Under Massachusetts law, a competent adult has a legal right to forgo medical treatment if he or she so chooses. Of course, being able to exercise this right necessitates that a patient have knowledge of the options of treatment available to him or her, as well as the potential risks of each.
A physician’s failure to obtain informed consent can lead to liability for medical malpractice. To prevail on such a theory, a patient must be able to show that the doctor had a duty to disclose certain information, that the doctor did not do so, that there was a causal connection between the failure to disclose and the patient’s injury, and that actual damages resulted.
Facts of the Case
In the recent federal case of Bradley v. Sugarbaker, the plaintiff was a woman who had scarring on her lung due to a car accident that occurred in 2002. In late 2004, she underwent certain medical testing that indicated the possibility of cancer in her lung. The defendant was a thoracic surgeon who treated the woman. In late 2004, the plaintiff agreed to undergo a surgical biopsy to remove and test tissue samples from her lung. Before the procedure began, she signed an informed consent form indicating that she would undergo a bronchoscopy, a mediastinoscopy, and a minithoracotomy.
During the surgery, however, the defendant also performed a pulmonary wedge resection, which included a larger sample that contained, in part, healthy lung tissue. The plaintiff’s medical chart indicated that the procedure had become “more extensive,” due to scarring from prior trauma and surgery, and that she had suffered multiple air leaks because of the wedge resection. Over the next several months, the plaintiff suffered a collapsed lung, developed a cough and increased pain in her arm, and was diagnosed with both a fungus in her chest area and a bronchopleural fistula.
After enduring years of infections, complications, and pain, the plaintiff had to stop working. She also underwent several additional surgeries. She remains on both pain medication and an expensive antifungal medication to prevent further aspergillus infections.
Proceedings in Federal Court
The plaintiff filed suit against the defendant, asserting claims for medical negligence, failure to obtain informed consent, and battery. In particular, the plaintiff asserted that the doctor had performed major surgery on her when sample tissue could have been obtained by a less intrusive means, including a fine needle aspirated biopsy. The federal district court judge granted summary judgment as to the battery claim but denied such relief as to the informed consent claim. A jury trial resulted in a verdict for the doctor.
On appeal to the United States Court of Appeals for the First Circuit, the court affirmed the granting of summary judgment on the battery claim but agreed with the plaintiff that the trial court had erred in excluding certain expert testimony regarding a viable non-surgical alternative to the procedure performed by the defendant.
In so holding, the court noted that the Massachusetts courts distinguish between a lack of consent and a lack of informed consent. Only in a lack of consent situation is a battery claim viable. In the current case, the plaintiff’s case sounded in negligence, not battery.
To Speak to an Experienced Massachusetts Medical Malpractice Attorney
If you or a loved one is suffering because of the negligence of a doctor, nurse, or other health care provider, you likely have many questions concerning your legal rights, including the possibility of filing a lawsuit to seek compensation for your injuries. To schedule an appointment with a knowledgeable and experienced Cape Cod medical malpractice attorney, call the Law Offices of John C. Manoog, III, at (888) 262-6664 and ask for a free consultation. We handle cases in Hyannis, Plymouth, and elsewhere in Massachusetts.
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