Defining the limits of a physician's duty to disclose in Massachusetts.

• Author: Lee, Megan

1. INTRODUCTION

   Medical malpractice litigation is commonplace in society and the courts are compelled to delineate the legal parameters of physician disclosure beyond those facts directly related to the proposed medical procedure. (1) In the past several decades, informed consent has grown from requiring disclosure only of surgical risks to including novel risks such as physician-specific characteristics. (2) While some states require physicians to disclose their experience, qualifications, and risk statistics, other states find this extra disclosure far too expansive, and still other states, such as Massachusetts, have yet to make a judgment on this issue. (3)

   The Fourth Amendment recognizes that an individual has the right to be secure against "unreasonable searches and seizures." (4) The informed consent doctrine, officially ordained in 1957 by the California Court of Appeals, channels the basic principles of the Fourth Amendment into the intimacies of the medical field including an individual's right to preserve his or her own bodily integrity from intrusion. (5) This right is based on three principles. (6) First, the individual has a right to autonomy and self-determination, which empowers the patient to either accept or reject treatment regardless of whether the patient's decision appears unwise. (7) The second principle focuses on a patient's welfare and asserts that an individual should benefit from and not be harmed by the treatment. (8) Third, the informed consent doctrine recognizes a physician's duty to provide ample information so that a patient can properly decide whether to undergo treatment. (9) The United States Legislature has yet to define the phrase "ample information," thereby leaving such interpretation of that phrase and its elements to the courts. (10)

   This indefiniteness has left all courts, including those in Massachusetts, without a uniform basis in which to derive the legal parameters of the informed consent doctrine. (11) Part II of this note discusses the history of informed consent in Massachusetts. (12) Part III illuminates the current trends of disclosure in courts outside Massachusetts. (13) Lastly, Part IV argues that Massachusetts should not extend the doctrine of informed consent to include required disclosure of a physician's qualifications, experience, and risk statistics. (14)

2. HISTORY OF INFORMED CONSENT IN MASSACHUSETTS

   Whether the informed consent doctrine requires disclosure of a physician's personal characteristics and experience has generated much controversy in state courts throughout the country. (15) Before tackling this issue and its relevance in Massachusetts courts today, it is important to understand the evolution of a physician's duty of care up until the informed consent doctrine was introduced in Massachusetts and how that standard of care has changed with the informed consent doctrine. (16) Additionally, it is important to appreciate the disclosure limitations already set in place. (17)

   1. The Locality Rule

      In 1880, when the concept of informed consent was in its infancy, Massachusetts courts utilized the locality rule to deduce the standard of care that a surgeon must exhibit. (18) The locality rule requires a surgeon to possess the same ability and skill of other surgeons in similar localities. (19) Therefore, under this rule, a surgeon in a small community or town need not maintain the high degree of skill required of surgeons practicing in large cities. (20)

      As transportation and communication improved over the years, Massachusetts courts explored new ways of defining this standard and that exploration eventually lead to the notion of informed consent. (21) In 1968, the Massachusetts Supreme Judicial Court abandoned the locality rule when the Court, following the trend of other states, held that the allowance of skill disparity between physicians based on their region was an unsuitable standard. (22) Several states, including Massachusetts, adopted a new reasonable care standard and considered the locality of the physician as only one of several elements. (23)

   2. Battery Era

      Upon the adoption of the reasonable care standard, medical procedures became more standardized and a need for a more consistent disclosure level by all physicians was apparent. (24) Initially, the tort theory of battery governed medical claims. (25) A battery claim may arise when a physician performs an action during the surgery that is not known or consented to by the patient prior to the treatment. (26) Liability arises if the physician, during surgery, discovers a potentially life threatening medical malady and makes the decision to treat immediately and before receiving the patient's consent. (27) This patient-favored cause of action requires only that a patient demonstrate that he or she was not informed of the medical touching that ensued, not necessarily that injury occurred. (28) Recognizing that a patient should be informed about medical touching which will occur during the procedure triggered the idea of informed consent in the Commonwealth before its actual adoption and opened the question of what other aspects of the procedure the patient should be made aware. (29)

   3. Negligence Era

      A judicial sense that the medical field requires a more flexible and balanced standard of review emerged in the late twentieth century leading to today's basis of review: negligence. (30) If a patient authorizes a procedure based on incomplete information a negligence action may arise. (31) The result is that the patient's authorization is void and the physician is in violation of his or her fiducial duty of due care. (32)

      1. Standards of Proof for Negligence Claim

         A negligence claim provides a balance between the patient's Fourth Amendment rights and the physician's disclosure obligations to a patient because, unlike the battery claim, a plaintiff must show causation and physical injury. (33) A plaintiff establishes causation by demonstrating that the physician had a duty to disclose the particular information which was not divulged. (34) Then, the patient must show that the physician's breach of this duty caused his or her injury. (35)

         There are two sub-standards that States who have adopted the negligence standard have implemented. (36) One is the physician-based standard. (37) This standard is aligned with the locality rule and only requires disclosure that a reasonable physician in a "like-community" would give. (38) It also places emphasis on the physician's decisions since the underlying assumption is that a physician is the only party capable of making proper medical decisions. (39) While some states have adopted this standard, Massachusetts has chosen to adopt the patient-based standard, which is the second standard of negligence. (40) This patient-based standard focuses more on allowing a patient to make the decision and requires the physician to divulge: facts necessary for the patient to make an intelligent decision regarding the procedure and alternatives to the treatment, the risks of the proposed and alternative treatments, the results if the patient remains untreated, any consequential limitations to a patient's welfare, and any precautionary therapy the patient should seek. (41) Some courts hold that in order for the patient to make his or her own decision regarding the procedure, the physician should use a subjective standard when determining how much information needs to be disclosed, therefore basing disclosure on the particular patient's needs. (42) Other courts, such as today's Massachusetts courts, have chosen to take an objective approach and hold that sufficient disclosure should be based on a reasonable person's disclosure needs. (43) This principle also recognizes that physicians often consider non-medical factors that are personal to the patient when deciding the proper disclosure for a patient. (44)

         In 1982, a Massachusetts court recognized that the due care disclosure requirements of a negligence claim conformed to the informed consent doctrine. (45) In Harnish v. Children's Hosp. Medical Center, (46) the Supreme Judicial Court of Massachusetts held that "a physician's failure to divulge, in a reasonable manner, 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, constitutes professional misconduct." (47) This language enforces the first principle of the Fourth Amendment regarding a patient's right to self-determination as well as the premise behind the patient-based standard of a Negligence claim. (48)

      2. Limiting Notification Under Informed Consent

         Massachusetts recognizes that even under a patient-based standard, an individual can only realistically expect a finite amount of explanation from a physician. (49) There must be a balance between a patient's right to self-determination and a physician's burden of disclosure. (50) Currently, only information pertinent to the procedure that a reasonable person in similar circumstances would find important must be discussed with the patient. (51) Physicians also have a therapeutic privilege of non-disclosure in certain instances. (52) First, where disclosure would make the patient unnecessarily mentally unfit or cause extreme physiological harm to the patient making treatment dangerous, the physician is not required to make a disclosure. (53) Second, in emergency situations, where the physician is unable to obtain consent because the patient is unconscious or otherwise incapable of consenting, and the exigency of the situation does not permit further action to gain consent from the patient's family, the physician can make the presumption that a competent patient would consent to the life saving treatment. (54) Third, if the patient knows, or should know, of a universally recognized risk or the risk is extremely remote, the physician has no obligation to disclose such risks. (55)...