## Facts

- Sandra J. Hartke had a serious gynecologic history and had been warned that another pregnancy could be life-threatening.
- In 1978, after becoming pregnant, she underwent an abortion and sought sterilization to avoid future pregnancy.
- Dr. William McKelway recommended and performed a laparoscopic tubal cauterization rather than a hysterectomy.
- Hartke and her boyfriend testified that McKelway represented the sterilization as “100 percent” effective and did not disclose any residual risk of pregnancy; trial evidence indicated a failure rate of roughly 0.1–0.3%.
- Hartke became pregnant in 1979, confirmed the pregnancy was normal, carried to term, and delivered a healthy child in 1980; she later underwent a second sterilization procedure (tubal ligation).
- Hartke sued for negligent performance, failure to obtain informed consent, and breach of warranty in a diversity malpractice action.
- A jury found McKelway negligent and found a failure to disclose a material risk; it awarded medical expenses, pain and suffering/mental anguish, and substantial anticipated child-rearing costs.
- Post-trial, the district court struck child-rearing damages, remitted some medical expenses, and ordered a new trial on certain causation/standard-of-care issues; both parties cross-appealed.

## Issues

1. Whether, under District of Columbia law, a plaintiff in a failed-sterilization (“wrongful conception”) case may recover child-rearing expenses for a healthy child.
2. Whether an informed-consent plaintiff must give explicit “in haec verba” testimony that she would have refused the procedure if properly informed, or whether causation may be shown circumstantially under an objective test.
3. Whether a 0.1–0.3% risk of pregnancy after laparoscopic tubal cauterization is a “material” risk requiring disclosure to a reasonable patient in Hartke’s position.

## Decision

- The court affirmed the refusal to award child-rearing expenses for raising the healthy child to majority.
- The court held that “in haec verba” causation testimony is not required; causation may be inferred from circumstantial evidence under an objective standard.
- The court held that, despite its low probability, the risk of post-procedure pregnancy could be material given Hartke’s medical circumstances and the severity of the potential consequences.
- The court affirmed the judgment upholding liability and pregnancy-related damages while disallowing child-rearing costs.

## Legal Principles

- In wrongful-conception cases involving the birth of a healthy child, recoverable damages may be limited to harms the patient sought to avoid through the medical intervention.
- Child-rearing expenses may be denied where the evidence shows the sterilization was sought primarily for therapeutic reasons (avoiding medical danger), and the child is valued, making rearing costs an inappropriate measure of the injury.
- In informed-consent claims, causation is assessed objectively—what a reasonable person in the patient’s position would have decided if properly informed—rather than requiring a plaintiff’s formulaic assertion of refusal.
- A risk may be “material” even if statistically small when the potential harm is severe and the patient’s medical circumstances make the consequence especially significant.

## Conclusion

The D.C. Circuit upheld liability and pregnancy-related damages for negligent sterilization and lack of informed consent but affirmed the denial of child-rearing costs for a healthy child, applying an objective informed-consent framework that allows circumstantial proof of causation and treats low-probability, high-severity risks as potentially material.


Hartke v. McKelway, 707 F.2d 1544 (D.C. Cir. 1983)