physician had duty to disclose particular risk "only if he had, or reasonably should have had, information about that risk"
How later courts described this case
- physician had duty to disclose particular risk "only if he had, or reasonably should have had, information about that risk"
Written by the judges who cited it.
The opinion
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-750
FRANCIS HENNESSEY & another1
vs.
CAPE COD ORTHOPEDICS AND SPORTS MEDICINE, P.C. & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Francis Hennessey, brought a medical
malpractice action against Timothy Kinkead, M.D., and Kinkead's
medical practice, Cape Cod Orthopedics and Sports Medicine, P.C.
(defendants), alleging that the defendants' negligence during
surgery caused disabling nerve damage in the plaintiff's right
leg.3 After the plaintiff disclosed on the eve of trial that he
1 Marie Hennessey.
2 Timothy Kinkead, M.D.
Because this appeal turns entirely on whether summary
3
judgment was correctly entered on Francis Hennessey's claim that
the surgery was performed without his informed consent, we refer
to him as "the plaintiff." We recognize that the complaint also
alleged a count of loss of consortium on behalf of the
plaintiff's wife, Marie Hennessey.
intended to proceed solely on a theory of lack of informed
consent and that he would not be calling an expert witness at
trial, the judge granted summary judgment for the defendants.
The plaintiff appeals, arguing that he was not required to
present expert testimony because Kinkead actually did disclose
the risk that materialized and, therefore, a jury could decide
whether that disclosure was adequate without any expert
assistance. We affirm.
Background. The materials in the record, viewed in the
light most favorable to the plaintiff, establish the following
facts. As a result of his work as a police patrol sergeant, the
plaintiff suffered repeated trauma to his right knee. After two
arthroscopic procedures failed to remedy the plaintiff's
debilitating pain, Kinkead recommended total knee replacement
surgery. Prior to the surgery, the plaintiff signed a surgical
consent form acknowledging that Kinkead had disclosed "the usual
risks" and the "special risks and consequences" associated with
knee replacement surgery. The form did not specify individual
risks, nor did it list nerve or neurovascular damage as
potential risks. According to his brief, the plaintiff
"repeatedly testified that Dr. Kinkead never disclosed to him
that the total right knee arthroplasty surgery posed the risk of
permanent nerve damage." Nonetheless, in his brief he states
2
that "it is undisputed that the risk of neurovascular injury was
disclosed to the patient" (emphasis added).
Following the surgery, the plaintiff experienced chronic
pain in his right leg and foot, pins and needles, and a
condition called "foot drop" as the result of nerve damage
sustained during surgery. The plaintiff "was deemed physically
incapable of performing the essential duties of his job" and
forced to retire from the police force.
In the parties' joint pretrial memorandum, in addition to
asserting that the defendants were negligent during surgery and
postoperative treatment, the plaintiff asserted that the
defendants failed to obtain his informed consent because they
did not inform him of the risk of nerve damage and foot drop.
During a hearing on motions in limine held the day before trial
was to begin, plaintiff's counsel disclosed that he was not
planning to prove that Kinkead's negligence during surgery
caused the plaintiff's nerve damage, but instead intended to try
the case as "a lack of informed consent case." Accordingly, he
no longer planned to call the plaintiff's previously disclosed
expert to testify. Counsel argued that because Kinkead had in
fact disclosed the risk of neurovascular injury, the only
question for the jury was whether the information disclosed was
adequate for the plaintiff to make an informed decision. The
next day the defendants moved for judgment as a matter of law,
3
arguing that, without expert testimony regarding the applicable
standard of care, the plaintiff could not prevail on his lack of
informed consent claim. Treating the defendants' motion as a
motion for summary judgment, the judge allowed it, and judgment
entered for the defendants. The plaintiff timely appealed.
Discussion. "The standard of review of a grant of summary
judgment is whether, viewing the evidence in the light most
favorable to the nonmoving party, all material facts have been
established and the moving party is entitled to a judgment as a
matter of law." Augat, Inc. v. Liberty Mutual Ins. Co., 410
Mass. 117, 120 (1991). "We review a decision to grant summary
judgment de novo." Zaleskas v. Brigham & Women's Hosp., 97
Mass. App. Ct. 55, 60 (2020).
It is well settled 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." Harnish
v. Children's Hosp. Med. Ctr., 387 Mass. 152, 155 (1982). To
establish the physician's duty to disclose, the plaintiff must
prove (1) that a doctor-patient relationship existed, (2) that
the doctor knew or reasonably should have known the medical
information subject to disclosure, (3) that the doctor
reasonably should have recognized that the information was
4
material to the patient's decision, and (4) that the doctor
failed to disclose the material information. See Halley v.
Birbiglia, 390 Mass. 540, 548 (1983). As there is no dispute
here that a doctor-patient relationship existed, and the
plaintiff's argument on appeal posits that Kinkead disclosed the
risk of "neurovascular injury," we focus our discussion on the
second and third elements.
Establishing the information that the physician possesses,
or should possess, relevant to the risks and benefits of a
particular medical procedure is central to a claim of lack of
informed consent. See Precourt v. Frederick, 395 Mass. 689, 694
(1985); Harnish, 387 Mass. at 155-156. "Only upon such a
showing would there be any basis for finding a duty of
discussion with and disclosure to the patient." Haggerty v.
McCarthy, 344 Mass. 136, 141 (1962). See Precourt, supra
(physician had duty to disclose particular risk "only if he had,
or reasonably should have had, information about that risk").
"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." Harnish, supra at 155. This
knowledge or information "involves professional expertise and
can ordinarily be proved only through the testimony of experts."
Id. at 156. It was therefore "incumbent on the plaintiff to
5
show by expert medical testimony" that undergoing total knee
replacement surgery, given the condition of the plaintiff's knee
after substantial prior medical intervention, "created a
definable and substantial medical risk" that was known or should
have been known by Kinkead. Haggerty, supra at 141. Indeed,
the plaintiff's allegation in the joint pretrial memorandum that
in providing informed consent, the defendants "fell below the
standard of care of a medical professional," implicitly
recognized the need for expert testimony. The plaintiff's
decision to proceed without expert testimony was fatal to his
case.
Even if we were to accept the plaintiff's proposition that
Kinkead himself demonstrated knowledge of the relevant medical
information because he disclosed it to the plaintiff -- in
effect, providing expert testimony against himself -- the
plaintiff still could not have proven what information was
material to his decision without an expert. In determining
materiality, appropriate information for the physician to
disclose to a patient includes "the nature and probability of
risks involved, the benefits to be reasonably expected, the
inability of the physician to predict results, . . . the likely
result of no treatment, and the available alternatives,
including their risks and benefits." Harnish, 387 Mass. at 156.
A jury may assess the materiality of the disclosure without the
6
aid of an expert, see id., but only after having heard what the
medical community regarded as relevant information concerning
the severity and likelihood of the risks. See Precourt, 395
Mass. at 695-696. These are not matters within jurors' "general
human knowledge and experience" (citation omitted). Pitts v.
Wingate at Brighton, Inc., 82 Mass. App. Ct. 285, 289 (2012).
The California appellate court's decision in Daum v.
Spinecare Med. Group, Inc., 52 Cal. App. 4th 1285 (1997), does
not alter our conclusion. In Daum, the court held that the
trial judge erred by giving a California model jury instruction
that restricted the jury to considering only expert testimony
"in deciding whether [the plaintiff] was given all the
information relevant to his decision" to allow a surgeon to
implant an experimental spinal fixation device. Id. at 1304.
The instruction was erroneous because California statute and
regulation required patients to be informed that the device was
still under investigation, and the instruction prevented the
jury from considering the prescribed warning. See id. at 1293,
1304.
The plaintiff likens his case to Daum because there, as in
his case, the patient signed a consent form shortly before
surgery. The Daum court held it "was also improper to limit the
jury to expert testimony in deciding whether the timing and
manner of the disclosure to [the plaintiff] was sufficient to
7
allow him to give his fully informed consent." Id. at 1304. To
the extent that this holding is consistent with Massachusetts
law, it does not assist the plaintiff here. In Daum, the form
that the patient signed was seven pages long, "clearly stated
the device was investigational," and "outlined specific risks
and noted alternatives to the use of the . . . device," as
required by California law. Id. at 1298. Whether the content
of the form was adequate was not at issue. Here, however, as
plaintiff's counsel argued at the hearing on the defendants'
motion for judgment, "the adequacy of the disclosure" was
central to the plaintiff's informed consent claim. The case
thus required the jury to assess the content of Kinkead's
disclosures4 and, not merely, as the plaintiff now argues in his
brief, whether the plaintiff "would have understood the risk
presented by disclosure of the medical te[r]m 'neurovascular
injury' in a pre-printed form."
The plaintiff's reliance on Zaleskas is also misplaced.
One issue in Zaleskas was whether a terminally ill cancer
patient withdrew her consent to an X-ray examination procedure
after it had begun. See Zaleskas, 97 Mass. App. Ct. at 57, 59.
On that narrow issue, we held that "consent to have one's body
4 At his deposition, Kinkead testified that he discussed the
surgery's "risks, benefits, potential complications and
alternatives" with the plaintiff at length during a March office
visit prior to the April surgery.
8
touched or positioned for an X-ray is not a matter beyond the
common knowledge or experience of a lay person and does not
require medical testimony." Id. at 64. The case before us,
however, is not about whether the plaintiff gave or withdrew
consent to the surgery. Also at issue in Zaleskas, as here, was
whether the defendant medical professionals obtained the
plaintiff's informed consent or were otherwise negligent in
providing care. See id. at 69-70. For the plaintiff to prove
those claims, we held that expert testimony was necessary:
"Without expert testimony, the plaintiffs' negligence-based
claims, which include lack of informed consent battery,
negligence, gross negligence, and conscious pain and suffering,
fail." Id. at 70.
Because the record materials demonstrated that, without
expert testimony, the plaintiff had "no reasonable expectation
of proving an essential element of [his] case," Boazova v.
9
Safety Ins. Co., 462 Mass. 346, 350 (2012), the defendants were
entitled to summary judgment.5
Judgment affirmed.
By the Court (Massing,
Neyman & Wood, JJ.6),
Clerk
Entered: April 10, 2025.
5 Given our disposition of the appeal, we need not address
the plaintiff's arguments regarding the admissibility of
independent medical examinations to prove his damages.
6 The panelists are listed in order of seniority.
10