Rudolfo Ramirez v. United States

The issue in this case is whether a government physician’s failure to warn of risks attendant to surgery constitutes a misrepresentation within the meaning of the Federal Tort Claims Act (the Act), so that the patient is barred from bringing suit against the United States. We consider this case en banc to reexamine our earlier decisions bearing on the question.

In July 1973, Ramirez underwent a surgical procedure called a stapedectomy, performed to alleviate a hearing problem. The procedure involves placement of a stapes prosthesis in the patient’s ear. Some time after the surgery, Ramirez began to experience vertigo and a continued loss of hearing. To eliminate the condition, Ramirez underwent surgery a second time, in October 1973. The stapes prosthesis was removed. After the second operation, it was confirmed that Ramirez suffered a sensory hearing loss caused by a granuloma, a reaction to the stapes prosthesis that occurs in a small percentage of cases. He brought suit under the Act, 28 U.S.C. § 1346 , contending that failure to warn him of the risks of granuloma constituted negligence on the part of his government surgeon.

The district court, relying on our earlier…