 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Benson v. Massachusetts General Hospital6/30/2000
gment." Polaroid Corp. v. Rollins Environmental Services (NJ), Inc., 416 Mass. 684, 696 (1993). Benson's unsubstantiated averments constituted "mere assertions of disputed facts," LaLonde v. Eissner, 405 Mass. 207, 209 (1989), invited a decision by the trier of fact resting on speculation, and did not represent a basis on which "a fair minded jury could return a verdict for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Assessed in its totality, the summary judgment record "demonstrate that there no reasonable expectation," Tate v. Department of Mental Health, 419 Mass. 356, 360 (1995), that Benson could prove the essential elements of his lack of informed consent claim at trial. Compare Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991).
According Benson the indulgence due the opponent of a summary judgment motion, by construing the evidence in his favor, see Lalonde v. Eissner, 405 Mass. at 209; Correllas v. Viveiros, 410 Mass. 314, 316-317 (1991), we could draw from his complaint and deposition testimony the inchoate contention that he was not informed of the option of doing nothing, i.e., "the likely result of no treatment," which can constitute material information that must be revealed by a physician to a patient, see Harnish v. Children's Hosp. Med. Center, 387 Mass. at 156; Feeley v. Baer, 424 Mass. 875, 877 n.3 (1997), but which was not explicitly mentioned in the consent forms relied on by MGH. Even under that view of the matter, however, Benson could not successfully resist summary judgment.
In order to succeed as to that form of breach of the duty of disclosure, Benson would have to establish that " he risk [attending no treatment was] . . . a more than negligible risk of [particular adverse problems] that will have serious consequences," Feeley v. Baer, 424 Mass. at 877; and that the risk information associated with the no treatment option which should reasonably have been disclosed was "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. Additionally, Benson had the ultimate obligation of showing that had such an option and its associated risks been provided, "neither he nor a reasonable person in similar circumstances would have undergone the procedure." Id. at 158. Benson's deficient response to MGH's summary judgment motion failed even to allude to (much less provide) any evidence or anticipated evidence discharging his burden with respect to any of these issues. See Precourt v. Frederick, 395 Mass. 689, 696 (1985); Feeley v. Baer, 424 Mass. at 877-878. Benson would have been unable, accordingly, to survive MGH's motion on the basis of its supposed failure to have disclosed a "no-treatment option," even had he explicitly asserted such a theory.
Judgment affirmed.
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.
|
|