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| Paulson & Nace

Over the weekend we learned, more than two months after the fact, that Jerry Canterbury had passed away on March 15th in Hartville, Ohio at the age of 78. Considering the delay in news of his death, it might not be surprising to hear one ask, “Who is Jerry Canterbury?” The answer is simple—while many might not be familiar with him by name, it’s safe to say that every American owes him a debt of gratitude.

Here’s some background as reported by the Washington Post:

  • Jerry Canterbury was just out of high school when he boarded a Greyhound bus to Washington to join the FBI as a clerk, a job that was to be his ticket out of the coal mines of West Virginia. He had barely settled into his new life when he developed a sharp pain in his back.
  • In 1959, at 19, he agreed to undergo a spinal surgery known as a laminectomy—a procedure expected to resolve a ruptured disc and that he said his doctor described as “no more serious than an ordinary, everyday operation.”
  • The day after the surgery, Mr. Canterbury fell at the hospital while attempting to empty his bladder. Another operation followed. By the time he was discharged more than three months later, he was partially paralyzed in the legs and permanently incontinent. He would spend the rest of his life on crutches, then in a wheelchair and finally confined to a bed.
  • Mr. Canterbury … sued his surgeon, William T. Spence, accusing him of having failed to adequately warn him of the risks of his surgery. The physician ultimately prevailed, but a 1972 federal appeals court decision in the case became a foundation of the doctrine of informed consent and, by extension, the modern practice of medicine.

Most law students are familiar with the case of Canterbury v. Spence. An emeritus professor at the Kennedy Institute of Ethics at Georgetown University, Robert Veatch, said that he has taught the case to more than 15,000 students and considers it to be “one of the most important cases in medical ethics.” Arthur Caplan, head of the bioethics division at New York University’s medical school, was quoted as saying that the landmark decision has “reverberated into health law and bioethics and our thinking of doctor-patient relationships even to the present day, even though he lost.”

We take for granted today that each of us has the right to be informed of the risks and benefits of medical procedures before we consent to them. That wasn’t always the case. The idea of doctors providing information to patients was only beginning to take shape when Mr. Canterbury brought his lawsuit. It was at a time when most doctors only revealed the details they judged a prudent physician with similar background and training would communicate—something known as the professional standard.

So in 1968, Mr. Canterbury’s doctor argued at trial that the paralysis was caused by the original spinal condition, not the surgery. The physician conceded it was possible that a laminectomy could cause such damage, but only in about one percent of cases. Spence would later testify that he had warned Mr. Canterbury only of “weakness,” but not potential paralysis.

The presiding judge then granted a motion for a directed verdict in favor of the defendant—something that Mr. Canterbury appealed. Coming before Judge Spottswood W. Robinson III of the U.S. Court of Appeals for the District of Columbia, the result was the landmark decision with which all law students are familiar.

Judge Robinson wrote that “respect for the patient’s right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves.” The result of the case was that doctors had to provide information that patients would want to know about procedures, rather than what a doctor thought the individual needed to know. The Washington Post put it best by stating, “the decision is generally understood to have contributed to a more robust definition of patients’ rights and richer doctor-patient relationships.”

Mr. Spence was originally represented by Earl Davis, a well-known Washington, D.C. medical malpractice lawyer at the time. After the first trial and before Judge Robinson’s opinion issued, a young lawyer named Barry Nace joined Mr. Davis. Mr. Davis and Mr. Nace eventually formed a partnership, Davis & Nace, which was the predecessor firm to Paulson & Nace, PLLC.

Mr. Nace explained that the “case was instrumental in breaking the doctors ‘code of silence’—because, with an informed consent claim, a doctor did not necessarily have to testify for the plaintiff to get his day in court. The opinion by Judge Robinson was recognized as a brilliant one, as previously an injured party had no chance for any justice … and it’s all because one attorney, Earl Davis, was dogged enough to pursue the case.”

Often times, law students and lawyers tend to forget that the cases we cite—Brown v. Board of Education, Miranda v. Arizona, Daubert v. Merrill Dow—all began as the stories of everyday American citizens fighting for justice. Mr. Canterbury’s case is a perfect example of this. A young man fought for what he thought was right: that the patient should be the decision-maker when it comes to his or her medical care. Through our civil justice system, Mr. Canterbury changed the patient-physician relationship forever, placing the patient in control of his or her medical care.

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