informed consent doctrine in Massachusetts

2014L. c. 201D, § 2, “[e]very competent adult shall have the right to appoint a health care agent by executing a health care proxy.” This statutory right reflects the doctrine of informed consent, which promotes an individual’s “strong interest in being free from nonconsensual invasion of his bodily integrity” and protects his “human dignity and self-determination.” Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 739 (1977).

1997One 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 Sch. v. Saikewicz, 373 Mass. 728, 738-739 (1977).” Harnish, supra at 154 .

2025The defendants' claim that this case is like Roukonakis v. Messer, 63 Mass. App. Ct. 482, 484 (2005), where a claim of informed consent was not permitted to go forward because "the question of informed consent [could not] be separated from the question of negligence." In that case, the negligence claim was based on the doctor's failure to properly read a mammogram, detect a potentially cancerous abnormality, and pursue further testing, 5 and the informed consent claim was also based on his failure to properly read the mammogram and disclose to the plaintiff the fact that she had a potentially

2025Id. at 482-486 .

2014See Cohen v. Bolduc, 435 Mass. 608, 617 (2002) (purpose of health care proxy statute is “to support and enhance patient autonomy”).

2005See also Commonwealth v. Adjutant, 443 Mass. 649, 667 (2005) (giving retroactive application of new common-law rule of evidence on victim’s prior conduct to defendant who alleged error and argued for rule on direct appeal).

2005See Halley v. Birbiglia, 390 Mass. 540, 544-546 (1983) (giving retroactive application of court’s later adoption of doctrine of informed consent); Phillips v. Cameron Tool Corp., 950 F.2d 488, 491 (7th Cir. 1991) (appellate right to challenge jury instruction preserved where change in settled law pending appeal); Brown v. M & M/Mars, 883 F.2d 505, 512-513 (7th Cir. 1989) (where law changed by Supreme Court while appeal pending, defendant did not waive right to contest instruction given).

2005See Halley v. Birbiglia, 390 Mass. 540, 544-546 (1983) (giving retroactive application of court’s later adoption of doctrine of informed consent); Phillips v. Cameron Tool Corp., 950 F.2d 488, 491 (7th Cir. 1991) (appellate right to challenge jury instruction preserved where change in settled law pending appeal); Brown v. M & M/Mars, 883 F.2d 505, 512-513 (7th Cir. 1989) (where law changed by Supreme Court while appeal pending, defendant did not waive right to contest instruction given).

2005See Halley v. Birbiglia, 390 Mass. 540, 544-546 (1983) (giving retroactive application of court’s later adoption of doctrine of informed consent); Phillips v. Cameron Tool Corp., 950 F.2d 488, 491 (7th Cir. 1991) (appellate right to challenge jury instruction preserved where change in settled law pending appeal); Brown v. M & M/Mars, 883 F.2d 505, 512-513 (7th Cir. 1989) (where law changed by Supreme Court while appeal pending, defendant did not waive right to contest instruction given).

1997I write separately, however, to make clear that I do not subscribe to the notion, apparently accepted by this court and by the Appeals Court (see 41 Mass. App. Ct. 239, 242 [1996]), that the informed consent doctrine articulated in Hornish v. Children’s Hosp.

1996See Brune v. Belinkoff, 354 Mass. 102 (1968).

1985See Wilkinson v. Vesey, 110 R.I. at 627 -28 . . .”).

1985See Wilkinson v. Vesey, 110 R.I. at 627 -28 ...").

1985At trial, once the severity and probability of the risk is presented, the trier of fact may determine materiality without the further aid of expert testimony”); Winkjer v. Herr, 277 N.W.2d 579, 588 (N.D. 1979) (“There is no need to disclose risks of little consequence, those that are extremely remote, or those that are common knowledge as inherent in the treatment”); Beauvais v. Notre Dame Hosp., 120 R.I. 271, 276 (1978) (in affirming the granting of a directed verdict for the defendant physician in a case involving the doctrine of informed consent, the court said: “While it is clear that defe

1985At trial, once the severity and probability of the risk is presented, the trier of fact may determine materiality without the further aid of expert testimony"); Winkjer v. Herr, 277 N.W.2d 579, 588 (N.D. 1979) ("There is no need to disclose risks of little consequence, those that are *696 extremely remote, or those that are common knowledge as inherent in the treatment"); Beauvais v. Notre Dame Hosp., 120 R.I. 271, 276 (1978) (in affirming the granting of a directed verdict for the defendant physician in a case involving the doctrine of informed consent, the court said: "While it is clear that

1985At trial, once the severity and probability of the risk is presented, the trier of fact may determine materiality without the further aid of expert testimony”); Winkjer v. Herr, 277 N.W.2d 579, 588 (N.D. 1979) (“There is no need to disclose risks of little consequence, those that are extremely remote, or those that are common knowledge as inherent in the treatment”); Beauvais v. Notre Dame Hosp., 120 R.I. 271, 276 (1978) (in affirming the granting of a directed verdict for the defendant physician in a case involving the doctrine of informed consent, the court said: “While it is clear that defe

1985At trial, once the severity and probability of the risk is presented, the trier of fact may determine materiality without the further aid of expert testimony"); Winkjer v. Herr, 277 N.W.2d 579, 588 (N.D. 1979) ("There is no need to disclose risks of little consequence, those that are *696 extremely remote, or those that are common knowledge as inherent in the treatment"); Beauvais v. Notre Dame Hosp., 120 R.I. 271, 276 (1978) (in affirming the granting of a directed verdict for the defendant physician in a case involving the doctrine of informed consent, the court said: "While it is clear that

1983See Berardi v. Menicks, 340 Mass. 396 (1960) (failure to inform patient that surgical procedure was not complete and that additional operation was required could be found to be negligence); Haggerty v. McCarthy, 344 Mass. 136 (1962) (failure to complete operation which resulted in substantial medical risk may create duty to inform).

1982See 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 .

1982See 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 .

1982See 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 .

1982See 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 .

1977While the doctrine to the extent it may justify recovery in tort for the breach of a physician’s duty has not been formally recognized by this court, Schroeder v. Lawrence, 372 Mass. 1 (1977); see Baird v. Attorney Gen., 371 Mass. 741 (1977); Reddington v. Clayman, 334 Mass. 244 (1956); G.