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

Witt & Tani, TCPI 4. Negligence Standard
alleged to have failed to test for glaucoma under the same or similar circumstances.” Meeks v.
Marx, 550 P.2d 1158, 1162 (Wash. Ct. App. 1976).
3. The glaucoma case. Glaucoma testing is now standard, though probably not as a result of
the Washington Supreme Court’s decision in Helling. Because “glaucoma is a process,”
physicians often use glaucoma tests to establish a baseline to determine whether the optic nerve
has changed. George L. Spaeth, Glaucoma Testing: Too Much of a Good Thing, 20 REV.
OPHTHALMOLOGY 100, 103 (2013). Frequent and unnecessary glaucoma testing, however, has
“develop[ed] a standard of care that says [glaucoma testing] should be done.” Some combination
of third-party-payment for medical services, tort liability risk, and professional standardization
has had the effect of “driv[ing] up the cost of care significantly and unnecessarily.” Id. at 102.
4. Negligent treatment versus negligence in disclosing risks. Doctors, like all actors, can be
negligent in multiple ways. Imagine a different infant-delivery scenario from Brune, where at
some point in the patient’s labor, she is given the option to continue trying for a vaginal birth or
opting for birth by Cesarean section (a surgical procedure involving incisions in the mother’s
abdomen and uterus). After a brief conversation with her doctor, focusing entirely on the risks
and benefits to the as-yet unborn baby, the patient opts for the Cesarean. The procedure is
performed skillfully but nonetheless leads to debilitating complications for the mother, including
persistent pain, an infected incision, and loss of normal bowel functioning, none of which the
doctor discussed with the patient prior to the surgery. Given that the procedure was performed
skillfully, is there no recognizable injury here? If there is an injury that the law might remedy,
what conduct on the doctor’s part should we focus on and how should we judge it? If the doctor
followed the disclosure customs of the profession, should that shield the doctor from liability? Or
are there reasons for preferring a different standard here? These are the questions that the next
case takes up.
Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972)
ROBINSON, J.
. . .
At the time of the events which gave rise to this litigation, appellant was nineteen years of
age, a clerk-typist employed by the Federal Bureau of Investigation. In December, 1958, he
began to experience severe pain between his shoulder blades. He consulted two general
practitioners, but the medications they prescribed failed to eliminate the pain. Thereafter,
appellant secured an appointment with Dr. Spence, who is a neurosurgeon.
Dr. Spence examined appellant in his office at some length but found nothing amiss. On
Dr. Spence’s advice appellant was x-rayed, but the films did not identify any abormality. Dr.
Spence then recommended that appellant undergo a myelogram–a procedure in which dye is
injected into the spinal column and traced to find evidence of disease or other disorder–at the
Washington Hospital Center.
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