Harnish v. Children's Hosp. Medical Center

• Decision Date: 13 August 1982
• Parties: Janine HARNISH v. CHILDREN'S HOSPITAL MEDICAL CENTER et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 240

439 N.E.2d 240

387 Mass. 152

Janine HARNISH v. CHILDREN'S HOSPITAL MEDICAL CENTER et al. ¹

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued March 5, 1982.

Decided Aug. 13, 1982.

Joseph G. Abromovitz, Boston, for plaintiff.

Joseph L. Doherty, Jr., Boston, for defendants.

Before LIACOS, ABRAMS, NOLAN and O'CONNOR, JJ.

O'CONNOR, Justice.

The plaintiff underwent an operation to remove a tumor in her neck. During the procedure, her hypoglossal nerve was severed, allegedly resulting in a permanent and almost total loss of tongue function.

The plaintiff's complaint charges the defendant physicians and hospital with misrepresentation and negligence in failing to inform her before surgery of the risk of loss of tongue function. The complaint alleges that the purpose of the operation was cosmetic, that the loss of tongue function was a material and foreseeable risk of the operation, and that, had the plaintiff been informed of this risk, she would not have consented to the operation. There is no claim that the operation was negligently performed.

A medical malpractice tribunal, convened pursuant to G.L. c. 231, § 60B, concluded that the plaintiff's offer of proof was insufficient to raise a question appropriate for judicial inquiry. The action was dismissed after the plaintiff failed to post a bond in accordance with G.L. c. 231, § 60B. The plaintiff appeals from the judgment of dismissal, claiming that her offer of proof satisfied the requirements of the directed verdict test, as defined in Kapp v. Ballantine, 380 Mass. 186, 402 N.E.2d 463 (1980), and Little v. Rosenthal, 376 Mass. 573, 578, 382 N.E.2d 1037 (1978). She argues that her offer of proof was sufficient to raise a question of liability under the doctrine of lack of informed consent. ² We reverse so much of the judgment of dismissal as applies to Drs. Holmes and Mulliken, and affirm the dismissal of the complaint against Dr. Gilman and Children's Hospital Medical Center.

1. The rule of liability. A medical malpractice tribunal has jurisdiction over actions for "malpractice, error or mistake against a provider of health care." G.L. c. 231, § 60B, inserted by St. 1975, c. 362, § 5. The performance of a surgical procedure by a physician without the patient's consent constitutes professional misconduct, is malpractice within G.L. c. 231, § 60B, and is subject to the procedures established by this statute. Lubanes v. George, 386 Mass. 320, 325, 435 N.E.2d 1031 (1982).

"There is implicit recognition in the law of the Commonwealth, as elsewhere, that a person has a strong interest in being free from nonconsensual invasion of his bodily integrity.... In short, the law recognizes the individual interest in preserving 'the inviolability of his person.' Pratt v. Davis, 118 Ill.App. 161, 166 (1905), aff'd, 224 Ill. 300, 79 N.E. 562 (1906). One means by which the law has developed in a manner consistent with the protection of this interest is through the development of the doctrine of informed consent." Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 738-739, 370 N.E.2d 417 (1977). See also In the Matter of Spring, 380 Mass. 629, 405 N.E.2d 115 (1980); Cobbs v. Grant, 8 Cal.3d 229, 242, 104 Cal.Rptr. 505, 502 P.2d 1 (1972); Schloendorff v. Society of the New York Hosp., 211 N.Y. 125, 129-130, 105 N.E. 92 (1914). "[I]t is the prerogative of the patient, not the physician, to determine ... the direction in which ... his interest lie." Cobbs v. Grant, supra, 8 Cal.3d at 242, 104 Cal.Rptr. 505, 502 P.2d 1. Canterbury v. Spence, 464 F.2d 772, 781 (D.C.Cir.), cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972). Every competent adult has a right "to forego treatment, or even cure, if it entails what for him are intolerable consequences or risks however unwise his sense of values may be in the eyes of the medical profession." Wilkinson v. Vesey, 110 R.I. 606, 624, 295 A.2d 676 (1972). Knowing exercise of this right requires knowledge of the available options and the risks attendant on each. Canterbury v. Spence, supra at 780. Cobbs v. Grant, supra 8 Cal.3d at 242-243, 104 Cal.Rptr. 505, 502 P.2d 1. We hold, therefore, 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. ³

While we recognize that a patient ordinarily cannot make an intelligent decision whether to undergo a medical or surgical procedure without receiving from the physician information significant to the decision, Canterbury v. Spence, supra at 780, 782, we also recognize that there are limits to what society or an individual can reasonably expect of a physician in this regard. Medical matters are often complex. Recommendations of treatment frequently require the application of considerable medical knowledge gained through extensive training and experience. Communication of scientific information by the trained physician to the untrained patient may be difficult. The remotely possible risks of a proposed treatment may be almost without limit. The patient's right to know must be harmonized with the recognition that an undue burden should not be placed on the physician. These interests are accommodated by the rule that we adopt today, that a physician owes to his patient the duty to disclose in a reasonable manner all significant medical information that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure. The information a physician reasonably should possess is that information possessed by the average qualified physician or, in the case of a specialty, by the average qualified physician practicing that specialty. Brune v. Belinkoff, 354 Mass. 102, 109, 235 N.E.2d 793 (1968). Haggerty v. McCarthy, 344 Mass. 136, 139, 181 N.E.2d 562 (1962). What the physician should know involves professional expertise and can ordinarily be proved only through the the testimony of experts. See id. at 139-142, 181 N.E.2d 562. Wilkinson v. Vesey, supra 110 R.I. at 626, 295 A.2d 676. However, the extent to which he must share that information with his patient depends upon what information he should reasonably recognize is material to the plaintiff's decision. Canterbury v. Spence, supra at 787. Wilkinson v. Vesey, supra at 627-628, 295 A.2d 676. "Materiality may be said to be the significance a reasonable person, in what the physician knows or should know is his patient's position, would attach to the disclosed risk or risks in deciding whether to submit or not to submit to surgery or treatment." Id. at 627, 295 A.2d 676. The materiality determination is one that lay persons are qualified to make without the aid of an expert. Canterbury v. Spence, supra at 784-785. Wilkinson v. Vesey, supra at 625, 295 A.2d 676. Appropriate information may include the nature of the patient's condition, the nature and probability of risks involved, the benefits to be reasonably expected, the inability of the physician to predict results, if that is the situation, the irreversibility of the procedure, if that be the case, the likely result of no treatment, and the available alternatives, including their risks and benefits. Canterbury v. Spence, supra at 781-783, 787-788. The obligation to give adequate information does not require the disclosure of all risks of a proposed therapy, Wilkinson v. Vesey, supra at 627, 295 A.2d 676, or of information the physician reasonably believes the patient already has, such as the risks, like infection, inherent in any operation. Canterbury v. Spence, supra at 788.

Many jurisdictions have adopted the rule that a physician must disclose to his patient only such information as is customarily disclosed by physicians in similar circumstances. ⁴ We think that the better rule is the one we adopt today. The customary practice standard overlooks the purpose of requiring disclosure, which is protection of the patient's right to decide for himself. Canterbury v. Spence, supra at 783-787. Wilkinson v. Vesey, supra 110 R.I. at 625, 295 A.2d 676. Cobbs v. Grant, supra 8 Cal.3d at 243, 245, 104 Cal.Rptr. 505, 502 P.2d 1.

We recognize that despite the importance of the patient's right to know, there may be situations that call for a privilege of nondisclosure. Cobbs v. Grant, supra at 245-246, 104 Cal.Rptr. 505, 502 P.2d 1. For instance, sound medical judgment might indicate that disclosure would complicate the patient's medical condition or render him unfit for treatment. "Where that is so, the cases have generally held that the physician is armed with a privilege to keep the information from the patient .... The physician's privilege to withhold information for therapeutic reasons must be carefully circumscribed, however, for otherwise it might devour the disclosure rule itself. The privilege does not accept the paternalistic notion that the physician may remain silent simply because divulgence might prompt the patient to forego therapy the physician feels the patient really needs" (footnotes omitted). Canterbury v. Spence, supra at 789. A full discussion of the privilege is neither required nor attempted here, because the burden of proving it must rest with the physician, Canterbury v. Spence, supra at 791, and thus the question of privilege is inappropriate to the directed verdict standard to be applied to the plaintiff's offer of proof before the medical malpractice tribunal. Little v. Rosenthal, supra 376 Mass. at 578, 382 N.E.2d 1037. Kapp v. Ballantine, supra 380 Mass. at ---, 402 N.E.2d 463.

2. Causation. We turn to the question of causation. "An unrevealed risk that should have been made known must materialize, for otherwise the omission, however unpardonable, is legally without...