Precourt v. Frederick, S-3457

• Decision Date: 19 August 1985
• Docket Number: No. S-3457,S-3457
• Citation: 395 Mass. 689,481 N.E.2d 1144
• Parties: . 1 v. Albert R. FREDERICK, Jr. Supreme Judicial Court of Massachusetts, Suffolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1144

481 N.E.2d 1144

395 Mass. 689

Wilfred E. PRECOURT et al. ¹ v. Albert R. FREDERICK, Jr.

No. S-3457.

Supreme Judicial Court of Massachusetts Suffolk.

Submitted Jan. 10, 1985.

Decided Aug. 19, 1985.

Edward B. Hanify, Boston, (Thomas H. Hannigan, Jr., Boston, with him) for defendant.

William E. Searson, III, Boston, (John F. Sheehan and James P. McCarthy, Boston, with him) for plaintiffs.

Kenneth Laurence, Ira S. Yanowitz, and James R. Pingeon, Boston, for Massachusetts Medical Society & others, amici curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and O'CONNOR, JJ.

O'CONNOR, Justice.

In Harnish v. Children's Hosp. Medical Center, 387 Mass. 152, 155, 439 N.E.2d 240 (1982), we said 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." We defined "materiality" as "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 156, 439 N.E.2d 240, quoting from Wilkinson v. Vesey, 110 R.I. 606, 627, 295 A.2d 676 (1972). In this case, we consider whether the evidence presented at trial, viewed most favorably to the plaintiffs, was legally sufficient to warrant a finding that the defendant physician violated that duty. More precisely, the question is whether the jury properly could have found that the physician failed to disclose to the patient medical information that the physician reasonably should have recognized as material to the patient's decision whether to undergo surgery. See Harnish, supra, 387 Mass. at 155-156, 439 N.E.2d 240. ²

The plaintiffs commenced this action in April, 1980, alleging that the defendant, Albert R. Frederick, Jr., a physician, negligently prescribed for the plaintiff Wilfred Precourt a drug called Prednisone, and that, as a result, Precourt developed severe damage to the bones of both his hips. Precourt sought damages for his personal injuries, and his wife, Elizabeth, sought damages for her loss of consortium. After our decision in Harnish, supra, the plaintiffs amended their complaint to allege, in addition to negligence, that, although Frederick knew or reasonably should have known that the use of Prednisone presented a risk of the type of hip damage that Precourt sustained, Frederick nevertheless prescribed Prednisone for Precourt without informing him of that risk. ³ The trial judge denied Frederick's motions for directed verdicts, but the jury found for Frederick on the counts alleging negligence. The jury found for Precourt on his lack of informed consent claim, and they awarded Precourt $800,000 and Elizabeth $200,000. Frederick moved for judgment notwithstanding the verdicts or for a new trial. The judge denied Frederick's motion, although he conditioned his denial of a new trial of Elizabeth's claim on her remitting $100,000, which she thereafter did. Frederick appealed from the judgments for the plaintiffs and from the denial of his motion for judgment notwithstanding the verdict, and we transferred the case to this court on our own motion. Frederick challenges the denial of his motions and he challenges various aspects of the judge's charge to the jury as well. We do not reach the latter challenges because we hold that the evidence was legally insufficient to warrant submission of the case to the jury. We reverse the judgments for the plaintiffs.

We summarize the evidence. In doing so, we follow the familiar rule that, "in reviewing the denial of the defendant's motions for directed verdict and judgment notwithstanding the verdict, we will construe the evidence most favorably to the plaintiff and disregard that favorable to the defendant." Cimino v. Milford Keg, Inc., 385 Mass. 323, 326, 431 N.E.2d 920 (1982). In April, 1976, while Precourt was repairing a truck in his yard, some metal flew into his left eye and became embedded there. A physician removed a sliver from just beneath the eye's surface, but Precourt's eye failed to improve. By August, 1976, the eye was almost legally blind and was sensitive to light. The physician discovered a piece of metal lodged in the back of Precourt's eye, and he referred Precourt to Frederick, an ophthalmic surgeon practicing at the Massachusetts Eye and Ear Infirmary. Frederick specialized in surgery involving the backs of human eyes. After examining Precourt's eye, Frederick advised him to undergo surgery to remove the metal. The proposed surgery had a ninety per cent probability of restoring vision to the eye.

In September, 1976, Precourt was admitted to the Massachusetts Eye and Ear Infirmary, and Frederick surgically removed the piece of metal from the retina of Precourt's eye. After surgery, Frederick placed Precourt on a course of treatment with the drug Prednisone, a steroid used by opthalmic surgeons to control inflammation. Precourt took Prednisone for approximately ninety days following the operation. Initially, the vision in Precourt's left eye improved, but thereafter it deteriorated so that, by December, 1976, that eye was blind. Nevertheless, Precourt returned to work as an electrician.

In the spring of 1977, Precourt and Frederick discussed the possibility of a second operation to remove scar tissue that had resulted from the first operation. Frederick told Precourt that a second operation had only a ten per cent probability of restoring vision to the eye. In March, 1977, Precourt again entered Massachusetts Eye and Ear Infirmary, and Frederick performed a second operation on Precourt's left eye. After that operation, Frederick placed Precourt on Prednisone for approximately fifty-five more days. Precourt never regained vision in his eye.

In the succeeding years, Precourt's hips bothered him, and in March, 1980, physicians diagnosed his problem as aseptic necrosis of both hips. Aseptic necrosis involves the death of the bones of the joint. Prednisone caused Precourt's aseptic necrosis. At the time of trial, Precourt had undergone a total replacement of his right hip, and he planned to undergo the same procedure on his left hip. As a result of his hip problems, Precourt could no longer work as an electrician.

The evidence also showed the following. Frederick prescribed Prednisone after surgery for fifty to seventy-five per cent of the patients on whom he operated. Frederick had practiced opthamology since 1963, and he had not known of any of his patients' developing aseptic necrosis following the use of Prednisone. However, before operating on Precourt, Frederick knew from reading, attending conferences and meetings, and discussions with colleagues, of an association between the use of Prednisone and aseptic necrosis. Frederick knew that, when aseptic necrosis develops, the process of bone death is irreversible, and he described aseptic necrosis as one of the "most prominent" musculoskeletal complications of Prednisone. Frederick also knew that the Physician's Desk Reference--a book frequently referred to by Frederick and other physicians--listed forty-one possible complications associated with the use of Prednisone, including aseptic necrosis, and that it listed hypertension (elevated blood pressure) and renal impairment as relative contraindications for Prednisone use. Frederick knew before operating on Precourt that Precourt drank six "beers" daily, that he had slightly elevated blood pressure, and that he had a history of gouty arthritis and of a kidney stone.

Precourt testified that Frederick did not mention to him either the likelihood that he would have to take Prednisone or the reported association between Prednisone and aseptic necrosis. Precourt testified that after the first operation Frederick mentioned Prednisone only to prescribe it and to explain its purpose. Precourt also testified that, before the second operation, Frederick told him that he "had everything to gain and nothing to lose" from the proposed surgery. In his testimony, Frederick agreed that he did not tell Precourt that "he was in danger of possibly coming down with aseptic necrosis of the hip."

Barry Fisherman, an ophthalmologist called as a witness by the plaintiffs, testified that, in his opinion, before prescribing Prednisone for a patient a physician should inform the patient of the major risks of Prednisone use. He also testified that aseptic necrosis was one of those risks. In response to a hypothetical question, Fisherman testified that, because Precourt had "hypertension and arthritis and the history of alcohol consumption as well as kidney stones," Precourt should have been informed that the Prednisone "could cause additional complications to those systems, such as the hypertension could be worse. There could be a development of a peptic ulcer which could perforate and bleed and the musculoskeletal system, such as the arthritis, could be made worse with osteoporosis or [aseptic] necrosis."

Melvin W. Kramer, an internist called by the plaintiffs, testified that the development of the side effects of Prednisone relates directly to the amount of Prednisone taken and the length of time that the patient takes it, that Precourt's treatment included a "high dose, long course of therapy," and that, in his opinion, the cumulative effect of the courses of Prednisone that Precourt took caused Precourt to develop aseptic necrosis. Kramer testified that a physician "is obliged to make warning statements regarding possibilities that the medicine may alter or change" medical conditions such as those contained in Precourt's history, and that "[t]he combination of sustained steroid therapy in a cumulative fashion adding up to many weeks, many months of therapy, has the ability to alter body chemistry...