41 Mass. App. Ct. 239 | Mass. App. Ct. | 1996
Eric Feeley died on October 19, 1987, five days
In reviewing the trial court’s direction of the verdicts on the issue of informed consent, we must determine whether “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff” (citation omitted). Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). Accordingly, we look at the evidence, construed most favorably to the plaintiff. Poirier v. Plymouth, 374 Mass. 206, 212 (1978).
1. The evidence at trial. 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,
The experts for the plaintiff and for the defendants both acknowledged at trial that once a woman’s membranes have ruptured, there is a need to be alert for evidence of infection.
Dr. David Hollander, the plaintiff’s expert, testified that labor should have been induced when Feeley first came into the hospital, that Eric contracted his infection in útero, and that had he been delivered prior to Tuesday evening, he would not have contracted the infection.
In explaining the risks of the two possible courses of treatment — inducing labor or waiting for the mother to give birth naturally — Dr. Hollander indicated that, when dealing with a patient who has had three prior deliveries of relatively short labor, the risk of infection by not inducing labor “greatly outweighs” the possibility of a failed induction (that is, a long labor and ultimately a Caesarean section). “So clearly, the risk to the mother is very small with induction of labor, and clearly the risk of waiting is one of infection.” For someone who has had prior fairly easy vaginal deliveries the “risk of infection either for the mother and certainly for baby far, far outweighs the risk of doing nothing and just letting the woman sit there. And it’s a risk you need to discuss.” On cross-examination, in discussing infection of amniotic fluid (chorioamnionitis), Dr. Hollander agreed with a text which stated that chorioamnionitis may leave the fetus uninfected in up to ninety-five percent of cases.
The defendants’ expert, Dr. Jeffrey Riley, although disagreeing that the risk of infection was greater with the “expectant management” approach, acknowledged that a text dated 1987, authored in part by the chief of obstetrics at the Beth Israel Hospital, stated, “If conditions for induction are optimal at or near term, the hazard of infection from delay probably outweighs that of induction.” Dr. Riley recognized that a publication of the American College of Obstetricians and Gynecologists noted: “For patients who are 34 weeks gestation or more with rupture of the membranes, the pregnancy should be terminated within 24 hours. If delivery is not accomplished within 24 hours, serious consideration should be given to delivery by Caesarean section.” Dr. Riley also agreed that a “patient who is in the hospital with a condition that presents increased risks is entitled to know about her condition and the risks associated with it.”
The trial judge, relying on Precourt v. Frederick, 395 Mass. 689 (1985), was first of opinion that “the plaintiff has failed to establish the likelihood that the risks associated with a ruptured fetal membrane would pose a danger of infection by way of the streptococcus pneumonia virus.” Eric had died of this rare virus. After plaintiff’s counsel pointed out that his theory was not that the doctors should have warned against a specific type of organism, or the manner of transmission or the type of death, but rather should have warned against infection, see McMahon v. Finlayson, 36 Mass. App. Ct. 371, 375 (1994), the judge responded that neither the risk of infection nor the specific risk of infection by streptococcus pneumonia bacterium had been established. On this basis, he removed the issue of informed consent from the jury.
2. Informed consent. In Harnish v. Children’s Hosp. Med. Center, 387 Mass. 152, 154 (1982), the Supreme Judicial Court, quoting from Wilkinson v. Vesey, 110 R.I. 606, 624 (1972), recognized the right of every competent adult “to forego treatment, or even cure, if it entails what for him are intolerable consequences or risks however unwise his sense of values may be in the eyes of the medical profession.” That right “requires knowledge of the available options and the risks attendant on each.” Ibid. Thus, a physician must 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.” Id. at 155. The duty to disclose also exists, contrary to defendant Baer’s contention, where there is no invasive procedure or medication, but, as here, a deliberate decision on the part of the doctors to forego an accepted procedure.
“The information a physician reasonably should possess is that information possessed by the average qualified physician or, in the case of a specialty, by the average qualified physician practicing that specialty.” Ibid. While what the physician should know involves professional expertise, what he or
In Precourt v. Frederick, 395 Mass, at 694, the court amplified its discussion of materiality and explained that materiality 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 Precourt, a majority of the court held that despite evidence that the plaintiff’s dose of Pred-nisone was “high,” that the course of treatment was “long,” and that the probability of aseptic necrosis increases with the exposure to Prednisone, the evidence was insufficient to permit the inference that the treating physician reasonably should have recognized that the undisclosed risk was material to the patient’s decision. Id. at 696. “[Tjhere was no evidence of the likelihood that a person would develop aseptic necrosis after taking Prednisone or that [the doctor] knew or should have known that the likelihood was other than negligible” (emphasis supplied). Ibid. The court pointed out that “high” is a relative word, and to say the risk was high “could mean one in ten, but it could just as well mean one in a million.” Ibid.
Although Dr. Hollander characterized the risk of infection as “big,” a term similar to “high,” the likelihood of risk was amply supported by the evidence. Every doctor involved knew there was a risk of infection in following the course that was taken; indeed, from the moment of admission Feeley was monitored for infection, and both Dr. Hollander’s testimony and the medical treatises shown to Dr. Riley at trial recognized that risk. Based on the evidence, a jury could find that the average qualified obstetrician would know that more than a short wait, for conditions such as Feeley’s, posed more than a negligible risk of infection. That the defendants
It takes no discussion to recognize that an expectant mother would consider the risk of infection to her unborn child material in deciding which of the courses to follow.
2. Negligence in failing to disclose. Feeley also argues that the judge erred in not allowing her, apart from the informed consent doctrine, to claim and present evidence that failure to disclose the material risks of the expectant management approach was simple negligence and did not comply with the standard of the average practitioner. See Brune v. Belinkoff, 354 Mass. 102 (1968). Harnish forecloses that argument: “Many jurisdictions have adopted the rule that a physician must disclose to his patient only such information as is customarily disclosed by physicians in similar circumstances. We think that the better rule is the one we adopt today. The customary practice standard overlooks the purpose of requiring disclosure, which is protection of the patient’s right to decide for himself.” 387 Mass, at 156-157. Compare Canterbury v. Spence, 464 F.2d 772, 783 (D.C. Cir.), cert, denied, 409 U.S. 1064 (1972).
So ordered.
Dr. McNeer was responsible for her treatment from the time of her admission until 8 a.m. on Tuesday when the defendant Dr. Baer assumed responsibility for her care.
In Harnish, at 156, the court specifically noted that appropriate information may include “the likely result of no treatment, and the available alternatives, including their risks and benefits.”
Moreover, a leading opinion has posited: “Whenever nondisclosure of particular risk information is open to debate by reasonable-minded [persons], the issue is for the finder of the facts.” Canterbury v. Spence, 464 F.2d 112, 788 (D.C. Cir.), cert, denied, 409 U.S. 1064 (1972).
Although there was evidence from the vital signs of both the mother and the baby that the risks of the expectant management approach increased during Dr. Baer’s time of responsibility, the evidence recounted in the text was sufficient to require that Dr. McNeer, too, should have informed Feeley of the risks and told her of alternatives.