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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.LD.,
CAPE COD HOSPITAL,
TRISTAN MEDICAL P.C.,
G. CURTIS BARRY, M.D., P.C., AND
CAPE OBSTETRICS & GYNECOLOGY, P.C.,
Defendants,
PLAINTIFF’S LIMITED OPPOSITION TO SIXTH MOTION IN LIMINE OF THE
DEFENDANTS, SHARON MAHONEY, M.D., TRISTAN MEDICAL P.C., AND G.
CURTIS BARRY, M.D., P.C., TO PRECLUDE/DISMISS PLAINTIFF’S CLAIMS FOR
BREACH OF EXPRESS/IMPLIED WARRANTY, BREACH OF CONTRACT AND
FAILURE TO OBTAIN INFORMED CONSENT.
Now comes the Plaintiff and submits his limited opposition to the Motion in Limine of
Defendants, Sharon Mahoney, M.D., Tristan Medical P.C. and G. Curtis Barry, M.D., P.C., to
preclude/dismiss Plaintiff's claims for breach of express/implied warrant, breach of contract, and
failure to obtain informed consent. Specifically, the Plaintiff opposes the Defendants’ Motion to
the extent it seeks dismissal of his informed consent claims, which the Plaintiff submits should be
presented and resolved by the jury.
As grounds, the Plaintiff states that the Defendants’ “Motion in Limine” seeking to dismiss
the Plaintiff's claims for informed consent, which have been pleaded since this action’s inception
over five years ago, is entirely improper. See, Commonwealth v. Vaidulas, 433 Mass, 247, 249-
250 (2001) (“the purpose ofa motion in limine is to prevent irrelevant, inadmissible, or prejudicial
matters from being admitted in evidence”). Plainly put, the Defendants’ Motion is nothing more
than a Rule 56 motion for summary judgment masquerading as a motion in limine filed on the eve
of trial. Notably, the deadline for Rule 56 motions expired on 6/21/20. Nonetheless, even if the
Defendants were permitted to serve their belated Rule 56 motion, (which they should not be), it
would still fail for the following reasons:
I INFORMED CONSENT
The informed consent doctrine in Massachusetts empowers patients to decide the course of
their own medical care. The SJC has recognized that in the area of medical decision-making, “it
is the prerogative of the patient, not the physician, to determine ... the direction in which ... his
interest lie[s].” Harnish v. Children’s Hospital Medical Center, 387 Mass. 152, 154 (1982) quoting
Cc ‘obbs v. Grant, 8 Cal. 3d 229, 242 104 Cal. Rptr. 505, 502 P.2d 1, (1972). However, patients
cannot make an intelligent decision regarding most medical subjects without first receiving from
the physician information significant to the decision, Harnish, 387 Mass. at 155. Accordingly,
the SJC has imposed upon health care providers a duty to disclose material information necessary
to allow patients to make an intelligent decision regarding treatment. Id., at 154-55.
A. Elements of Informed Consent
In order for a plaintiff to prevail on a claim for breach of informed consent, the healthcare
provider(s) must have a duty to disclose the information at issue to the patient and the breach of
that duty must be causally related to the patient’s injuries. Halley v. Birbiglia, 390 Mass. 540
(1983). Specifically, to establish a breach of the healthcare provider’s obligation to obtain the
patient’s informed consent, a plaintiff must establish (a) a sufficiently close healthcare provider-
patient relationship; (b) the information subject to disclosure must be that which the healthcare
provider knows or reasonably should know; (c) the information must be of such a nature that the
healthcare provider should reasonably recognize that it is material to the patients decision; and (d)
the healthcare provider must fail to disclose the subject information to the patient. Id.
A plaintiff must show what information a reasonable person would want to know in
deciding whether or not to submit to a course of treatment, or choose a different course of
treatment. Harnish, 387 Mass, at 152. A plaintiff must also show that had the proper information
been provided neither the patient nor a reasonable person in his position would have followed the
healthcare provider’s plan and would instead have opted for an alternative treatment plan.
Harnish, 387 Mass. at 158 citing Schroeder v. Lawrence, 372 Mass. 5 (1977); Wilkinson v. Vesey,
110 R.L. 628-629 (1972).
B. Disclosure
The information healthcare providers are required to disclose in Massachusetts includes
“all significant medical information that the [healthcare provider] possesses or reasonably should
possess that is material to an intelligent decision by the patient.” Harnish, 387 Mass. at 155
(emphasis supplied). This patient-focused standard requires the healthcare provider to make
substantial disclosure of information once the healthcare provider recognizes or should recognize
that the patient would considera given risk of the healthcare provider’s treatment plan significant
in deciding whether or not to consent to the plan. Id., at 156. In adopting this standard, the SJC,
in Harnish, rejected the “customary practice” standard for disclosure, which would only require
healthcare providers to disclose such information that is customarily disclosed by healthcare
provider in similar circumstances. Id. The SJC’s preference for the “materiality” standard outlined
in Harnish recognizes that medical care decisions have vastly different consequences for the
patient than for the healthcare provider. Indeed, the patient must live with the decision and its
consequences. The healthcare provider does not.'
C. Materiality
What information constitutes “material” information is a determination that lay persons are
qualified to make without the assistance of expert testimony. Harnish, 387 Mass, at 155. However,
the SJC has provided valuable guidance as to what “material information” includes, recognizing
that 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 likely result of no
treatment, and the available alternatives, including their risks and benefits, Id., citing Canterbury
y. Spence, 464 F.2d 772, 781-83 (D.C. Cir. 1972) cert. denied, 409 U.S. 1064 (1972). Where
healthcare providers fail to disclose existing and available options, the patient is deprived of any
meaningful participation in the health care decision making process. Ifa patient is not informed
that a reasonable alternative to the healthcare provider’s proposed treatment plan exists and is
available, the patient cannot be said to have given informed consent to the healthcare provider’s
proposed treatment plan. A healthcare provider has a duty to recognize a patient’s risk factors and
advise the patient as to the medical alternatives. See, Harrison v. United States of America, 284
F.3d 293 (2002).
| Asa matter of public policy, requiring broader disclosure allows the patient to direct his or her
own treatment, which is the philosophical goal of the informed consent doctrine. Requiring
broader disclosure is also the better-reasoned approach because it serves to reduce the resentment
and shock the patient experiences when the patient learns that a known adverse risk was present
and has come to pass without any consideration of how the patient would have responded had the
information been disclosed. After the resentment and shock subsides, the patient brings the
consequences of the physician’s decision home. The physician simply goes home without any
consequence. This is why the law gives the patient the final choice. See, Harnish, 387 Mass. at
154,
4
ARGUMENT
A. Roukounakis Does
Roukounakis Does Not support Dismissal
Not Support Dismissal of
of the
the Plaintiff's
Ekainult's Informed
informed Consent
—onsent
Claims
The Defense, relying heavily on Roukounakis v. Messer, 63 Mass. App. Ct. 482 (2005),
has suggested that it is impossible to proceed under both theories of negligence and informed
.- ”
consent. But Roukounakis holds that “the duty to disclose does not arise until the physician
becomes aware of the condition by diagnosing it.” 63 Mass. App. Ct. at 487. Here, it is undisputed
that Dr. Mahoney was absolutely aware that Ms. Robert’s 11/11/11 CT scan showed an adrenal
mass that required further, more specialized imaging. The Defendants’ reliance on Roukounakis
is simply misplaced. In Roukounakis, a defendant-radiologist was alleged to have misread a
mammogram, resulting in a delay in the diagnosis and treatment of the plaintiff's breast cancer.
Id. The Appeals Court held that a defendant cannot be found to have failed to obtain informed
consent from a patient when he had no direct interaction with the patient, and where he had no
reason to believe he had been negligent. Id. That is, since the defendant thought the film was
properly read, he had no duty to disclose to the patient the risks associated with an abnormal
finding. Id. The court declined to allow the informed consent claim because the same facts were
necessary to establish negligence and informed consent. Id., at 486.
The facts of this case are entirely different from those of Roukounakis. There, the
radiologist had no face-to-face interaction with the patient, unlike the case at bar, where Dr.
Mahoney was Ms. Robert’s primary care physician who was responsible for following,
monitoring, and treating Ms. Roberts in all aspects of her general, primary care, Radiologists do
not engage in informed consent discussions with a patient, unlike Dr. Mahoney, who directly
examined and treated Ms. Roberts for many years. Further, the claim that a radiologist misread a
film clearly sounds in negligence without evidence to support an informed consent claim. Here,
however, the evidence supports an informed consent claim. Specifically, Dr. Mahoney knew about
Ms. Robert’s adrenal mass, the differential of potential diagnoses including adrenal cancer, the
signs and symptoms of adrenal cancer, and the appropriate diagnostic modalities and treatment
options available to her. The Plaintiff will be able to show that this information would have been
material to Ms. Robert’s decision on how to proceed, that she would have elected to have follow-
up imaging as recommended by the radiologists, but that, unfortunately, she ultimately suffered a
significant delay in her diagnosis and treatment because none of this information was conveyed to
Ms. Roberts as the patient.
B. The Facts Supporting Negligence Are Distinct From Those Supporting The
Informed Consent Claims
The facts necessary for failure to inform and the facts necessary for negligence are quite
different in this case. In this case, the negligence requires a showing that the Defendants failed to
properly treat Ms. Roberts, That is, to sustain his negligence claims, the Plaintiff will show that
Dr. Mahoney: (1) failed to communicate with Dr. Anderegg regarding which provider would
inform Ms. Roberts of a significant finding on an imaging study and order and obtain the
recommended dedicated adrenal CT scan or MRI to further evaluate Ms. Roberts’ right adrenal
gland mass; (2) falsely assumed that another provider, namely Dr. Anderegg, would inform Ms.
Roberts of the finding on an imaging study and order and obtain appropriate follow-up imaging
studies; (3) failed to appreciate that the radiologist’s recommended dedicated adrenal CT scan or
MRI to further evaluate Ms. Roberts’ right adrenal gland mass had not been obtained; (4) failed to
order and obtain the recommended dedicated adrenal CT scan or MRI; and (5) failed to recognize
and appreciate that Ms. Roberts’ adrenal gland tumor significantly increased in size since 2006
requiring further work up and evaluation, and referral to a specialist.
The informed consent claim requires showing that there was no discussion between the
Defendants and Ms. Roberts regarding the material risks and benefits prior to the Defendants’
proposed course of treatment. That is, to sustain his informed consent claims, the Plaintiff will
show that Dr. Mahoney failed to inform Ms. Roberts of the significant finding on an imaging study
or that radiology had recommended a dedicated adrenal CT scan or MRI. Accordingly, because
the facts surrounding the informed consent claim are distinguishable from the facts necessary to
support the negligence claim, the Plaintiff should be allowed to proceed with his claim of informed
consent.
Il. CONCLUSION
Wherefore, the Plaintiff respectfully requests that this Honorable Court deny the Motion in
Limine of Defendants, Sharon Mahoney, M.D., Tristan Medical P.C. and G. Curtis Barry, M.D.,
P.C., to preclude/dismiss Plaintiff's claims for breach of express/implied warrant, breach of
contract, and failure to obtain informed consent, and allow the Plaintiff to submit his informed
consent claims to the jury.
Respectfully submitted,
The Plaintiff,
By his attorneys,
4s/ Adam R. Satin
Adam R. Satin, BBO# 633069
Lynn I. Hu, BBO# 690823
Lubin & Meyer, P.C.
100 City Hall Plaza
Boston, MA 02108
(617) 720-4447
asatin@lubinandmeyer.com
Ihu@lubinandmeyer.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.LD., CAPE COD HOSPITAL, TRISTAN MEDICAL P.C., G. CURTIS BARRY, M.D., P.C., AND CAPE OBSTETRICS & GYNECOLOGY, P.C., Defendants, PLAINTIFF’S LIMITED OPPOSITION TO SIXTH MOTION IN LIMINE OF THE DEFENDANTS, SHARON MAHONEY, M.D., TRISTAN MEDICAL P.C., AND G. CURTIS BARRY, M.D., P.C., TO PRECLUDE/DISMISS PLAINTIFF’S CLAIMS FOR BREACH OF EXPRESS/IMPLIED WARRANTY, BREACH OF CONTRACT AND FAILURE TO OBTAIN INFORMED CONSENT. Now comes the Plaintiff and submits his limited opposition to the Motion in Limine of Defendants, Sharon Mahoney, M.D., Tristan Medical P.C. and G. Curtis Barry, M.D., P.C., to preclude/dismiss Plaintiff's claims for breach of express/implied warrant, breach of contract, and failure to obtain informed consent. Specifically, the Plaintiff opposes the Defendants’ Motion to the extent it seeks dismissal of his informed consent claims, which the Plaintiff submits should be presented and resolved by the jury. As grounds, the Plaintiff states that the Defendants’ “Motion in Limine” seeking to dismiss the Plaintiff's claims for informed consent, which have been pleaded since this action’s inception over five years ago, is entirely improper. See, Commonwealth v. Vaidulas, 433 Mass, 247, 249- 250 (2001) (“the purpose ofa motion in limine is to prevent irrelevant, inadmissible, or prejudicial matters from being admitted in evidence”). Plainly put, the Defendants’ Motion is nothing more than a Rule 56 motion for summary judgment masquerading as a motion in limine filed on the eve of trial. Notably, the deadline for Rule 56 motions expired on 6/21/20. Nonetheless, even if the Defendants were permitted to serve their belated Rule 56 motion, (which they should not be), it would still fail for the following reasons: I INFORMED CONSENT The informed consent doctrine in Massachusetts empowers patients to decide the course of their own medical care. The SJC has recognized that in the area of medical decision-making, “it is the prerogative of the patient, not the physician, to determine ... the direction in which ... his interest lie[s].” Harnish v. Children’s Hospital Medical Center, 387 Mass. 152, 154 (1982) quoting Cc ‘obbs v. Grant, 8 Cal. 3d 229, 242 104 Cal. Rptr. 505, 502 P.2d 1, (1972). However, patients cannot make an intelligent decision regarding most medical subjects without first receiving from the physician information significant to the decision, Harnish, 387 Mass. at 155. Accordingly, the SJC has imposed upon health care providers a duty to disclose material information necessary to allow patients to make an intelligent decision regarding treatment. Id., at 154-55. A. Elements of Informed Consent In order for a plaintiff to prevail on a claim for breach of informed consent, the healthcare provider(s) must have a duty to disclose the information at issue to the patient and the breach of that duty must be causally related to the patient’s injuries. Halley v. Birbiglia, 390 Mass. 540 (1983). Specifically, to establish a breach of the healthcare provider’s obligation to obtain the patient’s informed consent, a plaintiff must establish (a) a sufficiently close healthcare provider- patient relationship; (b) the information subject to disclosure must be that which the healthcare provider knows or reasonably should know; (c) the information must be of such a nature that the healthcare provider should reasonably recognize that it is material to the patients decision; and (d) the healthcare provider must fail to disclose the subject information to the patient. Id. A plaintiff must show what information a reasonable person would want to know in deciding whether or not to submit to a course of treatment, or choose a different course of treatment. Harnish, 387 Mass, at 152. A plaintiff must also show that had the proper information been provided neither the patient nor a reasonable person in his position would have followed the healthcare provider’s plan and would instead have opted for an alternative treatment plan. Harnish, 387 Mass. at 158 citing Schroeder v. Lawrence, 372 Mass. 5 (1977); Wilkinson v. Vesey, 110 R.L. 628-629 (1972). B. Disclosure The information healthcare providers are required to disclose in Massachusetts includes “all significant medical information that the [healthcare provider] possesses or reasonably should possess that is material to an intelligent decision by the patient.” Harnish, 387 Mass. at 155 (emphasis supplied). This patient-focused standard requires the healthcare provider to make substantial disclosure of information once the healthcare provider recognizes or should recognize that the patient would considera given risk of the healthcare provider’s treatment plan significant in deciding whether or not to consent to the plan. Id., at 156. In adopting this standard, the SJC, in Harnish, rejected the “customary practice” standard for disclosure, which would only require healthcare providers to disclose such information that is customarily disclosed by healthcare provider in similar circumstances. Id. The SJC’s preference for the “materiality” standard outlined in Harnish recognizes that medical care decisions have vastly different consequences for the patient than for the healthcare provider. Indeed, the patient must live with the decision and its consequences. The healthcare provider does not.' C. Materiality What information constitutes “material” information is a determination that lay persons are qualified to make without the assistance of expert testimony. Harnish, 387 Mass, at 155. However, the SJC has provided valuable guidance as to what “material information” includes, recognizing that 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 likely result of no treatment, and the available alternatives, including their risks and benefits, Id., citing Canterbury y. Spence, 464 F.2d 772, 781-83 (D.C. Cir. 1972) cert. denied, 409 U.S. 1064 (1972). Where healthcare providers fail to disclose existing and available options, the patient is deprived of any meaningful participation in the health care decision making process. Ifa patient is not informed that a reasonable alternative to the healthcare provider’s proposed treatment plan exists and is available, the patient cannot be said to have given informed consent to the healthcare provider’s proposed treatment plan. A healthcare provider has a duty to recognize a patient’s risk factors and advise the patient as to the medical alternatives. See, Harrison v. United States of America, 284 F.3d 293 (2002). | Asa matter of public policy, requiring broader disclosure allows the patient to direct his or her own treatment, which is the philosophical goal of the informed consent doctrine. Requiring broader disclosure is also the better-reasoned approach because it serves to reduce the resentment and shock the patient experiences when the patient learns that a known adverse risk was present and has come to pass without any consideration of how the patient would have responded had the information been disclosed. After the resentment and shock subsides, the patient brings the consequences of the physician’s decision home. The physician simply goes home without any consequence. This is why the law gives the patient the final choice. See, Harnish, 387 Mass. at 154, 4 ARGUMENT A. Roukounakis Does Roukounakis Does Not support Dismissal Not Support Dismissal of of the the Plaintiff's Ekainult's Informed informed Consent —onsent Claims The Defense, relying heavily on Roukounakis v. Messer, 63 Mass. App. Ct. 482 (2005), has suggested that it is impossible to proceed under both theories of negligence and informed .- ” consent. But Roukounakis holds that “the duty to disclose does not arise until the physician becomes aware of the condition by diagnosing it.” 63 Mass. App. Ct. at 487. Here, it is undisputed that Dr. Mahoney was absolutely aware that Ms. Robert’s 11/11/11 CT scan showed an adrenal mass that required further, more specialized imaging. The Defendants’ reliance on Roukounakis is simply misplaced. In Roukounakis, a defendant-radiologist was alleged to have misread a mammogram, resulting in a delay in the diagnosis and treatment of the plaintiff's breast cancer. Id. The Appeals Court held that a defendant cannot be found to have failed to obtain informed consent from a patient when he had no direct interaction with the patient, and where he had no reason to believe he had been negligent. Id. That is, since the defendant thought the film was properly read, he had no duty to disclose to the patient the risks associated with an abnormal finding. Id. The court declined to allow the informed consent claim because the same facts were necessary to establish negligence and informed consent. Id., at 486. The facts of this case are entirely different from those of Roukounakis. There, the radiologist had no face-to-face interaction with the patient, unlike the case at bar, where Dr. Mahoney was Ms. Robert’s primary care physician who was responsible for following, monitoring, and treating Ms. Roberts in all aspects of her general, primary care, Radiologists do not engage in informed consent discussions with a patient, unlike Dr. Mahoney, who directly examined and treated Ms. Roberts for many years. Further, the claim that a radiologist misread a film clearly sounds in negligence without evidence to support an informed consent claim. Here, however, the evidence supports an informed consent claim. Specifically, Dr. Mahoney knew about Ms. Robert’s adrenal mass, the differential of potential diagnoses including adrenal cancer, the signs and symptoms of adrenal cancer, and the appropriate diagnostic modalities and treatment options available to her. The Plaintiff will be able to show that this information would have been material to Ms. Robert’s decision on how to proceed, that she would have elected to have follow- up imaging as recommended by the radiologists, but that, unfortunately, she ultimately suffered a significant delay in her diagnosis and treatment because none of this information was conveyed to Ms. Roberts as the patient. B. The Facts Supporting Negligence Are Distinct From Those Supporting The Informed Consent Claims The facts necessary for failure to inform and the facts necessary for negligence are quite different in this case. In this case, the negligence requires a showing that the Defendants failed to properly treat Ms. Roberts, That is, to sustain his negligence claims, the Plaintiff will show that Dr. Mahoney: (1) failed to communicate with Dr. Anderegg regarding which provider would inform Ms. Roberts of a significant finding on an imaging study and order and obtain the recommended dedicated adrenal CT scan or MRI to further evaluate Ms. Roberts’ right adrenal gland mass; (2) falsely assumed that another provider, namely Dr. Anderegg, would inform Ms. Roberts of the finding on an imaging study and order and obtain appropriate follow-up imaging studies; (3) failed to appreciate that the radiologist’s recommended dedicated adrenal CT scan or MRI to further evaluate Ms. Roberts’ right adrenal gland mass had not been obtained; (4) failed to order and obtain the recommended dedicated adrenal CT scan or MRI; and (5) failed to recognize and appreciate that Ms. Roberts’ adrenal gland tumor significantly increased in size since 2006 requiring further work up and evaluation, and referral to a specialist. The informed consent claim requires showing that there was no discussion between the Defendants and Ms. Roberts regarding the material risks and benefits prior to the Defendants’ proposed course of treatment. That is, to sustain his informed consent claims, the Plaintiff will show that Dr. Mahoney failed to inform Ms. Roberts of the significant finding on an imaging study or that radiology had recommended a dedicated adrenal CT scan or MRI. Accordingly, because the facts surrounding the informed consent claim are distinguishable from the facts necessary to support the negligence claim, the Plaintiff should be allowed to proceed with his claim of informed consent. Il. CONCLUSION Wherefore, the Plaintiff respectfully requests that this Honorable Court deny the Motion in Limine of Defendants, Sharon Mahoney, M.D., Tristan Medical P.C. and G. Curtis Barry, M.D., P.C., to preclude/dismiss Plaintiff's claims for breach of express/implied warrant, breach of contract, and failure to obtain informed consent, and allow the Plaintiff to submit his informed consent claims to the jury. Respectfully submitted, The Plaintiff, By his attorneys, 4s/ Adam R. Satin Adam R. Satin, BBO# 633069 Lynn I. Hu, BBO# 690823 Lubin & Meyer, P.C. 100 City Hall Plaza Boston, MA 02108 (617) 720-4447 asatin@lubinandmeyer.com Ihu@lubinandmeyer.com