When I was a practicing trial lawyer, a long time ago in a galaxy far, far away (okay, so it was actually Rhode Island), our state supreme court recognized lack of informed consent as a basis for liability in medical malpractice cases. In doing so, it held that the risks that must be disclosed are those that a reasonable patient would have considered in deciding whether or not to undergo the procedure in question. Of course, expert testimony is necessary to establish what all of the material risks (disclosed and undisclosed) of the procedure are, what the alternative treatments are, etc.
Jeff Catalano, a longtime client of ours, is one of Massachusetts’s leading medical malpractice / products liability / personal injury attorneys. He recently wrote about this unusual (and distressing) case for his firm’s occasional email newsletter, and he has graciously consented to our request to reprint it here.