Canterbury v. Spence

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Context

The Patient

19 y/o male, FBI clerk-typist, otherwise healthy, presenting with severe upper-back pain. No documented comorbidities.

Functionally an ASA 1 patient by modern criteria; the formal ASA Physical Status classification existed in 1959 but was not used in this case file. The point: this was a young, healthy patient with everything to lose from a 1% catastrophic risk, and almost nothing to gain from withholding it.

The Procedure

Anesthesia Plan

The plan for anesthesia was general anesthesia, which was the standard for thoracic spine surgery in 1959. However, the anesthesia record is not the focus of this case; the conduct of the anesthetic was never alleged to be substandard.

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Timeline

February 1959 — May 1972

• Feb 1959 — Pre-Op

  The consent conversation. Dr. Spence reaches Canterbury’s mother by phone in rural West Virginia and tells her the operation is “no more serious than any other operation.” He does not mention the roughly 1% risk of paralysis. Spence later testified that he deliberately withheld it because, in his view, disclosure might deter patients from needed surgery and produce adverse psychological reactions.

• Feb 11, 1959

  Laminectomy performed at Washington Hospital Center. Intraoperative findings reveal a swollen, non-pulsatile spinal cord, dilated epidural veins, and complete absence of the epidural fat that normally cushions the cord. Dr. Spence enlarges the dura to relieve cord pressure. The patient’s mother arrives later that day, after the operation is over, and signs the written consent form post-operatively.

• Post-Op Day 1

  Canterbury is recovering normally and voiding on his own. The patient falls from his unattended hospital bed while attempting to get to the restroom. No side rail is in place; no orderly or nurse is present to assist. Within hours, weakness in the lower extremities is documented.

• Days to Weeks Post-Fall

  Paralysis from the waist down develops. A second operation is performed. After the second surgery he regains some limited motor function, but he is left with permanent partial paralysis, urinary incontinence, and bowel paralysis. He is discharged from the hospital three and a half months later, walking with crutches.

• Mar 7, 1963 — Suit Filed (4 years later)

  Canterbury, now of legal age, files suit in the U.S. District Court for the District of Columbia against both Dr. Spence and Washington Hospital Center. The complaint alleges negligent performance of the laminectomy, failure to disclose the risk of paralysis, and negligent post-operative care by the hospital.

• May 19, 1972 — Appellate Opinion

  The trial court had granted directed verdicts for both defendants, citing Canterbury’s failure to produce expert medical testimony, a casualty of what was then called the “conspiracy of silence” among physicians. The D.C. Circuit, in an opinion by Judge Spottswood W. Robinson III, reverses and remands for a new trial.

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Mechanism of “Injury”

Pathophysiology

The physical injury begins with what the surgeon saw intraoperatively: a spinal cord that was swollen and non-pulsatile, with dilated epidural veins and no epidural fat. To relieve the pressure, Spence enlarged the dura, the outer protective membrane of the cord. This left the cord locally exposed and under a fresh dural repair, with its normal cushioning anatomy already absent. The thoracic cord at this level has minimal collateral perfusion, meaning that mechanical or vascular insults here recover poorly compared to the cervical or lumbar regions. When Canterbury fell from his unattended bed roughly a day after surgery, the impact transmitted force directly through a spinal segment that had no anatomic margin to absorb it. An unsecured spinal cord in the immediate post-laminectomy period is exquisitely vulnerable to even minor mechanical insult, and the subsequent paralysis, bladder dysfunction, and bowel paralysis reflect injury to the motor tracts and the autonomic outflow that runs through that same segment.

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The Law

Disclosure Fundamentals

The injury in this case has two layers: a physical one (a paralyzed cord) and a legal one (a consent that was never truly given). The legal injury runs through three concepts that the Canterbury court defined for the first time in their modern form.

• Material risk: a risk a reasonable person in the patient’s consider significantly when deciding whether to consent. The court explicitly tied materiality to two variables: the probability of the harm and its severity. A 1% chance of catastrophic, permanent paralysis sits high on the severity axis, and that is what gives it materiality even at a low probability. This is why a 0.1% risk of death can be material while a 30% risk of mild bruising may not be.
• Therapeutic privilege: the older doctrine Spence relied on, which allowed a physician to withhold information they believed would harm the patient psychologically or deter them from beneficial treatment. The Canterbury court did not abolish therapeutic privilege, but narrowed it sharply. Withholding because the patient might rationally refuse is not protected. The court said this runs counterintuitively to the foundational principle that the patient should have when determining their care.
• Reasonable patient standard: the new standard. Before Canterbury, the standard of disclosure was set by what physicians customarily told patients, which meant a doctor could only be liable if expert testimony from another doctor said they had under-disclosed. The Canterbury court rejected that, holding that the duty is measured by what a reasonable patient in the plaintiff’s position would want to know. The shift moves the decision-maker from the profession to the person being operated on.

The Breach

Canterbury’s complaint alleged three distinct breaches, falling on two defendants:

• Failure by Dr. Spence to disclose the roughly 1% risk of paralysis inherent in the laminectomy before obtaining consent.
• Negligent performance of the laminectomy itself by Dr. Spence.
• Negligent post-operative care by Washington Hospital Center: leaving a fresh post-laminectomy patient unattended, with no side rail and no orderly available to assist him when he tried to get up.

The Outcome

On May 19, 1972, the D.C. Circuit issued an opinion authored by Judge Spottswood W. Robinson III. The court did not award damages; instead, it reversed the trial court’s directed verdicts and sent the case back for a jury trial under a new framework that has shaped consent law ever since.

• Holding: The trial court’s directed verdicts for both Dr. Spence and Washington Hospital Center were reversed. Both claims presented genuine jury questions and should not have been dismissed.
• Standard Adopted: The court rejected the older physician-based standard and adopted the reasonable patient standard. The duty to disclose is measured by what a reasonable patient in the plaintiff’s position would consider material, not by what physicians customarily disclose.
• Causation Test: An objective test. The plaintiff must show that a reasonable person in their position, if properly informed, would have declined the treatment. The patient’s own retrospective testimony that they would have refused is not enough by itself, which keeps the standard honest.
• Expert Testimony: The court held that expert medical testimony is not required to establish what a reasonable patient would want to know, which dismantled the “conspiracy of silence” barrier to informed-consent claims.
• Disposition: Reversed and remanded for a new trial. On retrial, a jury again found for Dr. Spence and the hospital not guilty, but the framework the appellate court built in this opinion has since been adopted in roughly half of U.S. jurisdictions.

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References

• Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) — Justia full opinion
• AMA Journal of Ethics — Informed Consent: What Must a Physician Disclose to a Patient? (July 2012)
• Clinical Orthopaedics and Related Research — Medicolegal Sidebar: Informed Consent in the Information Age (PMC4523535)