Court rul­ing in his case es­tab­lished doc­trine of in­formed med­i­cal con­sent

The Washington Post Sunday - - OBITUARIES - BY EMILY LANGER emily.langer@wash­post.com

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, who has died at 78, 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.

Robert Veatch, a pro­fes­sor emer­i­tus at the Kennedy In­sti­tute of Ethics at Ge­orge­town Univer­sity, said that he has taught Can­ter­bury v. Spence to more than 15,000 stu­dents and con­sid­ers it “one of the most im­por­tant cases in med­i­cal ethics.”

Arthur Ca­plan, head of the bioethics di­vi­sion at New York Univer­sity’s med­i­cal school, said the decision has “re­ver­ber­ated into health law and bioethics and our think­ing of doc­tor-pa­tient re­la­tion­ships even to the present day, even though he lost.”

Mr. Can­ter­bury’s death — on March 15 at his home in Hartville, Ohio — was an­nounced weeks ago in a no­tice in the Can­ton, Ohio, Repos­i­tory, but it did not re­ceive wide at­ten­tion un­til it was re­ported by the New York Times on May 16. Mr. Can­ter­bury’s sis­ter, Nancy Farah­mand, said her brother died of chronic ob­struc­tive pul­monary dis­ease.

The con­cept of pa­tient con­sent — the right to sub­mit or not sub­mit to a treat­ment — had ex­isted in medicine at least since the early 20th cen­tury. By the 1950s, con­sent had be­gun to evolve into in­formed con­sent, or the no­tion that a physi­cian must ad­vise a pa­tient of the risks and ben­e­fits of, as well as the al­ter­na­tives to, a pro­posed treat­ment be­fore pro­ceed­ing.

Around that time, doc­tors grad­u­ally dis­carded the com­mon­place prac­tice of withholding up­set­ting news, such as can­cer di­ag­noses, to al­low pa­tients to par­tic­i­pate more fully in their care. But when seek­ing in­formed con­sent, they gen­er­ally re­vealed only in­for­ma­tion that an­other doc­tor might pro­vide — a rule known as the pro­fes­sional stan­dard.

It was in that con­text that Mr. Can­ter­bury’s case worked its way through the le­gal sys­tem. At trial, in 1968, his doc­tor ar­gued that Mr. Can­ter­bury’s paral­y­sis had re­sulted not from the surgery, but rather from his orig­i­nal spinal con­di­tion.

Spence did con­cede, how­ever, that paral­y­sis could oc­cur “somewhere in the na­ture of one per­cent” of laminec­tomies, ac­cord­ing to an ac­count of the case by Alan Meisel, the founder of the Univer­sity of Pitts­burgh’s Cen­ter for Bioethics and Health Law. Spence would later tes­tify that he had warned Mr. Can­ter­bury only of “weak­ness,” not po­ten­tial paral­y­sis.

The court granted a mo­tion for a di­rected ver­dict in Spence’s fa­vor. Mr. Can­ter­bury ap­pealed, lead­ing to the land­mark decision by Judge Spottswood W. Robin­son III of the U.S. Court of Ap­peals for the District of Columbia.

Robin­son re­jected the pa­ter­nal­ism of the pro­fes­sional stan­dard, writ­ing 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 decision em­pow­ered pa­tients by es­tab­lish­ing a new stan­dard: Rather than re­veal­ing the risks and ben­e­fits an­other rea­son­able doc­tor would dis­close, physi­cians must dis­close the in­for­ma­tion a rea­son­able pa­tient would wish to know. In essence, the decision af­firmed pa­tient au­ton­omy and ac­knowl­edged that, in certain per­sonal de­ci­sions, a doc­tor might not al­ways know best.

The decision, which is widely although not uni­ver­sally fol­lowed, also had the ef­fect of length­en­ing doc­tor’s of­fice con­sent forms and invit­ing lit­i­ga­tion, Ca­plan noted dryly. Some doc­tors have lamented that the new stan­dard im­posed upon them the bur­den of dis­clos­ing ev­ery pos­si­ble mis­for­tune, how­ever im­prob­a­ble, that might re­sult from a med­i­cal pro­ce­dure. But the decision is gen­er­ally un­der­stood to have con­trib­uted to a more ro­bust def­i­ni­tion of pa­tients’ rights and richer doc­tor-pa­tient re­la­tion­ships.

The ap­peals court re­manded Mr. Can­ter­bury’s case for new trial. Again he lost. Be­tween the two tri­als, he elected to un­dergo a sec­ond laminec­tomy for newly de­vel­oped back pain, a fact that seemed to dis­credit his claim that he would have re­fused the first pro­ce­dure had he known its risks. In his ac­count of the case, how­ever, Meisel noted that the sec­ond pro­ce­dure pre­sented fewer risks, given that Mr. Can­ter­bury was al­ready par­a­lyzed.

Jerry Wat­son Can­ter­bury was born in Cy­clone, W.Va., on March 12, 1939. His fa­ther died af­ter a min­ing ac­ci­dent when Mr. Can­ter­bury was 9. His mother wanted to “make certain that her chil­dren did not fol­low their fa­ther into the coal mines,” Mr. Can­ter­bury’s sis­ter said.

Af­ter his surg­eries, the FBI trans­ferred Mr. Can­ter­bury to po­si­tions in warmer cli­mates. He left the FBI in 1962 and moved even­tu­ally to Ohio, where he worked for a steel com­pany, the Ohio State High­way Pa­trol and as a sher­iff ’s of­fice dis­patcher be­fore re­tir­ing on dis­abil­ity.

His mar­riage to Lil­lian Hyde ended in di­vorce. Sur­vivors in­clude three broth­ers, as well as his sis­ter. She said that her brother suf­fered from de­pres­sion as he first con­fronted his dis­abil­ity but that, as he aged, he “ac­cepted his new re­al­ity” with grace.

Not un­til about a decade ago, when Meisel in­ter­viewed him, did Mr. Can­ter­bury learn of the far-reach­ing ef­fects of his case.

“We cer­tainly all ben­e­fited from the changes in the law re­sult­ing from the fact that this case took place,” Jerry Menikoff, head of the of­fice for hu­man re­search pro­tec­tions at the U.S. Health and Hu­man Ser­vices De­part­ment, said in an in­ter­view. “The law be­gan a process of im­prove­ment in fol­low­ing more eth­i­cal stan­dards, but un­for­tu­nately for Jerry Can­ter­bury him­self, it didn’t help him.”

FAM­ILY PHOTO

Jerry Can­ter­bury’s suit over his paral­y­sis failed but the case al­tered mod­ern medicine.

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