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

Witt & Tani, TCPI 4. Negligence Standard
the legal standard in Canterbury demand of plaintiffs? Note that the retrial of this case resulted in
a verdict in the defendant’s favor. 509 F.2d 537 (D.C. Cir. 1975).
4. What risks are material? Cases like Canterbury prompt hard questions about the types of
health risks that can fairly be deemed “material.” They also raise questions about other categories
of information that might make a medical treatment more or less risky. Is a doctor’s dependency
on drugs or alcohol material information that a doctor has a duty to disclose? What about a
doctor’s pecuniary interest in the procedure, such as having a financial stake in the experimental
medical device being used? Should a doctor disclose any disciplinary history?
5. Facts versus opinions. Patients rely on medical professionals not only for information but
also for interpretation—expert guidance on what the information in front of them means. What
kind of interpretations are patients entitled to? A case that highlights this question is Doe v.
Planned Parenthood, 956 N.E.2d 564 (Ill. 2011):
According to the complaint, the plaintiff, about three months pregnant, visited a
help center because of uncertainty over her pregnancy. At the pregnancy help
center she was told that the fetus she was carrying was a “human being.”
Thereafter, she visited the Planned Parenthood office in Chicago, which she
identifies as an “abortion clinic.” According to her complaint, she was counseled
at Planned Parenthood that the fetus she was carrying was not a “human being.”
While at Planned Parenthood, the plaintiff signed a form consenting to a pregnancy
termination procedure that same day, which she underwent.
Two years after this procedure, Doe filed a complaint asserting that she would not have consented
to an abortion had the defendant not “incorrectly denied th[e] fact” of “a human being in
existence.” Id. Upholding the trial court’s dismissal of her complaint, the court declined to
characterize the requested information as “fact,” instead describing it as a “scientific, moral, or
philosophical viewpoint” on a “profound” and divisive question. Id. at 572-73. Whether medical
providers ought to have a duty to disclose such information, the court implied, was better left to
the legislature. (“No court . . . has found a common law duty requiring doctors to tell their
pregnant patients that aborting an embryo, or fetus, is the killing of an existing human being.”)
Id. at 572.
Many commentators think that medical malpractice is one of the least well-functioning
areas of American tort law. Consider the views of some of the leading authorities on medical
malpractice, David Studdert, Michelle Mello, and Troyen Brennan:
David M. Studdert, Michelle M. Mello & Troyen A. Brennan, Medical Malpractice, 350 NEW
ENG. J. MED. 283, 283-86 (2004)
Prompted by the malpractice crisis of the mid-1980s, a research team at Harvard
University embarked on a review of medical records from over 30,000 hospital discharges and
3500 malpractice claims in New York. The reviewers found rates of adverse events and negligent
adverse events (3.7 percent and 1.0 percent, respectively) that were remarkably close to those in
California. Extrapolations from these rates produced alarming estimates of the burden of medical
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