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Harnish v. Children’s Hospital Medical Center

    Brief Fact Summary. The Superior Court (Massachusetts) dismissed Harnish’s (Plaintiff) negligence claim after a medical malpractice tribunal concluded that Plaintiff’s evidence was inadequate. Plaintiff sought review.

    Synopsis of Rule of Law. A physician owes his patient the duty to disclose in a reasonable manner all significant medical information that the physician possesses or reasonably should possess, which is material to in order for the patient to make an intelligent decision whether or not to undergo a proposed procedure. Failure to do so constitutes professional misconduct.

    Facts. Plaintiff underwent surgery to remove a tumor in her neck. In the course of the procedure her hypoglossal nerve was severed, allegedly resulting in the critical loss of certain functions of her tongue. She brought suit, contending that the purpose of the procedure was cosmetic, and the resulting injury foreseeable. She maintained that if she had been apprised of the risk, she would not have consented to the procedure. Thus, she asserted, the physicians treating her did not properly inform her of the possible consequences and should have been held liable.

    Issue. To what degree is a physician required to disclose medical information so as to enable a patient to give informed consent to a course of treatment?
    * What information is material, and thus necessary for a patient to be sufficiently informed?

    Held. The court reversed the dismissal of the Plaintiff’s action against the Defendants. It held that the surgeon’s failure to divulge to a competent adult patient, sufficient information to enable the patient to make an informed judgment whether to give or withhold consent to a medical or surgical procedure, constituted professional misconduct.

    Discussion. Harnish illustrates another basis for medical malpractice liability: a physician’s failure to provide information to the patient. In these circumstances, liability flows from the defendant’s failure to obtain the plaintiff’s informed consent. Regarding such consent, the Harnish court explained: “[i]n the context of informed consent, materiality may be said to be the significance a reasonable person, in what the physician knows or should know is his patient’s position, would attach to the disclosed risk or risks in deciding whether to submit or not to submit to surgery or treatment.” The court further addresses the question of what facts are material and would factor into the consideration of what constitutes informed consent: “[a]ppropriate 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.”


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