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06/09/78 David E. Henderson, v. Louis Milobsky

June 9, 1978

DAVID E. HENDERSON, APPELLANT

v.

LOUIS MILOBSKY 1978.CDC.85 DATE DECIDED: JUNE 9, 1978



Before BAZELON, LEVENTHAL and ROBINSON, Circuit Judges.

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia Circuit (D.C.Civil Action No. 75-1776).

APPELLATE PANEL:

Opinion for the Court filed by Circuit Judge ROBINSON.

Opinion concurring in part and dissenting in part filed by LEVENTHAL, Circuit Judge.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBINSON

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 decision. *fn1 We conclude, however, that the jury should have been allowed to determine whether the procedure was executed with due care. We accordingly reverse and remand for a new trial. 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. *fn2 Dr. Harold Stevens, a neurologist, expressed the opinion that this condition paresthesia was caused by injury to the alveolar nerve when the wisdom tooth on that side was removed. *fn3 Appellant testified that he was not told that paresthesia might result, *fn4 while appellee avowed that he was. *fn5

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. *fn6 On appellant's claim of negligent treatment, the court could find no evidence tending to show any departure from standard dental practice that might have contributed to paresthesia. We analyze these issues in turn. II A

In Canterbury v. Spence, *fn7 this court subscribed to the principle that a physician's due-care duty to his patient extends to disclosure of "all risks potentially affecting the (patient's) decision" to submit to a medical procedure. *fn8 The "root premise" for this obligation is the patient's " "right to determine what shall be done with his own body . . . ,' " *fn9 and the need for information bearing on that determination. *fn10 On the evidence before us in Canterbury, we held that whether the physician had unreasonably failed to reveal a highly serious consequence expectable in one percent of all operations of the type performed on the patient was a question for the jury. *fn11 We reached that conclusion after first adumbrating a "general outline of legal doctrine on the subject" of physicians' negligent participation or failure to participate in patients' medical decisionmaking, but we reserved for future litigation doctrinal refinement newly arising situations would inevitably necessitate. *fn12

Our only post-Canterbury decision in the area is Haven v. Randolph, *fn13 which pivoted on one aspect of a rejected risk-disclosure claim. Appellee argues that Haven overruled Canterbury, *fn14 but we think it clear that nothing in Haven undercut Canterbury in the least. Though in Haven we affirmed, without discussion, *fn15 on the basis of a pre-Canterbury District Court opinion *fn16 in some respects inconsistent with Canterbury, the District Court had relied on a number of alternative grounds, *fn17 and our opinion in Haven did not specifically approve any particular ground, and certainly no position out of harmony with Canterbury. *fn18

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 by breach of that duty cannot be demonstrated simply by the claimant's unadorned hindsight-statement that had he known of the risk he would not have consented to the procedure. *fn19 Haven merely ...


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