Kissinger v. Lofgren, s. 86-1372

• Decision Date: 06 October 1987
• Docket Number: Nos. 86-1372,86-1402 and 86-1403,s. 86-1372
• Citation: 836 F.2d 678
• Parties: 24 Fed. R. Evid. Serv. 612 Walter B. KISSINGER, Plaintiff, Appellee, v. Robert H. LOFGREN, et al., Defendant, Appellee. John P. Remensnyder, Defendant, Appellant. Walter B. KISSINGER, Plaintiff, Appellee, v. Robert H. LOFGREN, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 678

836 F.2d 678

24 Fed. R. Evid. Serv. 612

Walter B. KISSINGER, Plaintiff, Appellee, v. Robert H. LOFGREN, et al., Defendant, Appellee.

John P. Remensnyder, Defendant, Appellant.

Walter B. KISSINGER, Plaintiff, Appellee, v. Robert H. LOFGREN, Defendant, Appellant.

Nos. 86-1372, 86-1402 and 86-1403.

United States Court of Appeals, First Circuit.

Heard Oct. 6, 1987.

Decided Jan. 5, 1988.

Raymond J. Kenney, Jr., with whom Linda E. Neary and Martin, Magnuson, McCarthy & Kenney, Boston, Mass., were on brief for appellant John P. Remensnyder.

Joseph P. Musacchio with whom Robert P. Powers and Melick & Porter, Boston, Mass., were on brief for appellant Robert H. Lofgren.

Joel A. Kozol with whom Robert D. Kozol, Jane P. Morse and Friedman & Atherton, Boston, Mass., were on brief for plaintiff, appellee.

Before COFFIN, Circuit Judge, BROWN, ^* Senior Circuit Judge, and TORRUELLA, Circuit Judge.

TORRUELLA, Circuit Judge.

Walter B. Kissinger suffered from severe and chronic pain following an operation performed by Dr. Robert H. Lofgren and assisted by Dr. John P. Remensnyder. Kissinger brought suit against the doctors alleging negligence and lack of informed consent under Massachusetts tort law. The jury found that the defendants had not negligently carried out the operation. However, the jury concluded that the doctors had failed to advise Kissinger beforehand of all significant risks and consequences of surgery and awarded $275,000 in damages.

The defendants have appealed from the court's denial of their motions for a directed verdict, judgment notwithstanding the verdict and for a new trial. Both defendants attack the sufficiency of the evidence with respect to the informed consent count. While Remensnyder also challenges the court's instructions relative to that count, Lofgren argues that the district court erred in excluding certain evidence for lack of authentication. We affirm the decision of the court below.

I. Background

Viewing the evidence in the light most favorable to the plaintiff and drawing all reasonable inferences in his favor, Payton v. Abbott Labs., 780 F.2d 147, 156 (1st Cir.1985), the record establishes the following. In the early 1970's, Kissinger began experiencing mild discomfort in his upper left gum. Following unsuccessful dental treatments, Kissinger sought the advice of Drs. Selfe and Som, two New York based otolaryngologists ("ENT" specialists), who diagnosed in 1978 a benign tumor covering a significant portion of his sinus. Both doctors recommended a "Caldwell-Luc" surgical procedure to remove the tumor. These doctors also explained to Kissinger that the "only tricky part of the operation" was to avoid damage to a nerve in the sinus area.

Kissinger obtained a third opinion from Dr. Gerald Austin, Chief of Surgery at Massachusetts General Hospital (Mass. General). Dr. Austin concurred in the previous diagnoses of Drs. Selfe and Som, and discussed with Kissinger the possibility of malignancy. Dr. Austin, however, did not mention the possibility of risk of injury to a nerve from the Caldwell-Luc operation. Dr. Austin arranged to have the surgery performed by the defendant Remensnyder, Chief of Plastic and Reconstructive surgery at Mass. General, and the one who had admitted Kissinger into the hospital. Remensnyder repeated to Kissinger that the "delicate part" of the operation was to avoid injuring the "infraorbital nerve." Subsequently, Remensnyder, who had performed Caldwell-Luc operations in the past, requested the more experienced Doctor Lofgren, an ENT specialist from the Massachusetts Eye and Ear Infirmary, to perform this operation. Lofgren recommended the operation to Kissinger because it had a "reasonable chance of relieving his pain" and removing the tumor. The only surgical risk mentioned by Lofgren was the possibility of temporary numbness.

On April 7, 1978, Lofgren, with the assistance of Remensnyder, performed the Caldwell-Luc surgery. A day after surgery, Kissinger experienced pain, and "complained bitterly of an area of numbness which corresponds to the left-infra/orbital nerve distribution." Kissinger testified that he continues to suffer from chronic, excruciating pain.

Uncontroverted testimony shows that the doctors neither informed Kissinger prior to surgery about the possibility that chronic pain could result from an injury to the nerve from the Caldwell-Luc operation, nor did they tell him about an alternative surgical procedure, intranasal anthostomy, which could have lessened the risk of that injury occurring.

II. Discussion

A. The Charge to the Jury and the Sufficiency of the Evidence

The doctrine of informed consent in Massachusetts requires a plaintiff to establish 1) the existence and breach of a duty owed by the defendant to inform about significant risks, consequences, and options of a medical treatment, and 2) that breach of this duty caused harm to the plaintiff. Precourt v. Frederick, 395 Mass. 689, 481 N.E.2d 1144, 1145 (Mass.1985); Harnish v. Children's Hosp. Med. Center, 387 Mass. 152, 439 N.E.2d 240, 242, 245 (Mass.1982).

1. The duty of care and its breach

The four principal components of the duty of care element are that 1) there exists a "sufficiently close" doctor-patient relationship, 2) the information subject to disclosure is known or reasonably should have been known by the doctors, 3) the information is such that the doctors should reasonably recognize that it would be material to the plaintiff's decision whether to forego treatment, and 4) the doctors failed to disclose the material information. Halley v. Birbiglia, 390 Mass. 540, 458 N.E.2d 710, 715 (Mass.1983).

We find sufficient evidence for the jury to have found that the doctor-patient relationship was "sufficiently close" to impose a duty to inform as to both defendants. The fact that Dr. Lofgren was the surgeon in charge of the operation is alone enough to make the relationship sufficiently close. See Harnish, 439 N.E.2d at 244. Dr. Remensnyder also had a similar duty of care because he admitted Kissinger into Mass. General, advised the patient prior to the operation, and assisted Lofgren during surgery. See Halley, 458 N.E.2d at 715.

Secondly, expert testimony sufficiently established that the doctors knew or reasonably should have known that chronic pain was one consequence of a severe injury to the infraorbital nerve occurring during the Caldwell-Luc operation. Dr. Gregory F. O'Brien, an otolaryngologist, testified for the plaintiff that the risk of injury to the nerve is known or reasonably should be known by every physician who performs that kind of operation. Dr. Remensnyder himself admitted that such an injury is a "known risk" of the Caldwell-Luc procedure. Dr. O'Brien also opined that chronic pain is a consequence of a severe injury to the nerve that should be communicated to the patient before surgery. The additional fact that both defendants had prior experience with the Caldwell-Luc procedure lends support to a finding that they knew or reasonably should have known of its risks and consequences.

The third component of the duty of care analysis, the materiality of the information, lies at the crux of this case. Dr. Lofgren complains that the evidence was insufficient to go to the jury on this question. Whether the evidence was legally sufficient to sustain the verdict is determined by the meaning of "materiality" under Massachusetts law. According to the Massachusetts Supreme Judicial Court, information is "material" when a physician reasonably should recognize it as necessary for his patient to make an informed decision whether to forego proposed treatment. Harnish, 439 N.E.2d at 743. Certain risks inherent in any operation, such as infections, should reasonably be known to every patient and need not be disclosed. Id. Other risks which are "possible," but remote or unforeseeable due to their "negligible" probability of occurrence, are immaterial as a matter of law. See Precourt, 481 N.E.2d at 1148-49.

In Precourt, there was an absence of expert testimony as to whether a degenerative bone disorder (aseptic necrosis) was a foreseeable result of a course of treatment with the drug "Prednisone." Expert testimony that the risk of contracting aseptic necrosis was "high" if the medication was taken in "high" doses, during a "long course of therapy," was deemed speculative by the Court. Id. at 1149. Despite evidence to the effect that aseptic necrosis was one of the "most prominent" musculoskeletal complications of Prednisone, it was inappropriate to submit the materiality issue to the jury in the absence of expert testimony as to the actual likelihood of that risk occurring. Precourt did not consider, however, whether the materiality analysis requires an expert to assess the risk of occurrence in terms of numerical data and we refuse to adopt such a rule. ¹

In this case the jury had evidence from which to find the likelihood of occurrence of the harm. There was ample evidence that the risk of injury to the nerve was substantial, "a known risk," and one that requires warning the patient. ² It also was uncontroverted that the injury could produce ill effects ranging from numbness to severe pain. In addition there was evidence that the risk of severe pain was not remote, that an otolaryngologist had seen instances of severe injury in his practice, and that it happened often enough that a facial pain expert treated "many dozens of patients" who were in Kissinger's same shoes. This kind of testimony is much less tenuous than the statement that a "long" course of treatment, with "high" dosages, creates a "high" risk of injury, as in Precourt. In light of the expert testimony that injury to the nerve is not a freak accident of the Caldwell-Luc procedure, "it became the jury's responsibility to decide whether that peril was of sufficient magnitude to bring the disclosure duty into play." Canterbury v. Spence, 464 F.2d 772, 794 (D.C.Cir.), cert. denied, 409...