Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
Notes
1. Disclosure, medical custom, and materiality to patients. Are you persuaded that cases
involving injurious failures to disclose risks in the course of medical treatment should be treated
differently from cases involving injurious missteps in administering medical treatment? Why or
why not? Note that “a little more than half” of U.S. jurisdictions, many by statute, have adopted a
disclosure standard anchored in the custom of the medical community. But since 1972, when
Canterbury was decided, courts considering the issue for the first time and doing so unconstrained
by statutes have gravitated toward the patient-centered materiality standard. DAN B. DOBBS, THE
LAW OF TORTS § 250 655 (2000).
2. The causation hurdle. As we will discuss in a subsequent chapter, a finding of liability in
a negligence case requires more than a finding that the defendant behaved unreasonably; it also
requires a finding that the defendant’s unreasonable conduct caused the plaintiff’s injury. The
court in Canterbury elaborated on what the causation requirement demands in a medical
negligence case where the gist of the negligence is failure to disclose:
A causal connection exists when, but only when, disclosure of significant risks
incidental to treatment would have resulted in a decision against it. The patient
obviously has no complaint if he would have submitted to the therapy
notwithstanding awareness that the risk was one of its perils. On the other hand, the
very purpose of the disclosure rule is to protect the patient against consequences
which, if known, he would have avoided by foregoing the treatment. The more
difficult question is whether the factual issue on causality calls for an objective or a
subjective determination.
. . .
[W]e believe [courts should] resolve the causality issue on an objective basis: in
terms of what a prudent person in the patient’s position would have decided if
suitably informed of all perils bearing significance. If adequate disclosure could
reasonably be expected to have caused that person to decline the treatment because
of the revelation of the kind of risk or danger that resulted in harm, causation is
shown, but otherwise not. The patient’s testimony is relevant on that score of course
but it would not threaten to dominate the findings. And since that testimony would
probably be appraised congruently with the factfinder’s belief in its reasonableness,
the case for a wholly objective standard for passing on causation is strengthened.
Such a standard would in any event ease the fact-finding process and better assure
the truth as its product.
464 F.2d 772, 790-91.
3. Failure to disclose cases in practice. Taking into account the standard of care articulated
in Canterbury and the causation approach noted above, how easy or difficult do you think it is in
practice for plaintiffs to win damages in failure-to-disclose cases? What kind of evidence does
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