Harnish v. Children’s Hospital Medical Center (1982)
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Harnish v. Children’s Hospital Medical Center (1982)
The plaintiff of the case was a woman, represented by Joseph G. Abromovitz, charged the surgeon and the Children’s Hospital Medical Centre for a medical procedure gone wrong. Joseph L. Dohetry, Jr represented the defendant. The plaintiff underwent surgery to remove a neck tumor. Her hypoglossal nerve was affected. The hypoglossal nerve is responsible for the motion of the tongue. It innervates various tongue muscles, making it possible for someone to move the tongue about in the mouth. The plaintiff had not been fully informed of the risks regarding her surgery by the doctor. She felt she would have been informed of all possible risks; she would never have taken the surgery.
The plaintiff charged the surgeon and the children’s hospital with misinterpretation and failure to provide information regarding the surgical procedure. The doctor was disputed how much information he should relay to his patients and chose not to reveal much. Operation without any risks is almost impossible as finding a needle in the haystack. The patients may be scared of the risks if they are aware of them and not consent to the surgery. Therefore, the doctor’s work is to provide the best results on the patient while being aware of the risks and eliminating them within the capable means. However, the doctor should point to providing the obvious risks to the patient about a medical procedure, and the patient should be able to make an informed decision from the provided information.
The Superior Court Department of Massachusetts had previously dismissed the case because the proof that was present was not enough. However, the plaintiff did not feel as if justice was done. The plaintiff wanted the doctor to be held liable for her tongue damage as a remedy. The doctor was aware of the risks that the procedure posed and did not inform her so that she could make an informed decision on whether to accept or decline. She would have owned up to the mistake had she consented to the surgery while being aware of the risk it posed. However, the surgeon did the procedure without informing her of what would have happened to her in the course of the procedure that disabled her tongue.
Furthermore, she was having a cosmetic procedure, and the fact that it deterred a part of her body was a huge toll on her. In this case, the plaintiff was appealing for the removal of the dismissal of her previous case by the judge. She wanted the judge to take into account her proof and reconsider the initial dismissal of the case.
The plaintiff offered proof that she felt she met all the requirements that would satisfy her allegations. She argued out the proof she gave out met the requirements as in the Kapp v. Ballantine, 380 Mass. 186, 192 (1980) case. The offer of proof was sufficient in that case, and that made the case to be held in favor of the plaintiff. The plaintiff in this Harnish v. Children’s Hospital Medical Centre case had offered the same proof; thus, it was deemed unfair, in the plaintiff’s opinion, not to hold the case in her favor. Nonetheless, her offer of proof was similar to that of Little v. Rosenthal, 376 Mass. 573, 578 (1978) case.
One of the legal cases here is the offer of proof. General Law c. 231, Section 60B, calls for an order of proof rather than just pleading it invokes the provision of adequate facts to support the allegations made. During a trial, the offer of proof explains to the judge the relevance of certain items of physical evidence that would be relevant to the case. This arises when the other side rules out certain evidence as irrelevant and inadmissible to the case. In this case, the plaintiff’s order of proof had been dismissed due to failure to post a bond in accordance with General Law c. 231 Section 60B. The plaintiff’s claims are fully based on the lack of informed consent, where she was not made aware of the foreseeable risk of consenting to the surgery. She claims that she was misrepresented in trusting the surgeons’ ability to operate successfully, according to Commonwealth v. Horton, 376 Mass. 380, 388 (1978), cert. Denied, 440 U.S. 923 (1979).
The defendants argue that the operation was purely for cosmetic reasons and that losing functionality on the tongue was an imminent risk of the whole operation. If the plaintiff had been aware of this, then they might not have consented to the operation. There was indeed no claim made that the operation was performed negligently. Moreover, the plaintiff’s offer of proof failed to show the surgeons’ affirmation with the hospital as some of a hospital’s staff may be outsourced from other private firms. Suppose an assumption of staff affirmation was present. In that case, there is nothing really to show that a medical center has control over a surgeon’s professional conduct, as stated in Kapp v. Ballantine, supra at 762. This means that the hospital does not fully control some of the decisions made by a surgeon. The defendants also argue in relation to a medical malpractice tribunal, as indicated in the General Law c. 231, Section 60B that the plaintiff’s offer of proof was not sufficient to raise any question.
The judge must decide three legal issues: The rule of liability, Causation, and The Offer of proof. On the issue of Causation, a risk or consequence that was not made known must materialize to mean that it must be proven. Otherwise, even in the event of omission of the risk, which is still unpardonable, legally projects no consequence on the offender whatsoever, as stated in Canterbury v. Spence, supra at 790. Schroeder v. Lawrence, 372 Mass. 1,5 (1977) this is to mean that a person is legally not at fault for failing to reveal a risk if the unrevealed risk cannot materialize. If the alleged undisclosed risk materialized, then it is upon the tribunal’s inquiry to look into it and make a decision based upon it. The plaintiff is expected to provide clear information that signifies that anyone in their position would have still consented to the operation given the circumstances stated in Wilkinson v. Vesey, supra at 628-629). The judge must decide whether the information regarding the surgery that was not disclosed is materialized and proven adequately.
In this case, the plaintiff alleges that the surgeon had discussed with her the potential consequences, possible risks, and foreseeable side effects of the surgery and promised to successfully perform the surgery. The information given to the plaintiff lacked the portion of the possible risk of loss of tongue functionality and the consequences. This would have made the plaintiff reconsider the operation’s consent in the face of the loss of such an important bodily function. Rather the plaintiff was not informed of this; therefore was unconsciously putting herself at risk. Any proof that is not relating to medical questions is not subject to the tribunal’s inquiry in accordance with (Lubanes v. George, supra at 325. Salem Orthopedic Surgeons, Inc. v. Quinn, 377 Mass. 514, 521, (1979).
The judge is also expected to decide on the issue of the offer of proof. The plaintiff’s offer of proof, which was initially dismissed based on failure to post bond, was reexamined and found to be true in McMahon v. Glixman, 379 Mass. 60, 65-66 (1979), Little v. Rosenthal, supra at 578. The offer of proof comprised her affidavit, an opinion letter from two oral surgeons, and various hospital reports. The plaintiff underwent an operation where a subtotal excision of a cystic hygroma was performed at the defendant’s hospital. As a result of this disorder, the plaintiff was forced to undergo several surgeries over the course of several years. The procedure was done solely for cosmetic purposes despite the fact that it was potentially life threatening. The procedure resulted in the severance of the hypoglossal nerve, which is responsible for tongue function. The risk of severance of the hypoglossal nerve was seen as a possibility regardless of the proper performance of the surgery. Standard and acceptable medical practice required the defendant to make the plaintiff aware of the risk of loss of tongue function resulting from the severance of the hypoglossal nerve and the resulting consequences. Instead, the plaintiff was unaware of this, therefore, did not have the opportunity to decline to go through with the operation. The judge must decide whether the offer of proof the plaintiff has provided is sufficient to raise a question appropriate for tribunal inquiry.
The judge is also expected to decide on the issue of the rule of liability. The physician performing any unconsented procedure constitutes professional misconduct within General Law c. 23, Section 60B. Subject to the statute. Lebanese v. George, 386 Mass. 320,325 (1982). Development of informed consent doctrine where the patient determines whether to partake in the procedure based on their interests Cobbs v. Grant, supra at 242. Any sound adult is rightfully allowed to decline any treatment if they see that the consequences are too dire to survive through as in Wilkinson v. Vesey, 110 R.I.606, 624(1972). In this case, it is not a matter of performing the unconsented procedure. Rather the issue at hand is the lack of the doctrine of informed consent. Despite the defendant making the plaintiff aware of other possible risks, consequences, and side effects, the risk of severance of the hypoglossal nerve was excluded. Here the judge must decide on who is liable for the complication that resulted from the surgical procedure.
The plaintiff well aware of the right to forego treatment that may be damaging to them as well as partial information relating to the procedure made a decision that impacted them. The physician is held accountable for failing to provide a competent adult patient with sufficient information to make an informed decision whether to consent to the procedure. This constitutes professional misconduct and comes with the ambit of General Law c. 231, section 60B. The defendant promised to complete the operation well aware that he had not revealed some important information to the plaintiff.
The judge decided to accept the offer of proof of the plaintiff that had initially been dismissed. It was clear that the plaintiff had not been made aware of the defendant’s possible loss of tongue functionality. According to the offer of proof provided, the defendant was noted to be the admitting physician and surgeon in charge of the surgical operation performed. The offer of proof also states that before the surgery, the defendant had discussed the foreseeable risks and consequences of the surgery with the plaintiff but never informed her of the risks and ensuing consequences of loss of tongue functionality. This offer of proof she provided was sufficient to raise the appropriate question for the tribunal inquiry with respect to the defendant. Normally, a patient cannot make an informed decision whether to proceed with a surgical procedure in the absence of any necessary information from their physician that may impart their decision according to Canterbury v. Spence, supra at 780 782. The physician is expected to share information that is paramount to the patient’s decision, Canterbury v. Spence, supra at 787.
This means that any unnecessary information that is not in conjunction with the patient’s decision to proceed with the surgical procedure should be excluded. Medical matters are often considered quite complex, and only people trained and specialized in that particular field can comprehend. The conveyance of medical terms by trained medical personnel to an untrained patient may be quite difficult. The physician should provide information in a manner that laypersons, untrained patients, can make without requiring input from experts such as Canterbury v. Spence, supra at 784-785. Wilkinson v. Vesey, supra at 625.
It is important to note that there may be situations where the patient’s right to know calls for a privilege of non-disclosure as in Cobbs v. Grant, supra at 245-246. Such cases can be, for instance, where some of the information would complicate a patient’s medical condition, making them choose not to make that decision. It may also cause the patient to be unfit for the treatment being offered. For the case at hand, this was not the case as the operation was solely for cosmetic reasons; therefore, in no way would have the disclosure of the resulting risk caused the plaintiff to be unfit for treatment or complicate her medical condition.
The judge decided to reverse the judgment on the defendant. Initially, the plaintiff’s offer of proof was not sufficient to raise an appropriate question for the tribunal inquiry. Any physician is expected to disclose all important information that they have that is expected to assist the patient in making an intelligent decision. Failure to do so constitutes professional misconduct within the ambit of General Law c. 231, Section 60B [153-157] . Information, the physician, is expected to make known to the patients include the patient’s condition, the nature, and possibility of risks that may be involved, the benefits to be expected of going through with the procedure, the physician’s inability to accurately to project the expected results, the irreversibility of the procedure in such a case the absence of any treatment or cure once the procedure is done. The physician should also make known whether there are alternatives to the procedure and the risks and benefits of the said alternatives.
This case is connected to the cases discussed in that they zero in on the negligence of different parties, defendants, that cost their consumers, plaintiffs. This case entails a physician who failed to inform their patient of an irreversible risk to their health. In doing so, the patient ended up being hugely affected as she lost her tongue functionality. This is a clear indication of the negligence on the physician’s part, making them fully liable for the resulting implications.
This can also be related to the MacPherson v.Buick Motor (1912) case where the Buick company was held accountable for Macpherson’s accident. It was discovered that the car’s spokes were manufactured from inferior wood. This shows that the manufacturer failed to carefully inspect the output products, which caused MacPherson to recover the damages due to a lack of reasonable inspection. This narrows down to the company’s negligence that cost them. This case is connected to the Harnish v Children’s Hospital Medical center. The only way for the defendants to avoid liability of the plaintiff’s injuries and complications is by making reasonable decisions and inspections in which the defendants failed to do so. Had they done so than with other factors, the plaintiff’s injuries would not have been foreseeable by defendants.
It is also relevant to note that some of the warnings and information given to the affected plaintiffs in the cases discussed were downplayed, which ultimately cost them dearly. Taking the case at hand, we see that the plaintiff was not aware of the surgical procedure that would result in her losing her tongue functionality. This is clearly because her physician had failed to warn her of this despite warning her of other risks and consequences of the procedure. Taking into account the MacDonald v Ortho Pharmaceutical (1984) case where the plaintiff, MacDonald suffered a stroke that left her permanently disabled due to consuming oral contraceptives from the Ortho Pharmaceutical that had been prescribed to her by her gynecologist. She said that she had been well aware of the warnings present on the pill dispenser and the information booklet given by her gynecologist. However, there was no warning of the possibility of a stroke; rather, the warning expected to signify a possible stroke was ‘abnormal blood clotting.’
In medical terms, stroke can be referred to as blood clotting in the brain. This is only known to the physician and pharmacist as they are trained personnel in that field. Due to such negligence and downplaying of very valuable information that was not made known to the plaintiff caused her to suffer for it. This case, in relation to the Harnish v Children’s Hospital case, shows how, when very critical information is not disclosed to the patient, they end up making partially informed decisions. Moreover, both plaintiffs in the cases mention that had they been aware of the risks at hand, they would have declined from consenting to the medical procedure.
The Harnish v Children’s Hospital (1982) case was overruled. The lower courts had dismissed the plaintiff’s offer of proof claiming it to be insufficient to generate an appropriate question for tribunal inquiry. The plaintiff appealed for the judgment of dismissal of her offer of proof as it conformed to the requirements as defined in Kapp v. Ballantine, 380 Mass 186, 192 (1980), and Little v. Rosenthal, 376 Mass. 573, 578, (1978). The supreme court judge reversed the defendant’s initial judgment, where the defendant was now held accountable for negligence and misrepresentation by failing to inform the plaintiff before the surgery of the risk of loss of tongue functionality.
The relevant case in line with this case is the MacDonald v Ortho Pharmaceuticals (1984) case, where the Ortho Pharmaceuticals failed to include a crucial piece of information as part of warnings on their product. The jury had initially stated that it was not Ortho Pharmaceutical’s duty to inform the plaintiff of the risks of contraceptive pills. The plaintiff appealed, stating that it was also Ortho Pharmaceutical’s obligation to warn her but had failed to accurately warn her of the stroke. This is a similar ruling to the Harnish v Children’s Hospital (1982) case where the plaintiff appealed, saying claiming that in as much as it was the physician at fault, so was the hospital at large. Despite the fact that Ortho Pharmaceuticals had adequately informed the plaintiff’s gynecologist of the risks of the contraceptive pills but not of the stroke similarly the physician in the Harnish v. Children’s Hospital case had informed the plaintiff of the risks and consequences of the surgical procedure before proceeding to perform the surgery but had failed to mention the probability of loss of tongue functionality. Both parties were found at fault, and this is what generated to the appeal from plaintiffs of both cases.
I have both learned and enjoyed from the Harnish v Children’s Hospital (1982) case. I have learned that the negligence of physicians in the slightest way possible can really result in a lot of damages. Negligence of even a small magnitude in the medical field can be disastrous as seen from the plaintiff, who had consented to the operation hoping to cosmetically improve herself. She had the promise of her physician that the surgical procedure would be successful. She thought she had made an informed decision based on the information the doctor gave her. Ultimately, as a result of her physician failing to disclose the huge risk, she ended up paying for the price of professional misconduct in line with medical malpractice.
I have also learned from various cases connected to this case that a lot of damages and injuries could have been minimized if proper inspection of products was done. It is not realistic to expect consumers to inspect the products they are purchasing as they just buy them to consume fully knowing they are safe and have been carefully inspected; therefore a lot of damages can be prevented if reasonable inspection and proper information was put out. In the field of medicine, the physicians should aim to relay the required information in the most basic way so that the patients may make informed decisions with the necessary information given to them.
I enjoyed getting to through the whole process of learning about the case and how different rulings were made with regards to the case. I also enjoyed trying to come up with my own view of the case and getting to word it out from my understanding. Being able to understand the reasoning behind each decision made by the judge and trying to visualize from my point of view was a good experience as well as learning that the guilty parties were held accountable for their actions of negligence and that justice was rightfully served.
References
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Klingenstein, R. James. “Informed consent in medicine: one physician’s perspective.” International Journal of Risk & Safety in Medicine 3.5-6 (1992): 263-270.
Roll, Harry. “Tort Law-A Modifies Informed Consent Standard for Massachusetts.” Suffolk UL Rev. 17 (1983): 243.
Geller, Jeffrey, et al. “The efficacy of involuntary outpatient treatment in Massachusetts.” Administration and Policy in Mental Health and Mental Health Services Research 25.3 (1998): 271-285.
Leblanc, Theodore R. “Informed consent—Duty and causation: A survey of current developments.” The Forum (Section of Insurance, Negligence and Compensation Law, American Bar Association). Section of Tort and Insurance Practice, American Bar Association, 1983.