Harnish v. Child.'s Hosp. Med. Ctr., 439 N.E.2d 240 (Mass. 1982). · Go Syfert
Harnish v. Child.'s Hosp. Med. Ctr., 439 N.E.2d 240 (Mass. 1982). Cases Citing This Book View Copy Cite
351 citation events (131 in the last 25 years) across 25 distinct courts.
Strongest positive: Kerlinsky v. Sandoz, Inc. (mad, 2011-05-09)
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Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Kerlinsky v. Sandoz, Inc. (2×) also: Cited as authority (quoted)
D. Mass. · 2011 · quote attribution · 2 verbatim quotes · confidence high
what the physician should know involves professional expertise and can ordinarily be proved only through the testimony of experts.
discussed Cited as authority (verbatim quote) Segal v. First Psychiatric Planners, Inc.
Mass. App. Ct. · 2007 · quote attribution · 1 verbatim quote · confidence high
hat the physician should know involves professional expertise and can ordinarily be proved only through the testimony of experts
examined Cited as authority (verbatim quote) Myers v. Alaska Psychiatric Institute (4×) also: Cited as authority (rule), Cited "see"
Alaska · 2006 · quote attribution · 1 verbatim quote · confidence high
to protect the incompetent person within its power, the state must recognize the dignity and worth of such a person and afford to that person the same panoply of rights and choices it recognizes in competent persons.
examined Cited as authority (verbatim quote) Darviris v. Petros (2×) also: Cited as authority (rule)
Mass. · 2004 · quote attribution · 1 verbatim quote · confidence high
a physician owes to his patient the duty to 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
discussed Cited as authority (verbatim quote) Feeley v. Baer (2×) also: Cited as authority (rule)
Mass. · 1997 · quote attribution · 1 verbatim quote · confidence high
appropriate information may include . . . the likely result of no treatment . . .
examined Cited as authority (verbatim quote) Skripek v. Bergamo (2×) also: Cited as authority (quoted)
N.J. Super. Ct. App. Div. · 1985 · quote attribution · 2 verbatim quotes · confidence high
plaintiff must also show that had the proper information been provided neither he nor a reasonable person in similar circumstances would have undergone the procedure
examined Cited as authority (verbatim quote) DiGiovanni v. Latimer (4×) also: Cited as authority (rule)
Mass. · 1983 · quote attribution · 2 verbatim quotes · confidence high
physician owes to his patient the duty to 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
discussed Cited as authority (rule) STEPHEN G. MCDONOUGH, Personal Representative v. SAYUJ PAUDEL & Others.
Mass. App. Ct. · 2025 · confidence medium
Ctr., 387 Mass. 152, 155 (1982), therefore Dr. Paudel still had a duty to disclose "information about that risk that he reasonably should have recognized [the decedent] would consider important." Precourt v. Frederick, 395 Mass. 689, 694 (1985). 6 Of course, the statutory interest is fixed at twelve percent, see G.
cited Cited as authority (rule) FRANCIS HENNESSEY & Another v. CAPE COD ORTHOPEDICS AND SPORTS MEDICINE, P.C. & Another.
Mass. App. Ct. · 2025 · confidence medium
Ctr., 387 Mass. 152, 155 (1982).
cited Cited as authority (rule) SUSAN GALLAGHER v. SOUTH SHORE HOSPITAL, INC., & others.
Mass. App. Ct. · 2022 · confidence medium
Ctr., 387 Mass. 152, 154 (1982).
discussed Cited as authority (rule) Christian Lewis v. Sheila D. Moore
11th Cir. · 2017 · confidence medium
Ctr., 387 Mass. 152 , 439 N.E.2d 240, 244 (1982); Reinhardt v. Colton, 337 N.W.2d 88, 95-96 (Minn. 1983); Hook v. Rothstein, 281 S.C. 541 , 316 S.E.2d 690, 704 (1984); Nickell v. Gonzalez, 17 Ohio St.3d 136 , 477 N.E.2d 1145, 1148 (1985); Smith v. Cotter, 107 Nev. 267 , 810 P.2d 1204, 1209 (1991); Bernard v. Block, 176 A.D.2d 843 , 575 N.Y.S.2d 506, 511 (1991); Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537 , 800 A.2d 73, 79-80 (2002); see also Cochran v. Wyeth, Inc., 3 A.3d 673, 680 (Pa. Super.
examined Cited as authority (rule) Bradley v. Sugarbaker (3×)
1st Cir. · 2015 · confidence medium
Ctr., 387 Mass. 152 , 439 N.E.2d 240, 242 (1982).
cited Cited as authority (rule) Guardianship of L.H.
Mass. App. Ct. · 2014 · confidence medium
Center, 387 Mass. 152, 154 (1982).
discussed Cited as authority (rule) Ike J. White, III v. David A. Beeks, M.D.
Tenn. Ct. App. · 2013 · confidence medium
See, e.g., Funke v. Fieldman, 212 Kan. 524 , 512 P.2d 539, 548 (1973); Scott v. Bradford, 606 P.2d 554, 559 (Ok. 1979); Hales v. Pittman, 118 Ariz. 305 , 576 P.2d 493, 499 (1978); Harnish v. Children’s Hospital Medical Center, 387 Mass. 152 , 439 N.E.2d 240, 244 (1982); Reinhardt v. Colton, 337 N.W.2d 88, 95-96 (Minn. 1983); LaCaze v. Collier, 434 So.2d 1039, 1048 (La. 1983); Nickell v. Gonzalez, 17 Ohio St.3d 136 , 477 N.E.2d 1145, 1148 (1985); Smith v. Cotter, 107 Nev. 267 , 810 P.2d 1204, 1209 (1991); Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537 , 800 A.2d 73, 79-80 (2002); s…
cited Cited as authority (rule) Commonwealth v. Pugh
Mass. · 2012 · confidence medium
Ctr., 387 Mass. 152, 154 (1982), quoting Wilkinson v. Vesey, 110 R.I. 606, 624 (1972).
discussed Cited as authority (rule) Wilson v. Robertson
Mass. Super. Ct. · 2012 · confidence medium
Rptr. 591 (1999) (see Wilson memorandum, p. 7), which was decided more than a dozen years ago, the “more recent Massachusetts cases” (sic) such as Harnish v. Children’s Hospital Medical Center, 387 Mass. 152, 159 (1982) (see Wilson memorandum, page 8), decided two decades ago, and finally, the “recent” (again, sic) Massachusetts Superior Court case [of] Judge Toomey” in Mahoney v. Bors-Koefoed, 11 Mass. L.
discussed Cited as authority (rule) Cochran v. Wyeth, Inc.
Pa. Super. Ct. · 2010 · confidence medium
See, e.g., Funke v. Fieldman, 212 Kan. 524 , 512 P.2d 539, 548 (1973); Scott v. Bradford, 606 P.2d 554, 559 (Ok.1979); Hales v. Pittman, 118 Ariz. 305 , 576 P.2d 493, 499 (1978); Hamish v. Children’s Hospital Medical Center, 387 Mass. 152 , 439 N.E.2d 240, 244 (1982); Reinhardt v. Colton, 337 N.W.2d 88, 95-96 (Minn.1983); LaCaze v. Collier, 434 So.2d 1039, 1048 (La.1983); Nickell v. Gonzalez, 17 Ohio St.3d 136 , 477 N.E.2d 1145, 1148 (1985); Smith v. Cotter, 107 Nev. 267 , 810 P.2d 1204, 1209 (1991); Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537 , 800 A.2d 73, 79-80 (2002); see a…
examined Cited as authority (rule) Vasa v. Compass Medical, P.C. (3×) also: Cited "see"
Mass. · 2010 · confidence medium
Ctr., 387 Mass. 152, 154-155 (1982).
cited Cited as authority (rule) Monahan v. Sorour
Mass. Super. Ct. · 2009 · confidence medium
Harnish v. Children’s Hosp., 387 Mass. 152, 159 (1982).
cited Cited as authority (rule) Nelson v. Bosley Medical Group, P.C.
Mass. Super. Ct. · 2007 · confidence medium
Ctr., 387 Mass. 152, 159 (1982).
cited Cited as authority (rule) McGonagle v. Home Depot U.S.A, Inc.
Mass. Super. Ct. · 2007 · confidence medium
Ctr., 387 Mass. 152, 154 (1982).
discussed Cited as authority (rule) Ksypka v. Malden YMCA
Mass. Super. Ct. · 2007 · confidence medium
Cases involving the doctrine of informed consent involve physicians who have allegedly failed 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.” Harnish v. Children’s Hospital Medical Center, 387 Mass. 152, 154-56 (1982); see Roukounakis v. Messer, 63 Mass.App.Ct. 482 (2005).
cited Cited as authority (rule) Commonwealth v. Carlson
Mass. · 2006 · confidence medium
Ctr., 387 Mass. 152, 154 (1982); Superintendant of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 744-745 (1977).
cited Cited as authority (rule) Ward v. Kylander
Mass. Super. Ct. · 2006 · confidence medium
Center, 387 Mass. 152, 158 (1982)).
cited Cited as authority (rule) Carey v. New England Organ Bank
Mass. · 2006 · confidence medium
Ctr., 387 Mass. 152, 155 (1982), to the area of post mortem anatomical donations.
cited Cited as authority (rule) Commissioner of Correction v. Turner
Mass. Super. Ct. · 2006 · confidence medium
Harnish v. Children’s Hospital Medical Center, 387 Mass. 152, 154 (1982); see also Lane v. Candura, 6 Mass.App.Ct. 377, 383 (1978).
discussed Cited as authority (rule) Darke ex rel. Estate of Darke v. Estate of Isner (2×)
Mass. Super. Ct. · 2005 · confidence medium
Medical Center, 387 Mass. 152, 154 (1982).
cited Cited as authority (rule) Morrisey v. Lieberman
Mass. Super. Ct. · 2005 · confidence medium
Medical Center, 387 Mass. 152, 155 (1982).
cited Cited as authority (rule) Roukounakis v. Messer
Mass. App. Ct. · 2005 · confidence medium
Center, 387 Mass. 152, 156 (1982).
cited Cited as authority (rule) Darviris v. Petros
Mass. App. Ct. · 2003 · confidence medium
Center, 387 Mass. 152, 155-156 (1982); Aceto v. Dougherty, 415 Mass. 654, 661 (1993), accrued almost immediately.
examined Cited as authority (rule) Harrison v. United States (3×) also: Cited "see, e.g."
D. Mass. · 2002 · confidence medium
Harnish , 387 Mass, at 156, 439 N.E.2d 240 (internal citations omitted).
cited Cited as authority (rule) Heinrich Ex Rel. Heinrich v. Sweet
1st Cir. · 2002 · confidence medium
Ctr., 387 Mass. 152 , 439 N.E.2d 240, 243 (1982).
examined Cited as authority (rule) Harrison v. United States (7×) also: Cited "see"
1st Cir. · 2002 · confidence medium
Ctr., 387 Mass. 152 , 439 N.E.2d 240, 242 (Mass.1982).
cited Cited as authority (rule) Hohenleitner v. Quorum Health Resources, Inc.
Mass. · 2001 · confidence medium
Ctr., 387 Mass. 152, 159 (1982); Gugino v. Harvard Community Health Plan, supra 6 ; Kapp v. Ballantine, supra; Benson v. Massachusetts Gen.
cited Cited as authority (rule) Ketchup v. Howard
Ga. Ct. App. · 2001 · confidence medium
Center, 387 Mass. 152 , 439 N.E.2d 240, 243 (1982). 21.
discussed Cited as authority (rule) Steele v. Hamilton Cty. Community Mental Health Bd.
Ohio · 2000 · confidence medium
Ctr. (1982), 387 Mass. 152, 154 , 439 N.E.2d 240, 242 (“ ‘Every competent adult has a right “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.” ’ ”). 7.
discussed Cited as authority (rule) Steele v. Hamilton County Community Mental Health Board
Ohio · 2000 · confidence medium
Ctr. (1982), 387 Mass. 152, 154 , 439 N.E.2d 240, 242 (“ ‘Every competent adult has a right “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.” ’ ”).
discussed Cited as authority (rule) Benson v. Massachusetts General Hospital (2×)
Mass. App. Ct. · 2000 · confidence medium
Center, 387 Mass. 152, 155-158 (1982).
discussed Cited as authority (rule) Patterson v. Liberty Mutual Insurance
Mass. App. Ct. · 2000 · confidence medium
Center, 387 Mass. 152, 159 (1982); Kelley v. Rossi, 395 Mass. 659, 661-663 (1985); Williams v. Hartman, 413 Mass. 398, 400-401 (1992); Chase v. Independent Practice Assn., 31 Mass. App. Ct. 661, 665 (1991); Reida v. Cape Cod Hosp., 36 Mass. App. Ct. 553, 554 (1994).
examined Cited as authority (rule) Shine v. Vega (3×)
Mass. · 1999 · confidence medium
Ctr., 387 Mass. 152, 157 (1982) (burden of proving privilege rests with physician), citing Canterbury v. Spence, 464 F.2d 772, 791 (D.C.
cited Cited as authority (rule) Hohenleitner v. Quorum Health Resources, Inc.
Mass. Super. Ct. · 1999 · confidence medium
See generally Gugino v. Harvard Community Health Plan, 380 Mass. at 468 ; Harnish v. Children’s Hospital Medical Center, 387 Mass. 152, 159 (1982).
examined Cited as authority (rule) Rudow v. Commissioner of the Division of Medical Assistance (3×)
Mass. · 1999 · confidence medium
Medical Ctr., 387 Mass. 152, 154 (1982), citing Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 738-739 (1977); Matter of Spring, 380 Mass. 629, 634, 637-638 (1980).
discussed Cited as authority (rule) Steinhilber v. McCarthy (2×)
D. Mass. · 1998 · confidence medium
Under the second component, as also explained to the jury in the general charge, “The information a physician reasonably should possess is that information possessed ... by the average qualified physician practicing that specialty.” Harnish v. Children’s Hospital Medical Center, 387 Mass. 152 , 439 N.E.2d 240, 243 (Mass.1982).
discussed Cited as authority (rule) Feeley v. Baer (2×)
Mass. App. Ct. · 1996 · confidence medium
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.
discussed Cited as authority (rule) Haney v. Stewart
Mass. Super. Ct. · 1996 · confidence medium
See Halley v. Birbiglia, 390 Mass. 540, 548-49 (1983) (no malpractice liability for failure to obtain informed consent prior to performing arteriogram, where defendant was not admitting or attending physician, did not order or perform arteriogram, but only intermittently saw patient before arteriogram and had recommended arteriogram); Harnish v. Children’s Hospital Medical Center, 387 Mass. 152, 159 (1982) (physician who only assisted admitting physician during surgery was not liable for failure to obtain informed consent of patient).
discussed Cited as authority (rule) Panse v. Beth Israel Hospital, Inc.
Mass. Super. Ct. · 1995 · confidence medium
Even assuming staff affiliation, the lack of any evidence that defendant BIH had any “power of control over [Dr. Shah’s] professional conduct,” Harnish v. Children’s Hospital Medical Center, 387 Mass. 152, 159 (1982) (citations omitted), leads to the conclusion that there was no employment relation between defendant BIH and Dr. Shah.
cited Cited as authority (rule) Reida v. Cape Cod Hospital
Mass. App. Ct. · 1994 · confidence medium
Center, 387 Mass. 152, 159 (1982); Kelley v. Rossi, 395 Mass. 659, 662 (1985); Chase v. Independent Practice Assn., Inc., 31 Mass. App. Ct. 661, 665 (1991). 2.
discussed Cited as authority (rule) McMahon v. Finlayson (2×)
Mass. App. Ct. · 1994 · confidence medium
Center, 387 Mass. 152, 155 (1982).
discussed Cited as authority (rule) Retirement Board v. Contributory Retirement Appeal Board
Mass. App. Ct. · 1994 · confidence medium
Center, 387 Mass. 152, 156 (1982), and that physicians are not expected to “warrant a cure,” Riggs v. Christie, 342 Mass. 402, 406 (1961), but rather only to “exercise the care and skill of the average qualified practitioner [or specialist].” Simmons v. Yurchak, 28 Mass. App. Ct. 371, 377 (1990).
Retrieving the full opinion text from the archive…
Janine Harnish
v.
Children's Hospital Medical Center & others
Massachusetts Supreme Judicial Court.
Aug 13, 1982.
439 N.E.2d 240
Joseph G. Abromovitz for the plaintiff., Joseph L. Doherty, Jr., for the defendants.
Connor.
Cited by 125 opinions  |  Published
2 passages pin-cited by 2 cases
Pinpoint authority: bottom 90%
Citer courts: D. Massachusetts (1) · New Jersey Superior Court App … (1)
O’Connor, J.

The plaintiff underwent an operation to remove a tumor in her neck. During the procedure, her hypoglossal nerve was severed, allegedly resulting in a permanent and almost total loss of tongue function.

The plaintiff’s complaint charges the defendant physicians and hospital with misrepresentation and negligence in failing to inform her before surgery of the risk of loss of tongue function. The complaint alleges that the purpose of the operation was cosmetic, that the loss of tongue function was a material and foreseeable risk of the operation, and that, had the plaintiff been informed of this risk, she would not have consented to the operation. There is no claim that the operation was negligently performed.

A medical malpractice tribunal, convened pursuant to G. L. c. 231, § 60B, concluded that the plaintiff’s offer of proof was insufficient to raise a question appropriate for judicial inquiry. The action was dismissed after the plaintiff failed to post a bond in accordance with G. L. c. 231, § 60B. The plaintiff appeals from the judgment of dismissal, claiming that her offer of proof satisfied the requirements of the directed verdict test, as defined in Kapp v. Ballantine, 380 Mass. 186, 192 (1980), and Little v. Rosenthal, 376 Mass. 573, 578 (1978). She argues that her offer of proof was sufficient to raise a question of liability under the doctrine of lack of informed consent.[2] We reverse so much of the judgment of dismissal as applies to Drs. Holmes and Mulliken, and affirm the dismissal of the complaint against Dr. Gilman and Children’s Hospital Medical Center.

1. The rule of liability. A medical malpractice tribunal has jurisdiction over actions for “malpractice, error or mis[*154] take against a provider of health care.” G. L. c. 231, § 60B, inserted by St. 1975, c. 362, § 5. The performance of a surgical procedure by a physician without the patient’s consent constitutes professional misconduct, is malpractice within G. L. c. 231, § 60B, and is subject to the procedures established by this statute. Lubanes v. George, 386 Mass. 320, 325 (1982).

“There is implicit recognition in the law of the Commonwealth, as elsewhere, that a person has a strong interest in being free from nonconsensual invasion of his bodily integrity. ... In short, the law recognizes the individual interest in preserving ‘the inviolability of his person.’ Pratt v. Davis, 118 Ill. App. 161, 166 (1905), aff'd, 224 Ill. 300 (1906). One means by which the law has developed in a manner consistent with the protection of this interest is through the development of the doctrine of informed consent.” Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 738-739 (1977). See also Matter of Spring, 380 Mass. 629, 634, 637-638 (1980); Cobbs v. Grant, 8 Cal. 3d 229, 242 (1972); Schloendorff v. Society of the New York Hosp., 211 N.Y. 125, 129-130 (1914). “[I]t is the prerogative of the patient, not the physician, to determine . . . the direction in which ... his interests lie.” Cobbs v. Grant, supra at 242. Canterbury v. Spence, 464 F.2d 772, 781 (D.C. Cir.), cert. denied, 409 U.S. 1064 (1972). Every competent adult has a right “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.” Wilkinson v. Vesey, 110 R.I. 606, 624 (1972). Knowing exercise of this right requires knowledge of the available options and the risks attendant on each. Canterbury v. Spence, supra at 780. Cobbs v. Grant, supra at 242-243. We hold, therefore, 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 proce[*155] dure constitutes professional misconduct and comes within the ambit of G. L. c. 231, § 60B.[3]

While we recognize that a patient ordinarily cannot make an intelligent decision whether to undergo a medical or surgical procedure without receiving from the physician information significant to the decision, Canterbury v. Spence, supra at 780, 782, we also recognize that there are limits to what society or an individual can reasonably expect of a physician in this regard. Medical matters are often complex. Recommendations of treatment frequently require the application of considerable medical knowledge gained through extensive training and experience. Communication of scientific information by the trained physician to the untrained patient may be difficult. The remotely possible risks of a proposed treatment may be almost without limit. The patient’s right to know must be harmonized with the recognition that an undue burden should not be placed on the physician. These interests are accommodated by the rule that we adopt today, that a physician owes to his patient the duty to 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. 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. Brune v. Belinkoff, 354 Mass. 102, 109 (1968). Haggerty v. McCarthy, 344 Mass. 136,[*156] 139 (1962). What the physician should know involves professional expertise and can ordinarily be proved only through the testimony of experts. See id. at 139-142. Wilkinson v. Vesey, supra at 626. However, the extent to which he must share that information with his patient depends upon what information he should reasonably recognize is material to the plaintiff’s decision. Canterbury v. Spence, supra at 787. Wilkinson v. Vesey, supra at 627-628. “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.” Id. at 627. The materiality determination is one that lay persons are qualified to make without the aid of an expert. Canterbury v. Spence, supra at 784-785. Wilkinson v. Vesey, supra at 625. Appropriate 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. Canterbury v. Spence, supra at 781-783, 787-788. The obligation to give adequate information does not require the disclosure of all risks of a proposed therapy, Wilkinson v. Vesey, supra at 627, or of information the physician reasonably believes the patient already has, such as the risks, like infection, inherent in any operation. Canterbury v. Spence, supra at 788.

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.[4] [*157] 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. Canterbury v. Spence, supra at 783-787. Wilkinson v. Vesey, supra at 625. Cobbs v. Grant, supra at 243, 245.

We recognize that, despite the importance of the patient’s right to know, there may be situations that call for a privilege of nondisclosure. Cobbs v. Grant, supra at 245-246. For instance, sound medical judgment might indicate that disclosure would complicate the patient’s medical condition or render him unfit for treatment. “Where that is so, the cases have generally held that the physician is armed with a privilege to keep the information from the patient .... The physician’s privilege to withhold information for therapeutic reasons must be carefully circumscribed, however, for otherwise it might devour the disclosure rule itself. The privilege does not accept the paternalistic notion that the physician may remain silent simply because divulgence might prompt the patient to forego therapy the physician feels the patient really needs” (footnotes omitted). Canterbury v. Spence, supra at 789. A full discussion of the privilege is neither required nor attempted here, because the burden of proving it must rest with the physician, Canterbury v. Spence, supra at 791, and thus the question of privilege is inappropriate to the directed verdict standard to be applied to the plaintiff’s offer of proof before the medical malpractice tribunal. Little v. Rosenthal, supra at 578. Kapp v. Ballantine, supra at 760.

2. Causation. We turn to the question of causation. “An unrevealed risk that should have been made known must[*158] materialize, for otherwise the omission, however unpardonable, is legally without consequence.” Canterbury v. Spence, supra at 790. Schroeder v. Lawrence, 372 Mass. 1, 5 (1977). Whether the alleged undisclosed risk materialized is a medical question appropriate to the tribunal’s inquiry. At trial, the plaintiff must also show that had the proper information been provided neither he nor a reasonable person in similar circumstances would have undergone the procedure. Id. at 5. Wilkinson v. Vesey, supra at 628-629. Such proof, not relating to medical questions, is not appropriate to the tribunal’s inquiry. Lubanes v. George, supra at 325. Salem Orthopedic Surgeons, Inc. v. Quinn, 377 Mass. 514, 521 (1979).

3. The offer of proof. The plaintiff’s offer of proof, which we accept as true, McMahon v. Glixman, 379 Mass. 60, 65-66 (1979), Little v. Rosenthal, supra at 578, consisted of her affidavit, an opinion letter from two oral surgeons, and various hospital reports. We summarize the offer of proof, relying principally on the surgeons’ letter. In April, 1978, a subtotal excision of a cystic hygroma was performed on the plaintiff’s neck at the defendant hospital. Over a course of several years the plaintiff "had required several surgical procedures for this disorder. Although the disease had in the past been life threatening, the April, 1978, procedure was done purely for cosmetic reasons. The procedure resulted in severance of the hypoglossal nerve with resulting severe dysfunctions in speech, mastication, saliva management, and swallowing. The severance of the nerve, with the ensuing consequences, was foreseeable as a probability despite proper performance of the surgery. Standard and acceptable medical practice required that the plaintiff be informed before the operation of the risk of nerve severance and the consequences of severance. The plaintiff was not given that information. If she had been, she would have declined the operation.

According to the offer of proof, Dr. Mulliken was the admitting physician and surgeon in charge of the operation. Dr. Holmes and Dr. Gilman assisted at the operation. In[*159] addition, before the operation Dr. Holmes discussed with the plaintiff the potential consequences, risks and side effects of the surgery, but he never informed her of the risk of loss of tongue function and its consequences. He told the plaintiff that he would perform the operation successfully.

It is apparent that the offer of proof was sufficient to raise a question appropriate for judicial inquiry with respect to the defendants Mulliken and Holmes. The only mention of Dr. Gilman in the offer of proof is found in the operative report, where he is listed as an assistant. The plaintiff asserts that Dr. Gilman’s participation as an assistant is sufficient to create a doctor-patient relationship with a concomitant duty of disclosure. The plaintiff does not present any case law to support this proposition, and we have found no authority that would impose such a duty on a surgical assistant. It would not be reasonable to require all of the individuals who only assist in the operating room to obtain the informed consent of the patient.

The plaintiff claims that the hospital is vicariously liable for the alleged negligence of the surgeons. In her brief, the plaintiff argues that the doctors were servants of the hospital. The offer of proof does not show the surgeons’ affiliation with the hospital. Even if we were to assume staff affiliation, there is nothing to show that the hospital had power of control over the surgeons’ professional conduct. Kapp v. Ballantine, supra at 762. See generally Khoury v. Edison Elec. Illuminating Co., 265 Mass. 236, 238 (1928).

The judgment as to the defendants Mulliken and Holmes is reversed. The judgment as to defendants Gilman and Children’s Hospital Medical Center is affirmed.

So ordered.

2

In her brief, the plaintiff asserts that her claim is based solely on the doctrine of lack of informed consent. Since she does not present argument on the propriety of the tribunal’s ruling as it relates to her claims of misrepresentation, we do not address this issue on appeal. Commonwealth v. Horton, 376 Mass. 380, 388 (1978), cert. denied, 440 U.S. 923 (1979).

3

For recent cases in accord with this holding, see Steele v. St. Paul Fire & Marine Ins. Co., 371 So. 2d 843 (La. App. 1979); Gerety v. Demers, 92 N.M. 396 (1978); Scott v. Bradford, 606 P.2d 554 (Okla. 1979); Holland v. Sisters of St. Joseph of Peace, 270 Or. 129 (1974); Cornfeldt v. Tongen, 295 N.W.2d 638 (Minn. 1980); Nixdorf v. Hicken, 612 P.2d 348 (Utah 1980); Small v. Gifford Memorial Hosp., 133 Vt. 552 (1975); Klink v. G.D. Searle & Co., 26 Wash. App. 951 (1980); Miller v. Kennedy, 11 Wash. App. 272 (1974), aff'd, 85 Wash. 2d 151 (1975).

For a thorough discussion of the subject, see Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.), cert, denied, 409 U.S. 1064 (1972); Cobbs v. Grant, 8 Cal. 3d 229 (1972); Wilkinson v. Vesey, 110 R.I. 606 (1972); Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw. U.L. Rev. 628 (1970).

4

See, e.g., Dessi v. United States, 489 F. Supp. 722 (D. Va. 1980); Watkins v. United States, 482 F. Supp. 1006 (M.D. Tenn. 1980); Fuller v. Starnes, 268 Ark. 476 (1980); Bloskas v. Murray, 618 P.2d 719, 723 (Colo. App. 1980); Wagner v. Olmedo, 365 A.2d 643 (Del. 1976); Buckner v. Allergan Pharmaceuticals, Inc., 400 So. 2d 820 (Fla. Dist. Ct. App. 1981); Ziegert v. South Chicago Community Hosp., 99 Ill. App. 3d 83 (1981); Collins v. Meeker, 198 Kan. 390 (1967); Woolley v. Henderson, [*157] 418 A.2d 1123 (Maine 1980); Llera v. Wisner, 171 Mont. 254 (1976); Folger v. Corbett, 118 N.H. 737 (1978); Calabrese v. Trenton State College, 162 N.J. Super. 145 (1978), aff’d, 82 N.J. 321 (1980); Kaplan v. Haines, 96 N.J. Super. 242 (1967), aff’d, 51 N.J. 404 (1968); German v. Nichopoulos, 577 S.W.2d 197 (Tenn. App. 1978); Sherrill v. McBride, 603 S.W.2d 365 (Tex. Civ. App. 1980); Bly v. Rhoads, 216 Va. 645 (1976).