Henderson v. Milobsky (595 F.2d 595) 1978

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. 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. Appellant testified that he was not told that paresthesia might result, while appellee avowed that he was.

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. 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….

In Canterbury v. Spence, 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. The "root premise" for this obligation is the patient's " "right to determine what shall be done with his own body . . . ,' " and the need for information bearing on that determination. 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. 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.

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

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. Haven merely stands for the cognate proposition that when the claimant has not even made such an assertion, the issue of causation cannot possibly go to the jury.

Appellant's complaint is that he suffers from permanent paresthesia of a portion of his face and that the extraction of the first wisdom tooth was responsible therefor. The District Court directed a verdict for appellee at the close of appellant's evidence, apparently reasoning that neither the risk of temporary nor of permanent paresthesia was significant enough to give rise to a duty to disclose. We affirm that result, but we find it necessary to distinguish the two risks in our analysis.

Looking first to potential recovery on the theory of breach of duty to disclose the risk of temporary paresthesia, the starting point, as in any tort action, is the plaintiff's burden of establishing the coalescence of four essential elements: duty, breach of duty, causation and actual loss. If indeed appellee had a legal responsibility to tell appellant that temporary paresthesia was a hazard, there undisputably was sufficient evidence that the duty went unfulfilled. But even were we to take another leap of faith to the conclusion that failure to disclose the risk of temporary paresthesia could be considered legally related to the permanent paresthesia claimed appellant did not surmount the requirement of causation in fact because it is evident that in actuality he would not have called off the extraction.

This case in essence is much like Haven, for although appellant said in hindsight that had he known he would have declined to proceed, no reasonable juror could have credited that testimony. Knowing that the first extraction had left him with at least some continuing numbness in his face the sum and substance of paresthesia appellant nonetheless made an appointment and returned about two weeks later to have another wisdom tooth removed. He did not try to explain away this contradiction between assertion and overt conduct, and we and no less jurors would be hard put to even imagine how he might have done so. We can hypothesize no more telling evidence of what he would have done had he been warned of the possibility of temporary paresthesia before the extractions began.

Moving now to the risk of permanent paresthesia, we agree completely with the District Court that the facts shown by the evidence, viewed with maximum favor to appellant, did not generate a duty to disclose. We held in Canterbury that the obligation to inform the patient of appreciable risks depends on the need for the treatment, the likelihood that injury will occur, and the seriousness of any injury that could follow. The only evidence on the incidence of the risk in this case came from appellee, who testified that he had encountered only three to five cases of paresthesia all of which were temporary in more than 100,000 extractions. Thus, the evidence before the jury could indicate at most that temporary paresthesia would occur no more than .005% Of the time one chance in 20,000 and that permanent paresthesia could be expected in less than one case in 100,000 or no more than .001% Of the time. Moreover, the injury risked here loss of sensation in a small section of the face is undoubtedly troublesome but hardly disabling. Canterbury, by contrast, involved a one percent chance of very serious consequential harm. We agree with the District Court that, on the speculative evidence adduced, no prudent juror could reasonably have considered the risk of permanent paresthesia material to a decision on whether to consent to the procedure, and no allegation has been made that appellee had reason to know of any special desire on his patient's part to have a greater-than-average knowledge of potential hazards.

The District Court must thus be affirmed on the issue of nondisclosure. The purpose of the Canterbury cause of action is to protect the patient's dignity and free will; it is not an avenue to compensation every time a medical procedure goes awry. There remains, however, the more troubling issue of negligent performance of the first extraction itself.

Several successive procedures customarily attend the removal of an impacted wisdom tooth such as appellant's. The methodology was carefully described at trial by appellee himself when called as an adverse witness. The initial step is an x-ray of the site of the proposed extraction to provide the basis for a judgment on the level and direction of force possible without inviting injury to the patient. Asked whether omission of the pre-extraction x-ray would affect the dentist's ability to execute properly, appellee declared that "he would be a little bit nuts not to take a picture before, because you have to know how to apply force to take a tooth out. And without seeing the shape of the roots, the curvature of the roots, you cannot tell it by just looking at a mouth. You have to take an x-ray."

The next step, following anesthetization of the area, is a splitting of the tooth, its severance from the jawbone and its removal piece by piece. Only in this fashion could appellant's lower right wisdom tooth be unseated, for it was caught at one point against the tooth in front of it and held below the surface of the gum. After splitting and severing, the distal fragments are taken out, thus leaving a space through which the anterior fragment can be extricated by means of an "elevator." Also involved is a chiseling away of just so much of the jawbone as may be essential to these purposes.…

The final step in extraction of an impacted wisdom tooth is removal of tooth and bone chips from, and irrigation of, the socket thus left open. In doing this, a little pressure not involving the alveolar nerve is needed to dislodge the membrane. Save for this, however, appellee warned, no force or pressure whatever is to be exerted.

At trial in this case, the evidence was conflicting on whether in all respects this medically established mode of procedure was adhered to when appellant's lower right wisdom tooth was extracted. To begin with, there was a sharp difference in the testimony regarding whether appellee x-rayed appellant's jaw before the process of extraction commenced. Appellee stated unequivocally that he did, and that he had films to prove it; appellant was equally emphatic that appellee did not x-ray until the extraction was nearly complete and the roots of the tooth could not be located. It does appear that x-ray films were displayed on a viewer during the session, but the issue nevertheless persisted. Appellant took the films to be those made by Dr. Aaronson, and appellee never identified them as the ones he assertedly made; indeed, the record does not clearly reveal whether the films displayed depicted appellant's jaw or someone else's. It is undisputed that Dr. Aaronson sent the films of his x-rays to appellee, but appellee insisted that he was unable to read Dr. Aaronson's films….

There was, too, evidence by which the jury might have been persuaded that appellee deviated from the professional norm in applying force to remove the tooth and in the manner in which he probed the socket. Appellant's testimony vividly depicted heavy pressure to achieve extraction and extensive post-extraction probing in a fruitless search for roots…

Combinationally, then, these qualities of appellant's evidentiary presentation rendered it invulnerable to direction of a verdict on either of his two approaches toward negligent-treatment recovery. In dealing with appellee's motion therefor, the District Court was required to yield to appellant the view of the evidence most favorable to him and the benefit of all legitimate inferences flowing therefrom, and by our assessment that consideration was not indulged. That appellant may now receive his just due, we reverse the judgment appealed from and remand the case for a new trial limited to the claim of negligent performance of the first extraction.