Canterbury v. Spence

464 F.2d 772 (1972)

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Nature of the Case

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Facts

P was nineteen years of age, a clerk-typist at the Federal Bureau of Investigation. In December 1958, he began to experience severe pain between his shoulder blades. Medications failed to eliminate the pain. P then visited with Dr. Spence (D), a neurosurgeon. Initial exams were made, and no issues were found. D than recommended that P undergo a myelogram -- a procedure in which dye is injected into the spinal column and traced to find evidence of disease or other disorder. The myelogram revealed a 'filling defect' in the region of the fourth thoracic vertebra. Since a myelogram often does no more than pinpoint the location of an aberration, surgery may be necessary to discover the cause. D told P that he would have to undergo a laminectomy -- the excision of the posterior arch of the vertebra -- to correct what he suspected was a ruptured disc. P did not raise any objection to the proposed operation nor did he probe into its exact nature. D then telephoned P's mother and told her that the surgery was occasioned by a suspected ruptured disc. The testimony is contradictory as to whether during the course of the conversation Mrs. Canterbury expressed her consent to the operation. D said the operation for a ruptured disk was no more serious than any other operation. D performed the laminectomy. P's mother arrived after the fact and signed a consent form at the hospital. The laminectomy revealed several anomalies: a spinal cord that was swollen and unable to pulsate, an accumulation of large tortuous and dilated veins, and a complete absence of epidural fat which normally surrounds the spine. A thin hypodermic needle was inserted into the spinal cord to aspirate any cysts which might have been present, but no fluid emerged. In suturing the wound, D attempted to relieve the pressure on the spinal cord by enlarging the dura at the area of swelling. P recuperated normally but suffered a fall and an almost immediate setback. P was to remain in bed during the process of voiding. These orders were changed to direct that voiding be done out of bed. Just prior to the fall, P summoned a nurse and was given a receptacle for use in voiding, but was then left unattended. P slipped off the side of the bed, and that there was no one to assist him, or side rail to prevent the fall. Several hours later, P began to complain that he could not move his legs and that he was having trouble breathing; paralysis seems to have been virtually total from the waist down. Mrs. Canterbury signed another consent form, and P was again taken into the operating room. The surgical wound was reopened, and D created a gusset to allow the spinal cord greater room in which to pulsate. Despite improvement, P was unable to void properly. P was operated on for removal of bladder stones, and in May was released from the hospital. P was against admitted for a 10-day period because of his urologic problems. For several years after his discharge he was under the care of several specialists, and at all times was under the care of a urologist. At the time of the trial in April 1968, P required crutches to walk and wore a penile clamp. P filed suit against D, claiming D did not inform him of the risks of the surgery. P filed suit against the hospital for not having a bed rail and not having a nurse to assist him at the time of his fall. D denied the charges and defended on the grounds that the suit was barred by the statute of limitations. D was granted a directed verdict based on the fact that P had failed to produce any medical evidence indicating negligence. The court did not address the issue of the breach of duty by D by not divulging the possible consequences of the operation. P appealed