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The doctors' testimony concerning their typical practices was the type of testimony that can be admitted under Rule 406.
Plaintiff Melvin Kornberg underwent a left-ear stapedectomy in February 2009 in an attempt to improve his hearing. Kornberg’s left chorda tympani nerve was damaged during the procedure, leading to a partial loss of his sense of taste. Kornberg claimed that he was not given sufficient information about the risks of the stapedectomy to allow him to give informed consent to the operation. Because the stapedectomy was performed by doctors acting within the scope of their employment with the United States, Kornberg sued Defendant, the United States of America under the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b)(1), 2674. Kornberg appealed from the district court's judgment in favor of the United States of America, following a bench trial. Kornberg first argues that the district court erred by admitting evidence of the regular practices and routines of two of the doctors who treated Plaintiff and of the medical center at which Kornberg received treatment. c next argues that the district court erred in concluding that Kornberg gave informed consent to the surgery.
Did Kornberg give informed consent to the surgery?
The court found that the doctors testified that it was their regular practice to go over the risks of surgery with patients at preoperative visits, and Kornberg had such a visit with the doctors four days before his surgery. One of the doctors testified that she performed approximately 40 stapedectomies during her six years of residency, and that in each preoperative visit with a stapedectomy patient she "absolutely" went over the risk of damage to the chorda tympani nerve. The doctors' testimony concerning their typical practices was the type of testimony that can be admitted under Rule 406. Next, the court held that the district court did not err in finding that Kornberg gave informed consent. The district court did not clearly err in finding that Plaintiff was informed of the risks of the stapedectomy—including the risk that his left chorda tympani nerve might be damaged—in a way that allowed him to make an "intelligent choice" about whether to undergo the procedure. Arato v. Avedon, 5 Cal. 4th 1172, 23 Cal. Rptr. 2d 131, 858 P.2d 598, 606-07 (Cal. 1993) (internal quotation marks omitted). The district court permissibly found that much of Kornberg’s testimony was not credible and that the doctors' testimony was credible. In view of those determinations and the routine-and-habit evidence, the district court reasonably concluded that Kornberg gave informed consent.