dissenting:
I dissent from affirmance of the district court’s directed verdict on the issue of disclosure of risk to the patient. I believe that under the standards established in Canterbury v. Spence, 464 F.2d 772 (D.C.Cir.), cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972), there was sufficient evidence to leave to the jury decision on the causal relationship between the patient’s injury and the physician’s failure to disclose to the patient the risk of pneumothorax (perforation of the pleura) incident to the use of intercostal nerve block anesthesia. The panel opinion admits that “[t]he fact that plaintiff developed the more serious hemopneumothorax should not excuse a failure to warn of the less serious pneumothorax.” I agree, but my own reading of the record supports the further conclusion that plaintiff’s proof was adequate to go to the jury on the issue of whether “a prudent person in the patient’s position would have decided [against the anesthesia] if suitably informed of all perils bearing significance.” Id. at 791.
I do not understand the panel’s reasoning that the patient’s testimony to the effect that she was warned of the risks of the surgery itself and nonetheless undertook it (Tr. 56-66) can be relevant to whether, if warned of the risks attending this kind of anesthesia, she would not have chosen a different kind of anesthesia.. Obviously, each decision requires an independent assessment of the relative risks and benefits. Ms. Flannery’s testimony showed that, for a host of reasons, she wanted the operation itself enough not to be deterred by warnings of possible infection and hemotoma, described as complications of a non-life-threatening or non-disabling nature which “could be taken care of in the office.” Tr. 59. It would have been an altogether different decision for her to accept, in addition to these risks of surgery, the further risk of pneumothorax stemming from the anesthesia. While not permanently disabling, such a complication nonetheless involves the possibility of a collapsed lung and hospitalization for painful suction procedures. In Canterbury we said:
“[a] risk is thus material when a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy.”
464 F.2d at. 787 (quoting Waltz & Scheuneman, Informed Consent to Therapy, 64 N.W.U.L.Rev. 628, 640 (1970)).
I find enough support * in this record for a jury to find that a patient, already knowledgeable about risks of the surgery itself, might have decided differently about having an intercostal nerve block rather than a general anesthesia if confronted with information that additional risks to the same general area of the body were attendant to this mode of anesthesia. Although the risk of pneumothorax was comparatively small (.10%) and the potential consequences limited, “[t]here is no bright line separating the significant from the insignificant; the answer in any case must abide by a rule of reason.” Id. at 788.
*146This plaintiff in fact was told nothing about any problems with an intercostal nerve block; she suffered a hemopneumothorax as a result of the anesthesia — a rarer but far more serious condition than pneumothorax — caused by blood from a nicked vein or artery seeping into a punctured pleura. (The puncture itself would cause only a pneumothorax.) She now has some permanent lung disability and has had to undergo several hospitalizations and episodes of intense pain.
In my opinion, viewing her evidence, and inferences reasonably drawn therefrom in her favor, as we must when reviewing a directed verdict, her case deserved to go to the jury, and I would reverse and remand for a new trial.
See, e.g., testimony to the effect that the risks of pneumothorax accompanying intercostal nerve block were known to the medical profession, Tr. 198, 611, 626, and that patients should be warned before the procedure to stay still and why, i.e., that any untoward movement on their part can cause the needle to penetrate the pleura, Tr. 368-69. See Tr. 470 (court’s reference to such testimony). One doctor testified that he warns patients against intercostal nerve block because it is a “finicky procedure” that requires delicate maneuvering and that general anesthesia is safer. Tr. 393.