809 F.3d 8
1st Cir.2015Background
- Mrs. Bradley underwent imaging in late 2004 showing an apical lung mass; a PET scan suggested benign but malignancy could not be ruled out. An FNA had been scheduled earlier but was later cancelled.
- On December 14, 2004, after review of scans, Dr. Sugarbaker recommended a surgical biopsy; Mrs. Bradley signed a consent form for bronchoscopy, mediastinoscopy, and minithoracotomy.
- During the December 17, 2004 operation, six samples were taken; the sixth was a pulmonary wedge resection (an 8 x 3.5 x 3.5 cm specimen) that removed healthy lung tissue and led to complications (air leaks, pneumothorax, aspergillus infection, subsequent surgeries and long-term morbidity).
- The Bradleys sued for medical negligence (informed consent) and battery, alleging surgery was more extensive than she consented to and that less-invasive options (FNA) were not adequately discussed or offered.
- The district court granted summary judgment on the battery claim (treating scope/disclosure disputes as negligence, not battery), denied summary judgment on informed consent, excluded portions of plaintiffs’ expert Dr. Putnam’s opinions about FNA availability/adequacy, and a jury later found inadequate disclosure but no causation.
- On appeal, the First Circuit affirmed dismissal of the battery claim but vacated and remanded the evidentiary exclusions as to Dr. Putnam (Opinions 2 and 3), concluding the district court abused its discretion in excluding relevant expert evidence about alternatives and dissuasion; Opinion 1 (failure to perform FNA) was left for the district court to consider as to negligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment on medical battery was proper | Bradley: wedge resection exceeded the scope of consent (she consented only to diagnostic "small" samples), so removal of a large lung piece is battery | Sugarbaker: patient consented to surgery to diagnose the mass; disputes about extent/risks are informed-consent / negligence issues, not battery | Affirmed: battery claim dismissed — scope/disclosure disputes are properly treated as negligence/informed-consent rather than intentional battery where the surgery served the diagnostic purpose consented to |
| Admissibility of expert testimony that FNA was a viable alternative and should have been discussed (Opinion 3) | Putnam: testimony on standard of care re alternatives and how doctors should present choices would assist jury on what must be disclosed | Sugarbaker: FNA was not a practical alternative here; materiality is for jury; testimony would usurp jury or lack factual foundation | Vacated & remanded: district court abused discretion excluding Opinion 3 — expert may testify about disclosure practice and whether FNA was a viable alternative given conflicting trial evidence |
| Admissibility of expert testimony that plaintiff was dissuaded from FNA (Opinion 2) | Bradley: PA Hung told her FNA was infeasible, causing cancellation — statements attributable to supervising surgeon; testimony relevant to disclosure/dissuasion | Sugarbaker: no evidence of dissuasion; at most nonperformance/nondiscussion | Vacated & remanded: exclusion of Opinion 2 was an abuse of discretion — record contained evidence of dissuasion and attribution to surgeon could be for jury to decide |
| Admissibility of expert testimony that surgeon should have performed FNA himself (Opinion 1) | Bradley: non-performance of less-invasive procedure bears on standard of care (negligence) even if surgeon wouldn’t personally perform it | Sugarbaker: informed-consent inquiry concerns disclosure, not who performs procedure; nonperformance has no legal significance for consent claim | Affirmed in part / left open: district court correctly excluded Opinion 1 as irrelevant to informed consent; relevance to independent negligence claim left to district court to determine on remand |
Key Cases Cited
- Harnish v. Children's Hosp. Med. Ctr., 439 N.E.2d 240 (Mass. 1982) (establishes physician duty to disclose material risks and alternatives for informed consent)
- Halley v. Birbiglia, 458 N.E.2d 710 (Mass. 1983) (sets elements for causation and duty in informed consent claims)
- Feeley v. Baer, 679 N.E.2d 180 (Mass. 1997) (informed-consent disputes are generally malpractice, not battery)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (trial judge's gatekeeping role on admissibility of expert testimony)
- Pagés-Ramírez v. Ramírez-González, 605 F.3d 109 (1st Cir. 2010) (expert testimony generally required to establish medical standard of care and causation)
- Milward v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11 (1st Cir. 2011) (appellate standards for review of district court's expert-admissibility determinations)