Hartke v. McKelway

• Decision Date: 20 May 1983
• Docket Number: Nos. 81-2192,81-2193,s. 81-2192
• Citation: 707 F.2d 1544,228 U.S. App. D.C. 139
• Parties: Sandra J. HARTKE v. Dr. William McKELWAY, Appellant. Sandra J. HARTKE, Appellant, v. Dr. William McKELWAY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1544

707 F.2d 1544

228 U.S.App.D.C. 139

Sandra J. HARTKE v. Dr. William McKELWAY, Appellant.

Sandra J. HARTKE, Appellant, v. Dr. William McKELWAY.

Nos. 81-2192, 81-2193.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 29, 1982.

Decided May 20, 1983.

As Amended May 20, 1983.

Appeals from the United States District Court for the District of Columbia (D.C. Civil No. 79-03447).

Vance Hartke, Falls Church, Va., for appellant in 81-2193 and cross-appellee in 81-2192. Wayne Hartke, Falls Church, Va., also entered an appearance for appellant/cross-appellee.

Patrick J. Attridge, Rockville, Md., for appellee in 81-2193 and cross-appellant in 81-2192.

Before MacKINNON and GINSBURG, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge McGOWAN.

McGOWAN, Senior Circuit Judge:

These cross-appeals arise out of the failure of an operation to sterilize the plaintiff, resulting in the birth of a healthy baby girl. The primary issue for our consideration in this diversity case is whether, under District of Columbia law, the plaintiff would be allowed to recover from the defendant doctor some portion of the expenses of raising the child to majority. We are also called upon to decide whether, in the light of certain language in our opinion in Henderson v. Milobsky, 595 F.2d 654, 657-58 (D.C.Cir.1978), patients in informed-consent cases must testify that they would not have undergone the procedure had they known of all the material risks involved. Finally, we must decide whether the risk of subsequent pregnancy in this case could reasonably have been considered material to a decision whether to undergo the treatment.

After a jury verdict for plaintiff on all claims, the District Court disallowed the award of childrearing expenses because it found the evidence clear that plaintiff had sought to be sterilized for therapeutic, not economic, reasons, and because she prized the child she bore. Hartke v. McKelway, 526 F.Supp. 97, 105 (D.D.C.1981). The court also held that in haec verba testimony of causation is not required to get the issue of informed consent to the jury as long as there is otherwise sufficient evidence from which the jury could infer that a patient would have declined the procedure had he or she known of the risks. Id. at 103. Finding such evidence, the court upheld the jury's award of damages for plaintiff's medical expenses, pain, suffering, and mental anguish resulting from the pregnancy and childbirth. Id. The court also held that a jury could have found that a reasonable person in plaintiff's somewhat unusual position would likely have attached significance to the undisclosed risk of subsequent pregnancy here (one to three out of one thousand). Id. at 102-03. We affirm.

I

In the winter of 1978, Sandra J. Hartke, the plaintiff in this action, discovered she was pregnant and elected to have an abortion. For reasons that are crucial to the disposition of this appeal, and that are discussed at length below, she also sought to have herself sterilized. Her usual doctor recommended a hysterectomy, the complete removal of the uterus. Hartke, then 33, thought this a rather drastic procedure, so she approached the defendant, Dr. William McKelway, for a second opinion. Dr. McKelway recommended a procedure known as laparoscopic tubal cauterization, which involves blocking the Fallopian tubes by burning them with instruments inserted through one or two small incisions in the abdomen. Hartke consented to the procedure, and on March 14, 1978, an abortion and tubal cauterization were performed on her. Dr. McKelway subsequently examined Hartke and termed the operation successful.

There was testimony from which the jury could infer that prior to the operation Dr. McKelway failed to disclose to Hartke that there was a risk of recanalization--where a Fallopian tube spontaneously reopens--of one to three out of one thousand. Hartke and her boyfriend, with whom she had lived for four years and whom she later married, also testified that the boyfriend offered to undergo a vasectomy if there was any risk of subsequent pregnancy, but that McKelway told them that the procedure was "a 100 percent sure operation," and that Hartke would not have to worry about becoming pregnant again. Record Excerpts (R.E.) at 33; accord id. at 34.

Despite the surgery, Hartke again became pregnant in September 1979. After an examination confirmed that the pregnancy was normal--she had had a tubal or ectopic pregnancy in 1968--she elected to carry it to term and in June 1980 gave birth by Caesarean section to a baby girl. At the same time, Hartke had herself resterilized by a tubal ligation, which involves actually cutting the Fallopian tubes. The record suggests that this method of sterilization involves about the same risk of subsequent pregnancy as cauterization. Transcript of July 23, 1981, at 145, 148 (testimony of Dr. Falk); see also id. at 148 (risk when ligation performed at time of delivery is greater). At the time of trial, one year after the delivery, she had not resumed sexual relations with her husband. Transcript of July 24, 1981, at 304 (testimony of Weddle (plaintiff's husband)); see id. at 296 (testimony of Mrs. Hartke (plaintiff's mother)).

Invoking the District Court's diversity jurisdiction, Hartke brought suit against McKelway alleging negligence in the performance of the cauterization procedure, failure to obtain informed consent, and breach of warranty. At the conclusion of the plaintiff's evidence, the District Court granted McKelway a directed verdict as to the breach of warranty claim; Hartke does not now complain of this ruling. The jury returned a special verdict, finding that McKelway negligently failed to cauterize Hartke's Fallopian tubes and that he failed to inform her of a material risk of the procedure. It awarded Hartke $10,000 in medical expenses, $100,000 for pain, suffering, and mental anguish, and $200,000 for the "[a]nticipated costs of raising this child until age 18 less any benefit [Hartke] received or in the future will receive by reason of the love, joy, happiness, etc. she experienced in raising a healthy, happy child." R.E. at 1-2; 526 F.Supp. at 106 (copy of special verdict form used).

The District Court granted in part McKelway's motions for judgment notwithstanding the verdict and for a new trial. It held that there was no evidence of medical expenses greater than $6,000 and no evidence of future medical expenses, and ordered a new trial on this issue unless Hartke agreed to remit $4,000. Id. at 104. Hartke made such a remittitur. ¹ The court also ruled that a new trial of the negligence claim would be necessary because one of Hartke's experts should not have been allowed to testify on the standard of care for laparoscopic cauterization. Id. at 101. ² Finally, the court disallowed the award of childrearing expenses because the "weight of authority does not, and the District of Columbia courts would not, allow recovery of the costs of raising a healthy child in circumstances such as these where the plaintiff sought sterilization solely for therapeutic reasons, and prizes the child she bore." Id. at 105. ³ Both parties appealed. ⁴

II

We deal first with the judgment that Dr. McKelway failed to disclose material risks to Hartke.

A. Materiality of the Risk

McKelway first argues that he had no duty to disclose the risks of pregnancy in this case since no "reasonable person in what the physician [knew] or should [have known] to be the patient's position would be likely to attach significance to the risks in deciding whether to accept or forego the proposed treatment," Crain v. Allison, 443 A.2d 558, 562 (D.C.App.1982). The risk of pregnancy after laparoscopic cauterization was testified to be one to three out of one thousand.

For present purposes, the crucial language in the above formulation is "what the physician [knew] or should [have known] to be the patient's position." The "patient's position" must include the patient's medical history and other factors that might make knowledge of certain risks particularly important to a certain patient, acting reasonably. Here, there were two factors that would make even a small risk of pregnancy unusually dangerous for a patient in Hartke's position. First, Dr. McKelway knew that Hartke had a history of gynecological and pregnancy-related problems. She had contracted peritonitis after the birth by Caesarean section of her first child in 1964, resulting in a lengthy and traumatic hospital stay. She had had an ectopic pregnancy in 1968, apparently begun while using an IUD. She had been hospitalized numerous times for minor gynecological procedures. Hartke testified she informed Dr. McKelway that other doctors had advised her she "would not make it through [another] pregnancy." Transcript of July 21, 1981, at 8. Second, Dr. McKelway had before him conclusive evidence of the psychological effect of pregnancy on his patient. He testified that she was "extremely upset" and "very agitated" about the pregnancy. Transcript of July 24, 1981, at 311. She testified that she told him she thought she was going to die from the pregnancy. R.E. at 23.

In sum, the jury could conclude that a subsequent pregnancy would be a very serious consequence for this particular patient, which would result possibly in physical and certainly in psychological trauma. This was underscored by the testimony that Hartke's boyfriend told the doctor he would undergo a vasectomy instead if the sterilization was not sure to be successful.

Moreover, less risky paths than relying on the cauterization were open to Hartke. Had she been able to compare the relative risks of failure, she might reasonably have changed her mind and decided to undergo a hysterectomy if, as the evidence suggested, ⁵ the latter procedure would have reduced the risk. Perhaps more likely given her ultimate course of conduct, even if...