Wednesday, August 1, 2012


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This supplements an earlier post at Canterbury.

Canterbury v. Spence is an historic case that had a significant impact on therapeutic privilege, the physician standard of care that permitted a physician to withhold information that he thought might lead the patient to decline treatment that the physician believed the patient needed.

On first impression, many in the medical community tend to view the case as unfair to the physician who was sued.  It was not unfair.  This explains some of the reasons why the decision was appropriate.

Canterbury underwent back surgery (a laminectomy) after his mother apparently consented to the surgery.  He was a minor at the time and it was necessary for his natural guardian--in this case his mother--to speak on his behalf.  The surgeon did not disclose the risk of paralysis to the mother at the time she gave her consent. 

After the surgery, Canterbury fell while recovering in the hospital and shortly after suffered paralysis.

Subsequently, Canterbury sued the surgeon and the hospital.  The judge in the trial court noted that the existing standard of care recognized by physicians allowed physicians to withhold treatment information from patients and directed a verdict in favor of the defendants, Dr. Spence and the hospital.  Canterbury appealed.

The appeal was heard by the Court of Appeals.  It will be recalled that a court of appeals [including a supreme court] does not retry the case or hear new testimony.  It only reviews the proceedings of the trial court for legal error.

In Canterbury, the Court concluded that the trial court erred when, among other things, it ruled that the existing standard of care that allowed therapeutic privilege--the physician's right to withhold treatment information that might influence a patient to decline needed care--protected Canterbury's doctor from a claim that he failed to obtain appropriate informed consent for the procedure.  Instead, the Court of Appeals held that a patient must be given all material facts necessary for him [or his guardian in this case] to give a valid consent.  The case was returned to the trial court for a new trial using the correct standard of disclosure of risks and consequences to patients.

What obscures the logic of this ruling and makes it seem unfair on first reading is that the surgeon probably performed the surgery properly and that the injury occurred when the patient was in the care of the hospital.

However, consider the case from the point of view of the patient before the injury in the hospital and before the surgery was performed.

Dr. Spence subsequently said that the risk of paralysis when he performs a laminectomy is 'very slight' and that only about one percent of patients suffer paralysis.

Sorry, doctor, but if one out of every hundred patients is paralyzed that does not seem like a remote or 'very slight' risk at all.  That seems like a very significant risk, and any patient facing the decision to have the surgery or, instead, continue with less risky alternative treatments should know that he might be the unlucky one out of one hundred who may be paralyzed by the procedure.

The surgeon's chief wrong in Canterbury was not that his patient was injured by a fall in the hospital while he was recovering from surgery.  The wrongful conduct was that the surgeon took it upon himself to expose his patient to a significantly elevated risk of paralysis without allowing his patient to have any say in the matter.  Once the patient was exposed to that elevated risk, the ultimate injury could have come from any one of multiple possible causes.  It was just happenstance that in this case it was a fall in the hospital, but by  imposing that risk on his patient without the patient's knowledge, the chances of paralysis of the patient is greatly increased from any of a large number of unknown and essentially unpredictable causes.  Canterbury should have been given the option of choosing to avoid those dangers altogether by not having the surgery.

Any one of us facing any medical procedure with a 1% risk of paralysis or other serious injury would want to be told of that risk when making a treatment decision.  That right of decision rests with the patient; not with the surgeon.  That is where Canterbury's doctor went wrong.  As the Court of Appeals said:

"The testimony of appellant [Canterbury] 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 explanation did not negate as a matter of law."

Dr. Spence had a duty to reveal the risk of paralysis to all of his laminectomy patients, and he clearly failed in that duty when he offered surgery to Canterbury.

By the way, just to put the 1% risk of paralysis into perspective, would anyone sky dive, bungee jump, or even drive to the grocery store if one out of every 100 hundred people suffered death or paralysis?  Would you want a sky diving instructor to tell you that one student out of every 100 is killed on his first jump before you decided to jump out of the plane?  A 1% risk of paralysis is significant.

Monday, February 6, 2012


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The Handouts list several legal actions other than medical malpractice.  Two of those are TRO and Injunction.

A TRO (Temporary Restraining Order) can be signed by a judge to temporarily stop an action that can cause irreparable harm.  Once the action is blocked, a hearing will be scheduled to hear all parties on the question whether the TRO should be lifted or made a permanent injunction.

 Here is a genuine court complaint seeking a court order to prevent termination of health care.
Petition for Restraining Order and Injunction

Saturday, February 4, 2012

Legal Duty Not to Fire Bottle Rocket from Anus

Interesting account of a lawsuit arising from an alleged breach of duty.

This isn't likely, one hopes, to have much application to physicians except that we can still see that the Duty-Dereliction-Damage-Direct Cause formula applies to many torts [anus-bottle rocket] other than simple medical malpractice.

Odd Breach of Duty Unlikely to Happen Again

The Complaint alleges that the defendant was derelict in his Duty not to fire bottle rockets out of his anus.

Since the rocket actually blew up next to the anus rather than taking flight, one wonders if there might also be a product liability case here as well.

Probably not, since using a device in a manner not intended by the manufacturer is a good product liability defense.  The name says it all: 'Bottle Rocket' and not 'Anus Rocket'.

UPDATE:  This practice may not be as uncommon as I imagined.  Definitely a boy thing.  Hard to imagine sorority girls entertaining themselves like this.