424 Mass. 875 | Mass. | 1997
Lead Opinion
A Superior Court judge ruled that the evidence was not sufficient to raise a question for the jury on the plaintiff’s claim that each defendant physician had failed in his duty to disclose in a reasonable manner certain medical information that would have been material to an intelligent decision by the pregnant plaintiff whether to have labor induced or to wait for spontaneous labor. The Appeals Court
We agree with the trial judge. The evidence would not permit a finding that the risk to the child of serious infection was more than negligible. “The materiality of information about a potential injury is a function not only of the severity of the injury, but also of the likelihood that it will occur. Regardless of the severity of a potential injury, if the probability that the injury will occur is so small as to be practically nonexistent, then the possibility of that injury occurring cannot be considered a material factor in a rational assessment of whether to engage in the activity that exposes one to the potential injury.” Precourt v. Frederick, 395 Mass. 689, 694-695 (1985). See Harnish v. Children’s Hosp. Medical Ctr., 387 Mass. 152, 156 (1982).
The Appeals Court presented the facts underlying the claim as follows:
“In 1987, Donna Feeley (Feeley), Eric’s mother, became pregnant for the fourth time and experienced a normal course of pregnancy without any prenatal problems. On the morning of Monday, October 12, 1987, two days after her due date, Feeley’s water broke, and she was admitted to Beth Israel Hospital at noon. She was not in labor when she arrived at the hospital. Her treating physicians, the defendants Dr. Richard McNeer and Dr. Stephen Baer, without discussing the matter with Feeley, chose a course of treatment known as ‘expectant management.’ This approach is based upon the theory that once the membranes have ruptured, the pregnancy should proceed naturally to spontaneous labor without surgical intervention or medication to induce labor, provided that there is no indication of other reasons to intervene. Feeley went into labor on Wednesday evening and gave birth shortly thereafter.”
Feeley v. Baer, supra at 240. Eric died five days later of
All the experts acknowledged that once a woman’s membranes have ruptured, there is a risk of infection and that one must be alert for evidence of infection. There was evidence that the risk increases with time following the rupture. Such an infection can be simple or serious. The plaintiffs expert testified that Eric contracted the infection in his mother’s uterus and would not have done so if he had been delivered on Tuesday, the day after Feeley was admitted to the hospital.
The plaintiffs theory, which was accepted by the Appeals Court (.Feeley v. Baer, supra at 243), is that, because there was more than a negligible risk of infection, the doctors had to explain that risk and obtain Feeley’s informed consent to the course of treatment that they followed.
The deficiency in the plaintiffs proof is that there was no evidence that pursuing the “expectant management” procedure created more than a negligible risk of serious infection from streptococcus pneumonia or any other possible serious infection. The allowance of the defendants’ motions for
Judgment affirmed.
There is no doubt that, in the circumstances, Feeley could exercise judgment and give informed consent on behalf of her unborn child.
The fact that one alternative involved in this case was “letting nature take its course,” that is, no invasive treatment, does not affect the informed consent analysis. See Harnish v. Children’s Hosp. Medical Ctr., 387 Mass. 152, 156 (1982) (“Appropriate information may include . . . the likely result of no treatment . . .”). See also Wecker v. Amend, 22 Kan. App. 2d 498, 502 (1996) (“in situations where no treatment at all is a reasonable medically acceptable option, common sense dictates that such information constitutes a fact” necessary to form the basis of an intelligent consent by the patient to the proposed treatment).
The doctors did not raise the issue to which the concurring opinion is directed either in their applications for further appellate review or in their supplemental briefs to this court.
Most authorities “prefer to treat informed consent liability solely as an aspect of malpractice or negligence.” 1 F. Harper, F. James, & O. Gray, Torts § 3.10, at 3:45-3:46 (3d ed. 1996). One reason is “that the problem of informed consent is essentially one of professional responsibility, not intentional wrongdoing, and can be handled more coherently within the framework of negligence law than as an aspect of battery.” Id. at 3:46-3:47.
Concurrence Opinion
(concurring, with whom Lynch, J., joins). I agree that “there was no evidence that pursuing the ‘expectant management’ procedure created more than a negligible risk of serious infection” and that therefore the defendants were entitled to directed verdicts. Ante at 877. I write separately, however, to make clear that I do not subscribe to the notion, apparently accepted by this court and by the Appeals Court (see 41 Mass. App. Ct. 239, 242 [1996]), that the informed consent doctrine articulated in Hornish v. Children’s Hosp. Medical Ctr., 387 Mass. 152 (1982), and Precourt v. Frederick, 395 Mass. 689 (1985), applies to a situation in which the physician has not subjected the patient to bodily invasion, surgically or otherwise.
In Harnish, supra at 153, “[t]he plaintiff underwent an operation to remove a tumor in her neck. During the procedure, her hypoglossal nerve was severed, allegedly resulting in a permanent and almost total loss of tongue function.” In that context, the court stated, “ ‘There is implicit recognition in the law of the Commonwealth, as elsewhere, that a person has a strong interest in being free from nonconsensual invasion of his bodily integrity. ... In short, the law recognizes the individual interest in preserving “the inviolability of his person.” Pratt v. Davis, 118 Ill. App. 161, 166 (1905), affd, 224 Ill. 300 (1906). One means by which the law has developed in a manner consistent with the protection of this interest is through the development of the doctrine of informed consent.’ Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 738-739 (1977).” Harnish, supra at 154. It is clear from the material quoted from Harnish, as well as from the entire Harnish opinion, that the court was not suggesting that a patient has a right to require her doctor to operate on her or medicate her because she has not given the doctor her informed consent to be left alone.
In note 3, ante at 877, the court quotes from Harnish, supra at 156, as follows: “Appropriate information may include . . . the likely result of no treatment . . . .” The Harnish court’s full statement, which was made in the context of a case in which surgery had been performed, was this: “Appropriate information may include the nature of the patient’s condition, the nature and probability of risks involved, the benefits to be reasonably expected, the inability of the physician to predict results, if that is the situation, the irreversibility of the procedure, if that be the case, the likely result of no treatment, and the available alternatives, including their risks and benefits” (emphasis added). Once again it is clear that the court’s focus was solely on the physician’s duty to obtain the patient’s informed consent to validate invasion of the patient’s bodily integrity.
In Wecker v. Amend, 22 Kan. App. 2d 498 (1996), also cited by the court, ante at 877 n.3, the plaintiff was advised to undergo, and did undergo, an invasive procedure, laser surgery, which resulted in extensive postoperative bleeding. There, the plaintiff’s doctor failed to advise her of the likely
“[I]n situations where no treatment at all is a reasonable medically acceptable option, common sense dictates that such information constitutes a fact ‘which [is] necessary to form the basis of an intelligent consent by the patient to the proposed treatment.’ ... In other words, how can a patient give an informed consent to treatment [i.e., laser surgery] for a condition if the patient is not informed that the condition might resolve itself without any treatment at all?”
Id. at 502, quoting Natanson v. Kline, 186 Kan. 393, 407 (1960). Nowhere in its opinion did that court suggest that had the patient been advised to forego laser surgery, and did so, liability could attach under the doctrine of informed consent.
The doctrine of informed consent has its foundations in the law of battery. 1 F. Harper, F. James, & O. Gray, Torts § 3.10, at 3:45-3:46 (3d ed. 1996). The court, ante at n.4, states, “Most authorities ‘prefer to treat informed consent liability solely as an aspect of malpractice or negligence.’ 1 F. Harper, F. James, & O. Gray, Torts § 3:10, at 3:45-3:46 (3d ed. 1996). One reason is ‘that the problem of informed consent is essentially one of professional responsibility, not intentional wrongdoing, and can be handled more coherently within the framework of negligence law than as an aspect of battery.’ Id. at 3:46-3:47.” That passage continues:
“Also, the statute of limitations for negligence is often more favorable to plaintiffs than that for battery. There is also occasional concern that some physicians’ malpractice insurance policies may not cover battery because of an exclusion of liability for criminal acts. At times, however, an action in battery may be essential for a plaintiff who cannot otherwise recover for failure to obtain informed consent. In such cases courts sometimes find that the particular facts are more nearly analogous to touching without consent, which all agree is battery, than to a consented touching for which consent was induced by inadequate information” (emphasis added).
Id. at § 3.10, at 3:47. It is clear that the quoted material
The court states that the doctors did not raise this issue “either in their applications for further appellate review or in their supplemental briefs to this court.” Ante at 878 n.4. However, the parties argued this issue at length in their briefs to the Appeals Court, which briefs were later filed in the Supreme Judicial Court along with supplemental briefs. In any event, my objective in writing this concurring opinion is not to affect the result of this case but instead is to affect the developing law in what I consider to be a sound way.