 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Benson v. Massachusetts General Hospital6/30/2000
Suffolk.
February 23, 2000.
Practice, Civil, Summary judgment. Medical Malpractice, Consent to medical treatment.
Civil action commenced in the Superior Court Department on July 3, 1995.
The case was heard by Peter M. Lauriat, J., on a motion for summary judgment.
The plaintiff, Walter Benson, appeals from an order of the Superior Court allowing the motion of the defendant, Massachusetts General Hospital (MGH), for summary judgment in a medical malpractice action. The alleged malpractice stemmed from exploratory surgery conducted at MGH on July 5, 1992. The summary judgment record reveals that Benson sought treatment for stomach pains at the MGH emergency room on July 4, 1992. X-rays taken on that and the following day indicated a small bowel obstruction. On July 5, 1992, two MGH doctors conducted an exploratory laparotomy surgery but found no bowel obstruction, and Benson's abdominal pain subsequently resolved. Two consent forms appear in the record, each stating that the physician had explained the nature, benefits and risks of the procedure to be undergone and of alternative approaches. Each form bears Benson's signature next to the words "Dr. [ ] has explained the above to me and I consent to the procedure."
In his complaint, Benson alleged that MGH was negligent in treating him and that it failed to seek or obtain his informed consent, thereby causing him to undergo needless surgery. Pursuant to G.L. c. 231, Sect. 60B, a medical malpractice tribunal was convened on Benson's complaint, but he neither appeared nor submitted an offer of proof at the appointed hearing date. The tribunal thereafter found for the defendant, and Benson maintained his action by posting a bond.
The plaintiff argued both below and on appeal that no one at MGH made any disclosures to him whatsoever regarding the need for, or the risks of, treatment. Following completion of discovery, MGH moved for summary judgment on both the negligence and the lack of informed consent counts. The motion judge allowed MGH's motion as to both counts. Benson appeals only from the ruling on his lack of informed consent claim.
MGH's summary judgment papers stressed the explanatory consent forms bearing Benson's signatures (which he acknowledged were his); the fact that Benson's interrogatory answers and deposition testimony averred only to his having no memory of being given any information or of signing anything; and his failure to proffer any expert or even anticipated expert evidence with respect to the nature of the risks and benefits that a health care institution would have been expected to provide in the circumstances. See Harnish v. Children's Hosp. Med. Center, 387 Mass. 152, 155-158 (1982). In the face of this apparent demonstration that there was no evidence to support Benson's claim of failure of disclosure and absence of informed consent, it became Benson's burden, pursuant to Mass.R.Civ.P. 56(e), 365 Mass. 825 (1974), to "designate 'specific facts showing that there is a genuine issue for trial.'" Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714 (1991), quoting from Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). See Marenghi v. Mobil Oil Corp., 416 Mass. 643, 646-647 (1993).
Benson did not do so, however, but merely asserted (in his memorandum in opposition to the defendant's motion for summary judgment, but not in any affidavit) that MGH never told him anything, but rather precipitately put him under the knife without obtaining his informed consent. Such "bare assertions and conclusions regarding . . . understandings, beliefs, and assumptions are not enough to withstand a well-pleaded motion for summary jud
Page 1 2 Massachusetts Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|