NEGLIGENCE – Canerbury v. Spence (1972)
464 F.2d 772
Author: ERL

Plaintiff, Appellant = Canterbury

Defendant, Appellee = Spence

Procedural History: P filed a complaint alleging negligence and a breach of a physician’s duty to disclose against D, and a charge of negligence in post-operative care against D’s employer (hospital).  Trial judge granted D’s motion for directed verdict.  P appealed.

Facts:  P consulted D for back pain. After a diagnostic procedure, D ascertained that P suffered from a ‘filling disorder’ and recommended a laminectomy.  D did not tell P the details of the surgery and P did not ask.  D told P’s mother that the operation was serious, but no more so than any other operation.  Upon the operation, D discovered that P’s spine was in much worse condition than originally though.  D did what he could, and P went to recuperation room in the hospital.  P was allowed to void unattended in recovery room.  P fell off of the bed, and several hours later experienced difficulty breathing and near-complete paralysis from the waist down.  D performed emergency surgery and P’s condition improved.  P now suffers from paralysis of the bowels and urinary incontinence.

Issues:  1)Was trial judge correct in granting D’s motion for directed verdict? >No.  Question should have been submitted to the jury.

            2)What constitutes a physician’s duty to disclose?

Other Issues: (left for new trial to determine)  Was D negligent in his duty to disclose by not informing P of the slight chance of paralysis that might have resulted from the operation?  Was D negligent in performing the operation?  Was D (if negligent) the proximate cause of the harmful condition from which P now suffers?  Was D’s employer hospital negligent in its post-operative care?

Holding: 1) Question presented are those for fact-finders and should have been asked of the jury.

              2) A duty to disclose generally centers on informing the patient in non-technical terms as to what is at stake; including therapy alternatives, goals expected to be achieved, risks that exist as part of the suggested treatment, no treatment, and of alternative treatments.

Rationale: The patient’s right to self-decision shapes the boundaries of a physicians duty to disclose.             Issue 1: P testified that he was not told of the hazards of the operation, his mother was not made aware of any unique seriousness or consequences of the operation, there was a one percent risk of paralysis involved with the operation, and no evidence was presented that P’s emotional status was such that concealing the risk of paralysis was medically sound.  Court did not like the argument D made, that the risk was so small that if he disclosed it to all of his patients, many more would reject treatment and not be benefited by it.  Issue 2:  Jury must determine if D violated the physician’s duty to disclose, and therefore must determine if there is a causal relationship between the concealed risk and the damage to the patient, and must determine so on the basis of foresight.  ‘Reasonable’ patient at the time when he made the decision to have the surgery.