Flannery v. President of Georgetown College

Opinion for the court per curiam.

Dissenting opinion filed by Circuit Judge WALD.

PER CURIAM:

Appellant Mary Anne Flannery had breast enlargement surgery performed by appellees. After the surgery she developed hemopneumothorax (essentially blood and air in the lungs), apparently as a result of a local anesthetic procedure called an intercostal nerve block. While Mrs. Flannery had been informed of the risks of the surgery itself, she had not been warned of any risks associated with the anesthetic procedure. At the close of appellants’ case, the trial judge directed a verdict for appellees *144on the issue of informed consent. This ruling is the only issue presented for appeal. We affirm.

Whenever significant doubt exists, the better practice in such cases is not to take the case away from the jury, but rather to grant a judgment n. o. v. where necessary. See 9 C. Wright & A. Miller, Federal Practice and Procedure § 2533 at 586 (1971) (“appellate courts have repeatedly said that it is usually desirable to take a verdict, and then pass on the sufficiency of the evidence on a post-verdict motion”). In our view, it is unfortunate that the District Court did not follow the practice in this case.

As to the substance of the informed consent issue, however, the record clearly demonstrates that no warning of hemopneumothorax was required. On the other hand, pneumothorax (a collapsed lung) appears to have been a recognized risk of the anesthetic procedure chosen, occurring in roughly one in a thousand eases. Transcript (Tr.) 205. The fact that plaintiff developed the more serious hemopneumothorax should not excuse a failure to warn Of the less serious pneumothorax.

Nonetheless, proof of an undisclosed risk is only one element of a plaintiff’s case. There must also exist a causal relationship between the physician’s failure adequately to divulge and damage to the patient. “A causal connection exists when, but only when, disclosure of significant risks incidental to treatment would have resulted in a decision against it.” Canterbury v. Spence, 464 F.2d 772, 790 (D.C.Cir.), cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972). See 1 S. Pegalis & H. Wachsman, American Law of Medical Malpractice § 2:15 at 102-103 (1980) (“It is universally accepted that the plaintiff cannot recover, in the absence of proof by a preponderance of the evidence, that the patient would have withheld consent to the course of treatment or procedure in the face of the required and adequate disclosure of the risks and alternatives.”).

In this case, appellant testified only that she would not have undergone the surgery had she known of the risk of hemopneumothorax. Tr. 110. She did not testify that she would have foregone the surgery had she known of the risk of pneumothorax. Indeed, she distinguished the risks of surgery about which she had been warned (Tr. 56-58) by saying:

These complications were explained as things that could be taken care of in the office, that were not life-threatening, that would not disable you, that were of a very short time, you know, in order to clear them up.

Tr. 110. These complications are compatible with a collapsed lung or pneumothorax. Since a collapsed lung is a short-term, non-disabling, nonlife-threatening condition that is responsive to treatment, a warning as to the risk of pneumothorax would presumably not have affected Mrs. Flannery’s election of surgery.

Nor did appellant ever prove that she would have, chosen general anesthesia as opposed to local anesthesia if she had been warned of pneumothorax. Appellant’s expert witness, Dr. Lear, did testify that both anesthetic procedures entailed risks. Tr. 393-395. But appellant never attempted to prove that, if only she had known of the one-in-a-thousand risk of a collapsed lung, she would have chosen general anesthesia and its associated risks over a local anesthetic procedure.1

We do not dispute that patients should be warned of all material risks not only of the operating procedure itself but also of anesthetic procedures. Thus, under Canterbury v. Spence, supra, a doctor has a *145duty to provide specific warnings of material risks associated with both surgical and anesthetic procedures. In this case, however, appellant did not establish a causal link between a failure to warn and the injuries suffered. Accordingly, the grant of a directed verdict must be

Affirmed.

. In summarizing the evidence, appellant stated only that “Mrs. Flannery testified that she would not have undergone the bilateral augmentation mammoplasty [breast augmentation] procedure had she been aware of the risks of the intercostal nerve block procedure.” Brief for Appellants at 4.