Kraemer v. United States

Navy veteran Ronald Kraemer (plaintiff) received treatment for neck and back problems at a Veterans Affairs hospital owned and operated by the United States government (defendant). In 2013, Kraemer had a spinal-fusion surgery performed by Dr. Neal Patel. The morning of the surgery, Patel discussed the procedure with Kraemer and his wife. The contents of that discussion were disputed. Patel claimed that he provided information about the procedure’s scope and risks. However, Kraemer claimed that Patel provided only basic information about the type of procedure and did not discuss risks, including the risk of allergic reaction to the materials being used. Prior to the surgery, Kraemer also signed a consent form that described the type of procedure being performed and identified many known risks and side effects. The form, which was the hospital’s standard template form, contained (1) Patel’s signature attesting that he had discussed all relevant aspects of treatment with the patient and (2) Kraemer’s signature attesting that he had been informed of the benefits and risks of the procedure plus available alternatives. Although the surgery itself was successful, Kraemer developed hives two days later. The hives were ongoing, and over the next few months, Kraemer saw several doctors in an attempt to diagnose the problem. Eventually, a neurosurgeon suggested, based on the hives’ timing, that Kraemer was likely allergic to the titanium screws used in the surgery. Kraemer sued the hospital under the Federal Tort Claims Act, arguing that Patel failed to obtain Kraemer’s informed consent to the surgery because Patel had not disclosed the risk of hives from allergic reaction. The hospital moved for summary judgment, arguing that Kraemer had not offered the expert testimony required to support a lack-of-informed-consent claim. The district court considered the motion.