of the medical phenomena involved. Two theories of breach of duty were advanced by the evidence and, though with little room to spare, were appreciably supported by it. A causal relationship of any negligence with appellant’s paresthesia was the view of Dr. Stevens, another expert, who attributed appellant’s paresthesia to injury to the alveolar nerve during the course of the first extraction,
Combinationally, then, these qualities of appellant’s evidentiary presentation rendered it invulnerable to direction of a verdict on either of his two approaches toward negligent-treatment recovery. In dealing with appellee’s motion therefor, the District Court was required to yield to appellant the view of the evidence most favorable to him and the benefit of all legitimate inferences flowing therefrom,
So ordered.
. Canterbury v. Spence, 150 U.S.App.D.C. 263, 464 F.2d 772, cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972).
. Trial Transcript (Tr.) 73.
. Tr. 74. See also Tr. 60, 69 (appellee’s testimony). Dr. Stevens explained that the mandibular branch of the trigeminal nerve was involved in the loss of sensation, and that the alveolar nerve is a branch of the mandibular. Tr. 74.
. Tr. 29.
. Tr. 41.
. See Tr. 97.
. Supra note 1.
. 150 U.S.App.D.C. at 278, 464 F.2d at 787. In Canterbury we dealt with a physician who had neither explained the risk in question nor warned of it. Thus, although our discussions both there and here use as shorthand the phrase “duty to disclose,” we do not mean to imply that a medical-arts practitioner may not fulfill his disclosure obligation by offering to elucidate the purpose and nature of the proposed treatment, the alternatives and the risks. See Goldstein, For Harold Lasweli: Some Reflections on Human Dignity, Entrapment, Informed Consent, and the Plea Bargain, 84 Yale L.J. 683, 691-692 (1975). Because “the patient’s right of self-decision shapes the boundaries of the duty to reveal,” Canterbury v. Spence, supra note 1, 150 U.S.App.D.C. at 277, 464 F.2d at 786, physicians and courts alike must accept the patient’s election to know nothing and instead to rely completely upon the physician, as well as his choice to learn everything material to a reasonably informed independent decision, for the patient, as Canterbury makes clear, is free to unwisely act in the dark so long as he is exercising his own “right of self-determination.” Id. at 275, 464 F.2d at 784; accord, id. at 271-272, 277-278, 281, 464 F.2d at 780-781, 786-787, 790. See also Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2540-2541, 45 L.Ed.2d 562, 581 (1975) (accused has right to defend himself in criminal prosecution; “although he may conduct his
. 150 U.S.App.D.C. at 271, 464 F.2d at 780, quoting Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 129, 105 N.E. 92, 93 (1914).
. Canterbury v. Spence, supra note 1, 150 U.S.App.D.C. at 271 & n.15, 464 F.2d at 780 & n.15.
. Id. at 285, 464 F.2d at 794.
. Id. at 271 n.ll, 464 F.2d at 780 n.ll.
. 161 U.S.App.D.C. 150, 494 F.2d 1069 (1974), aff'g, 342 F.Supp. 538 (D.D.C.1972). The District of Columbia Court of Appeals has not yet had occasion to speak in this area of law, but we note that other jurisdictions have increasingly adopted the views expressed in Canterbury. Seidelson, Medical Malpractice: Informed Consent in “Full-Disclosure” Jurisdictions, 14 Duquesne L.Rev. 309, 312 (1976). See also id. at 309-311 n.1-2 (breakdown of jurisdictions accepting the rejecting Canterbury).
. We might remind at the outset that one panel of this court does not override the decision of another, United States v. Caldwell, 178 U.S.App.D.C. 20, 56 n. 19, 543 F.2d 1333, 1369 n.19 (1974) (supplemental opinion), cert. denied, 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976), and cases there cited.
. On the risk-disclosure point, the Haven opinion states merely that the panel “repied] primarily on the findings and reasoning set out in” the District Court’s opinion. Haven v. Randolph, supra note 13, 161 U.S.App.D.C. at 151, 494 F.2d at 1070 (emphasis supplied).
. Haven v. Randolph, supra note 13, filed one day prior to rendition of our opinion in Canterbury.
. See 342 F.Supp. at 542-544.
. See note 15 supra.
. Canterbury v. Spence, supra note 1, 150 U.S.App.D.C. at 281-282, 464 F.2d at 790-791. See also note 26 infra.
. J. App. 97.
. Notwithstanding appellant’s specific demand for damages for permanent paresthesia, he may recover more limitedly for temporary paresthesia if the case therefor meets all legal requirements. See Pickus v. Board of Parole, 165 U.S.App.D.C. 284, 287, 507 F.2d 1107, 1110 (1974); Kahan v. Rosenstiel, 424 F.2d 161, 174 (3d Cir.), cert. denied, 398 U.S. 950, 90 S.Ct. 1870, 26 L.Ed.2d 290 (1970); Fed.R.Civ.P. 54(c). See also note 24 infra.
. E. g., W. Prosser, Law of Torts, § 30, at 143 (4th ed. 1971).
. See text infra at notes 33-34.
. Whether appellant’s paresthesia is to any extent permanent, in the sense that it will never disappear completely, remains an open question on the present record. The evidence at trial demonstrated its persistence two years after the extraction, but appellee opined that it might linger for as much as three and testified that he had never encountered paresthesia more enduring than that. J. App. 59. Dr. Stevens, the only other expert witness, expressed no view on permanence. J. App. 73-74.
. J. App. 39.
. The situation at bar exemplifies the very concern we identified in Canterbury. 150 U.S. App.D.C. at 281-282, 464 F.2d at 790-791. There we explained that, standing alone, the patient’s unsupported statement that he would have foregone the treatment had he known of a risk undisclosed by the physician is too shaky an evidentiary basis to carry the case to the jury on the issue of causation. Id. Here the statement was made despite overt conduct plainly belying it.
. J. App. 30.
. J. App. 29.
. We are mindful that after the first extraction and before the second, appellant testified, he asked appellee’s receptionist about the numbness on the right side of his face and was then told, as appellee himself was later to advise, that it probably would eventually disappear. J. App. 29, 35. We recognize, too, that when the patient affirmatively inquires about the risks of proposed treatment, misrepresentation or concealment on the physician’s part presents a situation quite different from that encountered in a negligent performance of the due-care duty to volunteer certain information. Cf, e. g., Emmett v. Eastern Dispensary & Cas. Hosp., 130 U.S.App.D.C. 50, 396 F.2d 931 (1967). Here, however, from aught that appears of record, the responses to appellant’s questions were full, frank and not inaccurate. See note 24 supra; Canterbury v. Spence, supra note 1, 150 U.S.App.D.C. at 278 n.84, 464 F.2d at 787 n.84.
. See note 92 infra and accompanying text.
. See Canterbury v. Spence, supra note 1, 150 U.S.App.D.C. at 277-279, 464 F.2d at 786-788.
. Id. at 279 & n.86, 464 F.2d at 788 & n.86.
. J. App. 47 — 48.
. Moreover, as we discuss later, see Part III infra, this evidence might well indicate to a jury that these few maloccurrences were products of negligence and not risks inherent in the procedure when properly done. A normal possibility of negligence is one “of which persons of average sophistication are aware,” Canterbury v. Spence, supra note 1, 150 U.S.App.D.C. at 279, 464 F.2d at 788, and appellant makes no argument that he is below average and that appellee should have realized it.
. 150 U.S.App.D.C. at 269, 464 F.2d at 778.
. See id. at 278, 464 F.2d at 787. Nor is it contended that the failure to inquire affirmatively into that need was unreasonable in this situation. See Katz, Informed Consent — A Fairy Tale? Law’s Vision, 39 U.Pitt.L.Rev. 137, 147, 159-160 (1977).
. Tr. 40-70.
. Tr. 41, 61.
. Tr. 48.
. Tr. 42 — 44, 49-50.
. Tr. 23, 42.
. Tr. 43-44, 53.
. Tr. 43, 49-50.
. Tr. 49, 52-53.
. Tr. 53. See also Tr. 66.
. Tr. 46.
. Tr. 46.
. Tr. 50.
. Tr. 64-69. See also text infra at notes 72-75.
. Tr. 50.
. Tr. 50-51.
. Tr. 54, 55.
. Tr. 55-56.
. Tr. 54.
. Tr. 61, 69.
. Tr. 29; see text infra at notes 70-71.
. Tr. 24-25.
. Tr. 24-25.
. Tr. 70.
. Tr. 70.
. See text supra at notes 37-39.
. See text supra at notes 58-60.
. See text supra at notes 55-56.
. See text supra at notes 38-39.
. See text infra at notes 69-71.
. See text supra at notes 52-54.
. Tr. 25-26.
. Tr. 36.
. Tr. 26.
. Tr. 26-27.
. Tr. 28.
. Tr. 43, 44, 46.
. Tr. 46.
. Tr. 45, 63.
. Tr. 44-45, 63-64.
. See text supra at notes 47-51.
. Tr. 47.
. See Tr. 47-48, 68.
. Tr. 41.
. Tr. 47.
. Tr. 47, 59.
. Tr. 47 — 48; see text accompanying notes 33-34 supra.
. Tr. 69. See also Tr. 47, 74.
. Tr. 64.
. Tr. 50-51. See also Tr. 67-68.
. See text supra at note 67.
. See text supra at notes 49-51.
. Latta v. Sabin, 117 U.S.App.D.C. 329, 330, 329 F.2d 897, 898 (1964); Quick v. Thurston, 110 U.S.App.D.C. 169, 171, 290 F.2d 360, 362, 88 A.L.R.2d 299 (en banc 1961); Rodgers v. Lawson, 83 U.S.App.D.C. 281, 282, 170 F.2d 157, 158 (1948); Hohenthal v. Smith, 72 App. D.C. 343, 346, 114 F.2d 494, 497 (1940).
. Morse v. Moretti, 131 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 (1914).
. See cases cited note 88 supra.
. See text supra at note 3. Compare Kosberg v. Washington Hosp. Center, supra note 89, 129 U.S.App.D.C. at 324-325, 394 F.2d at 947-948.
. Baltimore & O. R.R. v. Postom, 85 U.S.App. D.C. 207, 209, 177 F.2d 53, 55 (1949); Watford v. McNeill, 69 App.D.C. 247, 248, 100 F.2d 112, 113 (1939); Jackson v. Capital Transit Co., 69 App.D.C. 147, 148, 99 F.2d 380, 381 (1938), cert. denied, 306 U.S. 630, 59 S.Ct. 464, 83 L.Ed. 1032 (1939); Fleming v. Fisk, 66 App. D.C. 350, 87 F.2d 747 (1937).
Concurrence in Part
concurring in part and dissenting in part:
I concur fully in Parts I and II of Judge Robinson’s opinion for the court. It is a useful and sound development of the doctrine of informed consent that he presented for the court in Canterbury v. Spence.
I have difficulties with Part III, which holds that a nonsuit was precluded by plaintiff’s evidence that defendant was negligent in the performance of the tooth extraction. I concur in section A, developing the record, and in section B, which finds a dispute in the evidence on the issue whether defendant x-rayed plaintiff’s jaw before beginning the extraction. As to this, the case comes up in a stilted way, the verdict having been directed for defendant at the end of plaintiff’s ease, so that the record does not contain the case that the defendant would have put on. Presumably that would
I dissent from Part III C of Judge Robinson’s opinion. If the evidence at a new trial should demonstrate that defendant did take a pre-extraction x-ray and that this was not a matter of genuine issue, I would not find the plaintiff’s testimony of excessive force sufficient to go to the jury. The source of my difficulty is the combination of two subjective elements — the plaintiff’s perception of defendant’s behavior (calling for subjective testimony by the plaintiff), and the standard against which that behavior is to be judged (established here by the subjective testimony of the defendant that the appropriate degree of pressure was a matter of “feel”). How can the subjective testimony of the plaintiff as to how he felt show a violation of the standard established by the subjective testimony of the doctor as to how he felt? Rooted in a general prohibition of jury verdicts based on mere speculation, the law has a concern that doctors who must make sensitive determinations of “feel” (and other sensations) should not be subject to damage suits on the basis solely of a layman’s, and especially a plaintiff’s, perception of what is excessive.
. 150 U.S.App.D.C. 263, 464 F.2d 772, cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972).
. If I were writing for the majority on this point, I would expand on the basis on which, assuming genuine issue on whether a pre-extraction x-ray was taken, the plaintiffs testimony on the defendant’s force and direction might (a) be admissible and (b) be presented to the jury. The matter has some subtleties, and in the current press of business I do not expatiate.