Harnish v. Children's Hospital Medical Center

Supreme Judicial Court of Massachusetts · Torts

TortsMedical malpracticeInformed consentinformed consentmedical malpracticeduty to disclosematerial riskreasonable patient

Facts

The plaintiff underwent surgery to remove a neck tumor, and during the operation her hypoglossal nerve was severed, allegedly causing permanent and almost total loss of tongue function. Her complaint alleged that the surgery was performed for cosmetic reasons, that loss of tongue function was a material and foreseeable risk, and that she would not have consented had she been told of that risk. The offer of proof stated that standard medical practice required disclosure of the risk of nerve severance and its consequences, that Dr. Mulliken was the surgeon in charge, and that Dr. Holmes discussed risks with the plaintiff but did not disclose the risk of loss of tongue function. Dr. Gilman was identified only as an assistant, and the offer of proof did not show facts establishing hospital control over the surgeons' professional conduct.

Issue

Whether a physician's failure to disclose material information necessary for an informed decision constitutes malpractice within G. L. c. 231, § 60B, and whether the plaintiff's offer of proof was sufficient to raise such a claim against the defendant physicians and hospital. Also, what causation showing is required in an informed-consent action.

Rule

A physician has a duty to disclose in a reasonable manner all significant medical information the physician possesses or reasonably should possess that is material to an intelligent decision by a competent adult patient whether to undergo a proposed procedure. The physician's knowledge is measured by what the average qualified physician, or average qualified specialist, would possess, but materiality is judged by what a reasonable person in the patient's position would attach significance to in deciding whether to undergo treatment. In an informed-consent claim, the undisclosed risk must materialize, and at trial the plaintiff must show that, had proper disclosure been made, neither the plaintiff nor a reasonable person in similar circumstances would have undergone the procedure.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Portland, Oregon, Dr. Nina Sethi recommends an elective wrist procedure to Mara Lopez. A small but significant risk of permanent loss of grip strength is well known among hand specialists, but Dr. Sethi does not mention it because most surgeons in her practice group do not usually discuss that risk; the risk occurs and Mara says she would have refused the procedure had she known.

Which is the strongest argument that Mara has a viable informed-consent claim against Dr. Sethi?

Explanation. The majority adopted a materiality-based disclosure rule and rejected a professional-custom disclosure standard. A physician must disclose in a reasonable manner significant medical information the physician possesses or reasonably should possess that is material to an intelligent decision by the patient. The claim does not depend on negligent performance, and materiality is not limited to risks that are more likely than not. (Derived from Harnish v. Children's Hospital Medical Center (n.d.).)