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COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, ss. SUPERIOR COURT
CIVIL ACTION NO: 1872CV00606
)
DOUGLAS A. CAPAK,
PERSONAL REPRESENTATIVE OF THE )
ESTATE OF DAWN MARIE ROBERTS, )
Plaintiff,
Vv.
CLOE F. SHELTON, M.D.,
ANTHONY CARAVELLO, M.D.,
SHARON MAHONEY, M.D.,
SUSAN ANDEREGG, M.D.,
CAPE COD HOSPITAL,
TRISTAN MEDICAL P.C.,
G. CURTIS BARRY, M.D., P.C., and
CAPE OBSTETRICS & GYNECOLOGY, P.C., )
Defendants. )
)
DEFENDANTS, SUSAN ANDEREGG, M.D., CAPE COD HOSPITAL, AND
CAPE OBSTETRICS & GYNECOLOGY, P.C.’S
MOTION IN LIMINE TO PRECLUDE PLAINTIFF’S INFORMED CONSENT CLAIM
Now come the defendants, Susan Anderegg, M.D., Cape Cod Hospital, and Cape Obstetrics
& Gynecology, P.C. (“Defendants”), and hereby move this Court to preclude the Plaintiff from
alleging a theory of failure to obtain informed consent, set forth against Dr. Susan Anderegg in
Counts XXXI and XXXII, against Cape Cod Hospital in Counts XXXIX and XL, and against Cape
Obstetrics & Gynecology, P.C. in Counts LXIII and LXIV of Plaintiff's Complaint. In support
thereof, Defendants state the following.
ARGUMENT
I CLAIMS AGAINST DR. ANDEREGG FOR BREACH OF INFORMED CONSENT
SHOULD BE DISMISSED.
A Roukounakis Bars Plaintiff's Informed Consent Claim Because the Question of
Informed Consent Cannot Be Separated from the Question of Negligence Since
Plaintiff Alleges Dr. Anderegg Failed to Diagnose Plaintiff's Condition.
It is settled law in Massachusetts that a plaintiff cannot bring an informed consent claim
where the alleged medical malpractice involves the allegation of negligent failure to diagnose. See
R oukounakis v. Messer, et al, 63 Mass. App. Ct. 482, 487 (2005). The reason for the law is clear:
“[T]he duty to disclose does not arise until the physician becomes aware of the condition by
diagnosing it.” Id, at 486, quoting Bays v. St. Luke’s Hosp., 63 Wash. App. 876, 881 (1992). In
this case, Plaintiff alleges that the Defendants were negligent in their delay in the diagnosis and
treatment of Dawn Marie Roberts’ adrenal cancer resulting in her premature death on July 6, 2017.
Specifically, Plaintiff alleges that Dr. Susan Anderegg failed to follow up on the November 11,
2011 Abdominal & Pelvic CT Scan by obtaining a dedicated CT Scan or MRI, as recommended
by the interpreting radiologist, Dr. Cloe Shelton, and as a result, Ms. Roberts suffered a multiple
year delay in the diagnosis of her cancer resulting in her premature death. The Appeals Court in
Roukounakis noted that it found “persuasive the cases precluding an additional claim based on a
theory of informed consent in circumstances” where the physician failed to diagnose the subject
condition. Roukounakis 63 Mass. App. Ct. at 487. Because Plaintiff bases their negligence claim
on the theory that Dr. Anderegg failed to diagnose and treat Ms. Roberts’ adrenal cancer, Plaintiff’s
informed consent claim cannot persist.
B Plaintiff's Informed Consent Claim Must Be Dismissed Due to Lack of Expert
Testimony.
Plaintiff has not adequately articulated an informed consent claim against Dr. Anderegg
anywhere within their Pre-Trial Memorandum. The only mention of an informed consent claim is
in the Plaintiff’s Complaint and Plaintiffs Supplement to the Pre-Trial Memorandum, which
simply contains a generic paragraph about informed consent. The basis for an informed consent
claim is 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. ... The information a physician reasonably should
possess is that information possessed by the average qualified physician or, in the case of a
speciality, by the average qualified physician practicing that specialty.” Harnish v. Children’s
Hosp. Med. Center, 387 Mass. 152, 155-56 (1982). What the physician should know and discuss
with the patient involves professional expertise and can ordinarily be proved only through expert
testimony. Id; Roukounakis, 63 Mass. App. Ct. at 485.
In this case, there is no expert identified to testify as to (a) what the average qualified
member of the medical profession practicing as a gynecologist should have known about the risks,
potential consequences, and alternatives to Dr. Anderegg’s choice of treatment of the Plaintiff; (b)
what information should have been discussed with the Plaintiff; (c) Dr. Anderegg’s failure to
inform Ms. Roberts of the options or alternatives to the risks and potential consequences of her
choice of treatment fell below the standard of care of the average qualified gynecologist; (d) had
Dr, Anderegg informed Ms. Roberts of the alternatives to and risks and potential consequences of
the choice of treatment, neither Ms. Roberts nor a reasonable person in her position would have
elected the choice of treatment; or (e) as a direct result of Dr. Anderegg’s failure to inform Ms.
Roberts of the alternatives to and risks and potential consequences of her treatment, Ms. Roberts
suffered an injury. Accordingly, the Plaintiff should be precluded from alleging a theory of failure
to obtain informed consent against Dr. Susan Anderegg.
IL. CLAIMS AGAINST CAPE COD HOSPITAL AND CAPE OBSTETRICS &
GYNECOLOGY, P.C. FOR BREACH OF INFORMED CONSENT SHOULD BE
DISMISSED.
Since there is no basis to assert a claim for breach of informed consent against Dr. Susan
Anderegg, the informed consent claims against Cape Cod Hospital and Cape Obstetrics &
Gynecology, P.C., as her alleged employer, also fail for the reasons set forth herein.
CONCLUSION
WHEREFORE, the Defendants, Susan Anderegg, M.D., Cape Cod Hospital, and Cape
Obstetrics & Gynecology, P.C., respectfully request that this Court dismiss Plaintiff’s informed
consent claims set forth against Dr. Susan Anderegg in Counts XXXI and XXXII, against Cape
Cod Hospital in Counts XXXIX and XL, and against Cape Obstetrics & Gynecology, P.C. in
Counts LXIII and LXIV of Plaintiff's Complaint.
Respectfully submitted,
The Defendants,
SUSAN ANDEREGG, M.D.,
CAPE COD HOSPITAL, and
CAPE OBSTETRICS & GYNECOLOGY, P.C.,
ys
B y their attorneys,
Dated: November 21, 2023
Tanya K. Oldenhoff, BBO #651006
Ashley E. Russo, BBO #704443
Hinchey & Oldenhoff, LLP
22 Steeple St., Suite 203
US Mail: PO Box 2690
Mashpee, MA 02649
508-419-6714
EHinchey@Hincheyllp.com
TOldenhoff@Hincheyllp.com
ARusso@Hincheyllp.com
CERTIFICATE OF SERVICE
I, Tanya K. Oldenhoff, Esquire of Hinchey & Oldenhoff, LLP, hereby certify that on this
21% day of November 2023, I served a copy of the foregoing, via email, upon the following:
COUNSEL FOR THE PLAINTIFF:
Adam Satin, Esq.
Lynn Hu, Esq.
Lubin & Meyer, PC
100 City Hall Plaza
Boston, MA 02108
617-720-4447
asatin@lubinandmeyer.com
LHu@lubinandmeyer.com
COUNSEL FOR CLOE SHELTON, M.D. and ANTHONY CARAVELLO, M.D.
Chris Lavoie, Esq.
Allyson N. Hammerstedt, Esq.
Dunn and Dunn
11 Beacon Street, Suite 1100
Boston, MA 02108
617-523-2950
clavoie@dunnanddunn.com
ahammerstedt@dunnanddunn.com
Cl OUNSEL FOR SHARON MAHONEY, M.D., TRISTAN MEDICAL, P.C., and G. CURTIS
BARRY, M.D., P.C.
Stephen M. O’Shea, Esq.
Michael J. Keefe, Esq.
Martin, Magnuson, McCarthy & Kenney
101 Merrimac Street
Boston, MA 02114-4716
617-227-3240
SOShea@mmmk.com
mkeefe@mmmk.com
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COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. SUPERIOR COURT CIVIL ACTION NO: 1872CV00606 ) DOUGLAS A. CAPAK, PERSONAL REPRESENTATIVE OF THE ) ESTATE OF DAWN MARIE ROBERTS, ) Plaintiff, Vv. CLOE F. SHELTON, M.D., ANTHONY CARAVELLO, M.D., SHARON MAHONEY, M.D., SUSAN ANDEREGG, M.D., CAPE COD HOSPITAL, TRISTAN MEDICAL P.C., G. CURTIS BARRY, M.D., P.C., and CAPE OBSTETRICS & GYNECOLOGY, P.C., ) Defendants. ) ) DEFENDANTS, SUSAN ANDEREGG, M.D., CAPE COD HOSPITAL, AND CAPE OBSTETRICS & GYNECOLOGY, P.C.’S MOTION IN LIMINE TO PRECLUDE PLAINTIFF’S INFORMED CONSENT CLAIM Now come the defendants, Susan Anderegg, M.D., Cape Cod Hospital, and Cape Obstetrics & Gynecology, P.C. (“Defendants”), and hereby move this Court to preclude the Plaintiff from alleging a theory of failure to obtain informed consent, set forth against Dr. Susan Anderegg in Counts XXXI and XXXII, against Cape Cod Hospital in Counts XXXIX and XL, and against Cape Obstetrics & Gynecology, P.C. in Counts LXIII and LXIV of Plaintiff's Complaint. In support thereof, Defendants state the following. ARGUMENT I CLAIMS AGAINST DR. ANDEREGG FOR BREACH OF INFORMED CONSENT SHOULD BE DISMISSED. A Roukounakis Bars Plaintiff's Informed Consent Claim Because the Question of Informed Consent Cannot Be Separated from the Question of Negligence Since Plaintiff Alleges Dr. Anderegg Failed to Diagnose Plaintiff's Condition. It is settled law in Massachusetts that a plaintiff cannot bring an informed consent claim where the alleged medical malpractice involves the allegation of negligent failure to diagnose. See R oukounakis v. Messer, et al, 63 Mass. App. Ct. 482, 487 (2005). The reason for the law is clear: “[T]he duty to disclose does not arise until the physician becomes aware of the condition by diagnosing it.” Id, at 486, quoting Bays v. St. Luke’s Hosp., 63 Wash. App. 876, 881 (1992). In this case, Plaintiff alleges that the Defendants were negligent in their delay in the diagnosis and treatment of Dawn Marie Roberts’ adrenal cancer resulting in her premature death on July 6, 2017. Specifically, Plaintiff alleges that Dr. Susan Anderegg failed to follow up on the November 11, 2011 Abdominal & Pelvic CT Scan by obtaining a dedicated CT Scan or MRI, as recommended by the interpreting radiologist, Dr. Cloe Shelton, and as a result, Ms. Roberts suffered a multiple year delay in the diagnosis of her cancer resulting in her premature death. The Appeals Court in Roukounakis noted that it found “persuasive the cases precluding an additional claim based on a theory of informed consent in circumstances” where the physician failed to diagnose the subject condition. Roukounakis 63 Mass. App. Ct. at 487. Because Plaintiff bases their negligence claim on the theory that Dr. Anderegg failed to diagnose and treat Ms. Roberts’ adrenal cancer, Plaintiff’s informed consent claim cannot persist. B Plaintiff's Informed Consent Claim Must Be Dismissed Due to Lack of Expert Testimony. Plaintiff has not adequately articulated an informed consent claim against Dr. Anderegg anywhere within their Pre-Trial Memorandum. The only mention of an informed consent claim is in the Plaintiff’s Complaint and Plaintiffs Supplement to the Pre-Trial Memorandum, which simply contains a generic paragraph about informed consent. The basis for an informed consent claim is 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. ... The information a physician reasonably should possess is that information possessed by the average qualified physician or, in the case of a speciality, by the average qualified physician practicing that specialty.” Harnish v. Children’s Hosp. Med. Center, 387 Mass. 152, 155-56 (1982). What the physician should know and discuss with the patient involves professional expertise and can ordinarily be proved only through expert testimony. Id; Roukounakis, 63 Mass. App. Ct. at 485. In this case, there is no expert identified to testify as to (a) what the average qualified member of the medical profession practicing as a gynecologist should have known about the risks, potential consequences, and alternatives to Dr. Anderegg’s choice of treatment of the Plaintiff; (b) what information should have been discussed with the Plaintiff; (c) Dr. Anderegg’s failure to inform Ms. Roberts of the options or alternatives to the risks and potential consequences of her choice of treatment fell below the standard of care of the average qualified gynecologist; (d) had Dr, Anderegg informed Ms. Roberts of the alternatives to and risks and potential consequences of the choice of treatment, neither Ms. Roberts nor a reasonable person in her position would have elected the choice of treatment; or (e) as a direct result of Dr. Anderegg’s failure to inform Ms. Roberts of the alternatives to and risks and potential consequences of her treatment, Ms. Roberts suffered an injury. Accordingly, the Plaintiff should be precluded from alleging a theory of failure to obtain informed consent against Dr. Susan Anderegg. IL. CLAIMS AGAINST CAPE COD HOSPITAL AND CAPE OBSTETRICS & GYNECOLOGY, P.C. FOR BREACH OF INFORMED CONSENT SHOULD BE DISMISSED. Since there is no basis to assert a claim for breach of informed consent against Dr. Susan Anderegg, the informed consent claims against Cape Cod Hospital and Cape Obstetrics & Gynecology, P.C., as her alleged employer, also fail for the reasons set forth herein. CONCLUSION WHEREFORE, the Defendants, Susan Anderegg, M.D., Cape Cod Hospital, and Cape Obstetrics & Gynecology, P.C., respectfully request that this Court dismiss Plaintiff’s informed consent claims set forth against Dr. Susan Anderegg in Counts XXXI and XXXII, against Cape Cod Hospital in Counts XXXIX and XL, and against Cape Obstetrics & Gynecology, P.C. in Counts LXIII and LXIV of Plaintiff's Complaint. Respectfully submitted, The Defendants, SUSAN ANDEREGG, M.D., CAPE COD HOSPITAL, and CAPE OBSTETRICS & GYNECOLOGY, P.C., ys B y their attorneys, Dated: November 21, 2023 Tanya K. Oldenhoff, BBO #651006 Ashley E. Russo, BBO #704443 Hinchey & Oldenhoff, LLP 22 Steeple St., Suite 203 US Mail: PO Box 2690 Mashpee, MA 02649 508-419-6714 EHinchey@Hincheyllp.com TOldenhoff@Hincheyllp.com ARusso@Hincheyllp.com CERTIFICATE OF SERVICE I, Tanya K. Oldenhoff, Esquire of Hinchey & Oldenhoff, LLP, hereby certify that on this 21% day of November 2023, I served a copy of the foregoing, via email, upon the following: COUNSEL FOR THE PLAINTIFF: Adam Satin, Esq. Lynn Hu, Esq. Lubin & Meyer, PC 100 City Hall Plaza Boston, MA 02108 617-720-4447 asatin@lubinandmeyer.com LHu@lubinandmeyer.com COUNSEL FOR CLOE SHELTON, M.D. and ANTHONY CARAVELLO, M.D. Chris Lavoie, Esq. Allyson N. Hammerstedt, Esq. Dunn and Dunn 11 Beacon Street, Suite 1100 Boston, MA 02108 617-523-2950 clavoie@dunnanddunn.com ahammerstedt@dunnanddunn.com Cl OUNSEL FOR SHARON MAHONEY, M.D., TRISTAN MEDICAL, P.C., and G. CURTIS BARRY, M.D., P.C. Stephen M. O’Shea, Esq. Michael J. Keefe, Esq. Martin, Magnuson, McCarthy & Kenney 101 Merrimac Street Boston, MA 02114-4716 617-227-3240 SOShea@mmmk.com mkeefe@mmmk.com