Halley v. Birbiglia

Decision Date07 December 1983
Citation458 N.E.2d 710,390 Mass. 540
PartiesRobert M. HALLEY et al. 1 v. Vincent P. BIRBIGLIA et al. 2
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

John F. Hurley, Jr., Boston, for plaintiffs.

David M. Gould, Boston, for Karl J. Benedict.

Douglas Q. Meystre, Worcester, for Vincent P. Birbiglia.


LYNCH, Justice.

This case is before us on appeal from a judgment of the Superior Court dismissing the plaintiffs' complaint alleging medical malpractice against the defendants. A medical malpractice tribunal, convened pursuant to G.L. c. 231, § 60B, heard the plaintiffs' claims of negligence and lack of informed consent brought against the defendant Doctors Birbiglia and Benedict, and found that the plaintiffs' offer of proof was not sufficient to raise a question appropriate for judicial inquiry. The plaintiffs elected not to post a bond in accordance with G.L. c. 231, § 60B, and, as a result, a judge of the Superior Court dismissed their action. The plaintiffs appealed, and we transferred the case to this court on our own motion. We sustain the judgment of the Superior Court as to Dr. Birbiglia, but reverse the dismissal of the plaintiffs' action against Dr. Benedict.

As an initial matter, this appeal is properly before us since it is for the plaintiffs "to decide whether [they are] willing to assume the potentially fatal risks of pretrial review after failing or refusing to file a bond," such risks to include that "of being out of court entirely if [their] claim of error by the tribunal is decided adversely." McMahon v. Glixman, 379 Mass. 60, 64, 393 N.E.2d 875 (1979). Our standard of review in this action is akin to that used in evaluating a defendant's motion for a directed verdict; the plaintiffs must present evidence sufficient to raise a question suitable for judicial inquiry, however, any "appraisal of the weight and credibility of [such] evidence is impermissible." Gugino v. Harvard Community Health Plan, 380 Mass. 464, 468, 403 N.E.2d 1166 (1980). See Kapp v. Ballantine, 380 Mass. 186, 191, 402 N.E.2d 463 (1980).

We summarize the material allegations contained in the plaintiffs' offer of proof. The plaintiff, Robert M. Halley, a child approximately one and one half years old at the time of the circumstances at issue, was admitted to St. Vincent Hospital in Worcester, on October 9, 1974. Following a routine immunization shot some weeks before, Robert's parents noticed that he had developed a limp in his left leg, and they brought him to the hospital for examination. From Robert's admission until October 16, 1974, among the medical personnel evaluating Robert's condition was the defendant Dr. Vincent P. Birbiglia, a neurologist. Dr. Birbiglia ordered a series of neurological tests to be performed during this period, all of which yielded negative or inconclusive results.

On or about October 17, Dr. Birbiglia determined that it would be advisable for Robert to receive an arteriogram, a procedure by which a catheter is passed into an artery and thereafter a dye is injected, which can then often be employed as a valuable tool in diagnosis. On appeal, the plaintiffs do not contest the appropriateness of this procedure. The arteriogram was performed on Robert by the defendant Dr. Karl J. Benedict, a radiologist, on the morning of October 18, and appeared to proceed without incident. However, after Robert returned to his room from the test, it was noticed that his lower right extremity was cool and that there was an absence of a pulse in the superficial femoral artery. This condition, induced by blood clots, steadily worsened and an operation that evening was unable to restore blood flow to Robert's right leg. 3 A second operation was performed the next day, and this time blood flow was restored to the leg. However, the latter operation was too late to save Robert's foot, which after extended observation was finally amputated on December 11, 1974.

The plaintiffs allege that both doctors failed to obtain an informed consent to the performance of the arteriogram, and that such failure amounts to medical malpractice. The plaintiffs' affidavit states that neither defendant discussed the risks of the medical procedure with them and further claims that other hospital personnel (not named as defendants) assured them that the procedure was a safe one. Further, the plaintiffs' expert, Dr. W. Robert Felix, Jr., observed that "it is customary to disclose the risk associated with an arteriogram and this is especially true when the patient is less than a year and one half old because there are known risks, especially thrombosis [clotting], which accompany an arteriogram and the incidence of occurrence is greatly increased when the arteriogram is performed on a child." 4

In response, the defendants argue that at that time neither of them had a duty to inform Robert's parents of any significant risks involved in the contemplated test. The medical malpractice tribunal agreed, noting that it did not "think that the state of the law ... in Massachusetts ... permits a conclusion of negligence merely from a failure to give informed consent." The tribunal went on to "state for the record that, as a matter of law if it were otherwise, there would be adequate evidence in this case to show that there was not informed consent, that is to say, the parents' affidavits would suffice to carry the case to the jury."

Although the doctrine of informed consent has existed in various forms since Justice (then Judge) Cardozo's sweeping assertion of it in 1914, Schloendorff v. Society of the N.Y. Hosp., 211 N.Y. 125, 105 N.E. 92 (1914), 5 overruled on other grounds, Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 (1957), Massachusetts courts have not expressed an opinion either in support of or against the doctrine until relatively recently. In Harnish v. Children's Hosp. Medical Center, 387 Mass. 152, 439 N.E.2d 240 (1982), which was decided after the tribunal's ruling, we explicitly endorsed the doctrine for the first time, holding that "a physician's failure to divulge in a reasonable manner to a competent adult patient sufficient information to enable the patient to make an informed judgment whether to give or withhold consent to a medical or surgical procedure constitutes professional misconduct and comes within the ambit of G.L. c. 231, § 60B." Id. at 154-155, 439 N.E.2d 240.

The defendants argue that the Harnish decision should not be applied retroactively to events occurring in 1974, noting that by its terms the opinion does not state whether it is retroactive or merely prospective. If it is applied to the 1974 arteriogram, the defendants claim, this will penalize doctors for failing to obtain informed consent at a time when such consent was not yet legally required. We find no merit in these contentions.

In general, changes in the common law brought about by judicial decisions are given retroactive effect. Tucker v. Badoian, 376 Mass. 907, 918-919, 384 N.E.2d 1195 (1978) (Kaplan, J., concurring). Certain exceptions have been carved out of this general guideline, which we reviewed in some detail in Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171 (1982), and which merit brief repetition here. As an initial matter, the class of decisions given only prospective application is usually limited to contract and property law cases, in which reliance upon existing judicial precedent often influences individual action. See Johnson Controls, Inc. v. Bowes, 381 Mass. 278, 409 N.E.2d 185 (1980) (insurance contracts); Rosenberg v. Lipnick, 377 Mass. 666, 389 N.E.2d 385 (1979) (antenuptial contracts). By contrast, under tort law, "reliance plays a much smaller part.... [I]t would be unreasonable to assert that potential tortfeasors often reflect upon possible tort liability before embarking on a negligent course of conduct." Payton v. Abbott Labs, supra 386 Mass. at 565-566, 384 N.E.2d 1195.

Such hypothetical reliance upon judicial precedent is especially unlikely in the instant case. Although the theory of informed consent was not explicitly recognized in Massachusetts until 1982, no Massachusetts court had rejected it prior to that time. On two occasions, we declined to express any opinion on the doctrine, since it was not squarely presented for decision. See Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 739, 370 N.E.2d 417 (1977); Schroeder v. Lawrence, 372 Mass. 1, 4-5, 359 N.E.2d 1301 (1977). However, even a brief survey of decisions in other jurisdictions and related Massachusetts case law would have persuaded a rational observer of the folly of drawing any negative inference from the lack of Massachusetts precedent in 1974. Prior to 1974, a great many courts and commentators had already endorsed varying forms of the doctrine of informed consent. 6 Its precursors could also be seen in Massachusetts, in prior decisions on related issues which indicated support for a broad, rather than narrow, construction of a physician's duty of disclosure. See Berardi v. Menicks, 340 Mass. 396, 164 N.E.2d 544 (1960) (failure to inform patient that surgical procedure was not complete and that additional operation was required could be found to be negligence); Haggerty v. McCarthy, 344 Mass. 136, 181 N.E.2d 562 (1962) (failure to complete operation which resulted in substantial medical risk may create duty to inform). Such cases, and developments in other jurisdictions, cast doubt on any claims of reasonable reliance on judicial precedent advanced by the defendants.

In addition to focusing on reliance as a key factor in determining whether a decision should be given retroactive effect, our opinion in Payton highlighted another aspect of the determination: "whether the purposes of the rule will be served by retroactive application." 386 Mass. at 569, 437 N.E.2d 171. In Harnish, we stated that the...

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    • U.S. District Court — District of Massachusetts
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    ...and 1960s because the common law doctrine of informed consent did not develop until after that time. See, e.g., Halley v. Birbiglia, 390 Mass. 540, 545, 458 N.E.2d 710 (1983) ("[T]he theory of informed consent was not explicitly recognized in Massachusetts until 1982...."). This argument ag......
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