Schroeder v. Lawrence
| Decision Date | 15 February 1977 |
| Parties | Luciene F. SCHROEDER v. Knowles B. LAWRENCE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Ralph C. Copeland, Wellesley, for plaintiff.
Robert G. Conley, Jacob J. Locke and David M. Gould, Boston, for defendant, submitted a brief.
Before QUIRICO, KAPLAN, WILKINS and LIACOS, JJ.
At the suggestion of her family doctor, the plaintiff Luciene F. Schroeder, then thirty-two years of age, complaining of a lump in her throat, went to see the defendant Knowles B. Lawrence, a general surgeon with a special interest in cancer and head and reck surgery. The defendant examined the plaintiff on May 17, 1966, and diagnosed her condition as an adenoma ('nontoxic' tumor) occupying most of the left lobe of the thyroid gland, and enlarging. In a letter of May 20, 1966, the defendant advised an operation to remove the adenoma. On July 6, 1966, he performed the indicated operation on the plaintiff. His diagnosis had been correct.
Following the operation the plaintiff complained of a tender throat and hoarse voice. The hoarseness continued as a permanent condition although mitigated over time.
On May 22, 1968, the plaintiff commenced the present action. The first and third counts of the substitute declaration, alleging negligence in the medical services provided and in the conduct of the operation, were for practical purposes abandoned. The second count charged the defendant with negligence in recommending an operation while failing to inform the plaintiff of the risks of the surgery or of possible alternative treatments. Relying on the recommendation, the plaintiff alleged, she submitted to the surgery, and in consequence she suffered injury to her vocal cord impairing her ability to speak, for which she sought money damages. 1
With the action at issue on the defendant's answer containing denials, it was not until November 19, 1974, that the plaintiff moved for summary judgment as to liability under Mass.R.Civ.P. 56, 365 Mass. 824 (1974), reserving the issue of damages. We may condense the substance of the papers filed in support of and in opposition to the motion.
The plaintiff asserted in her affidavit that the defendant had not warned her of the risks of the operation, and that, had she been told that injury to her vocal cords was such a risk, she 'would not have then, under those circumstances, consented to the operative procedure.' Dr. Louis E. Griffey, an otolaryngologist, swore that he examined the plaintiff on September 15, 1969, and found that her left vocal cord had a movement on abduction about one-half that of her normal right vocal cord; in his opinion the condition was permanent and resulted from the operation of July 6, 1966. Dr. Melvin H. Sher, a general surgeon, gave affidavit that in his opinion any operative procedure on the thyroid gland involves an inherent and well known risk of injury to the recurrent laryngeal nerve, and if such injury occurs, the result is paralysis, partial or total, of the vocal cord or cords.
The defendant filed his own affidavit and was deposed by the plaintiff. He swore that it was his 'common practice' to discuss risks or alternatives with his patients destined for surgery; he might well have done so in the plaintiff's case, but had no notation of it. 2 In his opinion the operation to remove the adenoma carried some risk of injury to the vocal cords by reason of possible damage to the recurrent laryngeal nerve, but it was not a high risk. In about 150 similar operations performed by him, there had been no such casualty. He saw no sound alternative here to surgical removal of the adenoma. He believed nothing he did in the course of the operation would account for the kind of injury complained of; it may have arisen because of the endotracheal anesthesia, or a postsurgical swelling due to local blood collection around the thyroid, or to some local tissue involvement. He said that in all things he exercised his best medical judgment and did not depart from accepted medical practice.
A judge of the Superior Court on January 23, 1975, denied the motion for summary judgment. When the case was called for trial on November 7, 1975, the plaintiff waived a jury (as did the defendant) and invited the entry of judgment for the defendant in order, as the plaintiff's counsel said, to achieve the finality needed for appeal, where he would be urging that it was error to deny the summary judgment motion. He added: '. . . I would like to represent to the Court that the plaintiff is not in the position in my opinion to present sufficient evidence in a trial on the merits of this case, live testimony, which would warrant a finding for the plaintiff.' From the judgment entered accordingly for the defendant, the plaintiff appealed to the Appeals Court, and we brought the appeal here on our own motion.
In view particularly of counsel's quoted remark, it is clear that if the denial of the summary judgment is now upheld as correct, the plaintiff's case is at an end; she is not entitled to a remand for trial. Some argument is made that in the light of that remark the question of the correctness of the denial should be held foreclosed to the plaintiff on this appeal, as it might well have been if, after the denial of summary judgment, the case had been fully tried below with judgment for the defendant; 3 but we shall assume arguendo that the question is open for decision here.
The second count of the declaration took as its major premise a doctrine of 'informed consent,' that--to speak in general terms--a surgeon is...
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