Does a physician breach a legal duty to a patient by failing to disclose a material risk of paralysis inherent in a proposed operation, where the scope of that duty is measured by the patient's informational needs rather than by prevailing medical custom?

Jerry Canterbury, a nineteen-year-old FBI clerk-typist, suffered severe pain between his shoulder blades. After general practitioners failed to relieve it, he consulted neurosurgeon Dr. William Spence, whose examination and x-rays found nothing, but a myelogram at Washington Hospital Center revealed a filling defect near the fourth thoracic vertebra. Dr. Spence recommended a laminectomy to correct a suspected ruptured disc. Canterbury did not probe the nature of the operation. Dr. Spence told Canterbury's mother, by phone, that the surgery was "not anymore than any other operation," and that she need not travel to Washington. Dr. Spence did not disclose a risk of paralysis, which he later testified occurs in about one percent of laminectomies.

After the operation, Canterbury recuperated normally for about a day. He then fell from his hospital bed while voiding, unattended, with no side rail and after his bed-rest order had been changed. Hours later he was paralyzed from the waist down and underwent a second operation. He was left with paralysis of the bowels, urinary incontinence, and a need for crutches. He sued Dr. Spence for negligent performance of the laminectomy and negligent failure to disclose the risk, and the hospital for negligent post-operative care.

Canterbury sued in the United States District Court for the District of Columbia on March 7, 1963, asserting multiple causes of action against Dr. Spence and the hospital. Both defendants answered, denying negligence and pleading the statute of limitations. Pretrial discovery and delays consumed five years. At the close of Canterbury's case in chief, the trial judge granted both defendants' motions for directed verdicts. The judge reasoned that Canterbury had produced no medical evidence of negligence in diagnosis or performance of the laminectomy, no proof that Dr. Spence's treatment caused his disabilities, and no medical testimony of causation against the hospital. The judge did not address the alleged failure to disclose. Canterbury appealed to the United States Court of Appeals for the District of Columbia Circuit.

(Robinson, J.)

Yes. The failure to disclose a material risk of paralysis made out a prima facie case of breach of the physician's duty to disclose, and the standard for that duty is set by law, not by medical custom.

The duty rests on the principle that every adult of sound mind has the right to determine what is done to his own body. Genuine consent requires an informed choice, and the lay patient depends on the physician for the information to make it. The disclosure duty is part of the physician's duty of reasonable care and of the fiduciary character of the physician-patient relationship. It is not a new substantive tort so much as a shift in doctrinal emphasis from the battery rule that unauthorized treatment is actionable.

The majority rule, which ties the duty's existence and scope to professional custom, is rejected. Whether any real custom exists is doubtful, and a custom of silence would hand the disclosure decision to physicians alone. Medical custom is evidence of due care only where medical judgment is called into play, and the decision to disclose is often non-medical. The test is therefore reasonableness under the circumstances.

The scope of disclosure is measured by materiality to the patient's decision. A risk is material when a reasonable person in what the physician knows or should know to be the patient's position would likely attach significance to it in deciding whether to forgo the treatment. A very small chance of death or serious disablement may be material, and the question is generally for the factfinder. Causation is judged objectively: whether a prudent person in the patient's position would have declined the treatment if adequately informed.

Two privileges excuse disclosure: a genuine emergency where the patient cannot consent, and a sound medical judgment that disclosure would seriously threaten the patient's well-being. The physician bears the burden of going forward on privilege. Expert testimony is not needed to show nondisclosure, the patient's ignorance, or materiality.

Canterbury's claim was governed by the three-year negligence limitation, so it was timely. Evidence also supported jury issues on negligent performance of the laminectomy and on the hospital's negligent care, so the directed verdicts are reversed and the case is remanded for a new trial.