Kornberg v. United States

693 Fed.Appx. 542 (9th Cir. 2017)

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Nature of the Case

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Facts

P had a left-ear stapedectomy in February 2009 in an attempt to improve his hearing. P suffered left chorda tympani nerve damage during the procedure, leading to a partial loss of his sense of taste. P claims that he was not given sufficient information about the risks of the stapedectomy to allow him to give informed consent to the operation. P sued the United States (D) under the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b)(1), 2674. During trial, the court entered evidence of the regular practices and routines of two of the doctors who treated P and of the medical center at which P received treatment. This was the habit and routine testimony of the doctors before such a surgery. One of the doctors testified that she performed approximately 40 stapedectomies during her six years of residency and that in each preoperative visit with a stapedectomy patient she 'absolutely' went over the risk of damage to the chorda tympani nerve. The district court held that the habit-and-routine evidence tended to show that the doctors and the medical center had provided sufficient information to P. It entered the evidence under Rule 406. P did not object to the admission of this evidence at trial. D got the verdict and P appealed.