Before Adams and Rosenn, Circuit Judges, and Lacey, District Judge.*fn*
In this diversity suit, Olympia Maggipinto charges the defendant, an oral surgeon, with dental malpractice and with performing oral surgery upon her without obtaining her informed consent. Her malpractice claim, grounded upon injury to her right lingual nerve, was dismissed on defendant's motion for a directed verdict, Fed.R.Civ.P. 50(a). The informed consent claim resulted in a jury verdict in defendant's favor.*fn1
On this appeal Mrs. Maggipinto contends that the district court erred in granting the motion for a directed verdict and in its instructions to the jury on the law of informed consent. We find no error in the trial judge's instructions on the informed consent claim; however, we remand the matter to the trial court for an explication of its reasons for granting the defendant's motion for directed verdict.
On March 21, 1975, the defendant extracted Mrs. Maggipinto's left and right lower second molars and removed by excision her impacted lower right third molar. Shortly after this surgery, she complained of numbness of the right side of the tongue. It is undisputed that this condition is associated with impairment of the lingual nerve.
Mrs. Maggipinto's contention was that the defendant, in excising her lower right third molar, had pierced the lingual plate and severed the lingual nerve.*fn2 The defendant admitted that his surgery had caused injury to the nerve. He denied, however, what was central to plaintiff's case, that Mrs. Maggipinto's lingual plate had been pierced and her lingual nerve severed.
At trial the plaintiffs called the defendant as an adverse witness, Fed.R.Evid. 611(c), and, under direct examination, in describing the operative procedure, defendant testified that he removed a portion of Mrs. Maggipinto's buccal plate and "dislodge(d) the . . . (lower right third molar) from its socket" and removed it. 26a. He stated that the procedure was "uneventful." 27a. He denied that he had perforated the lingual plate, 64a, 80a, and the record is without evidence that he did.
Defendant was next confronted with two medical texts, Oral Surgery (3d ed.), edited by Kurt H. Thoma (Thoma); and Oral and Maxillofacial Surgery (5th ed.), edited by Archer (Archer). He acknowledged both to be authoritative. 11a.*fn3 Plaintiffs' counsel, who contends here that he was proceeding under Fed.R.Evid. 803(18),*fn4 then proceeded in the fashion traditionally used to impeach an expert witness, referring the defendant to Thoma and asking (27a):
Do you agree with this statement: "Injury to the lingual nerve is not usually caused by the removal of a third molar, although it may occur if a tooth that erupts at the lingual surface of the jaw below the mylohyoid ridge must be removed. In ordinary cases injury of the lingual nerve would occur only by gross negligence, the slipping of a hand chisel or a lever used with uncontrolled application of excessive force." (emphasis added)
Defendant's counsel, apparently under the impression that plaintiff's counsel was simply trying to impeach the defendant, made only a limited objection to the question, namely, that no foundation had been laid for such impeachment. 27a. The district judge overruled the objection. 28a. No reference was made by anyone to Rule 803(18); the record at that point is barren of even a suggestion that the quoted portion of the text was intended to be, or would be, given substantive value.*fn5 The defendant then answered (28a): "I disagree with that statement wholeheartedly. I know it is written in Thoma's text and it is totally erroneous."
Thereafter plaintiffs' counsel referred the defendant to Archer's text (62a):
Doctor, I show you a book which you have considered authoritative, "Archer on Oral and Maxillofacial Surgery," and it says, "Complications," and I refer you to "Complications during or after removal of impacted malopposed or rudimentary teeth," and can you tell me in the nineteen things that it mentions, does it mention a permanent injury to the lingual nerve?
The defendant responded (63a-64a):
It does not. However, No. 18 . . . "forcing an apex through the lingual plate of the mandibular sub-lingual space," which is pertinent. They mention ...