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Roukounakis v. Messer5/9/2005
Plymouth.
March 7, 2005.
Negligence, Doctor. Doctor, Duty to disclose risk.
Civil action commenced in the Superior Court Department on July 10, 1996. The case was tried before Raymond J. Brassard, J.
The plaintiff, Laila Roukounakis, had a routine mammogram in February, 1993, and was told, after additional x-ray films were taken, that the mammogram was normal. About ten months later, in December, 1993, she began feeling fatigued and felt a nagging sensation in her left breast. She developed a tender area in her left breast in February, 1994, and consulted her primary care physician, who arranged for another mammogram. The mammogram revealed a suspicious mass; an ultrasound was performed. A subsequent surgical biopsy showed a mass of four to five centimeters. The plaintiff underwent a mastectomy; four lymph nodes proved to be cancerous and she was treated with chemotherapy.
At some point during her treatment, she obtained the films from the 1993 mammogram and discovered that the report noted a "questionable nodular area" in her left breast. This action followed, the plaintiff alleging, among other claims, that Dr. Ronald Messer, the radiologist who had read her films in 1993, had been negligent in failing to diagnose her cancer and had also failed to obtain her informed consent, that is, he had not disclosed to her all significant medical information material for her to make an intelligent decision. See Harnish v. Children's Hosp. Med. Center, 387 Mass. 152, 156 (1982). After a trial, the jury found him not to have been negligent and judgment entered for the defendants.
The focus of this appeal is the judge's refusal to charge on informed consent. We affirm.
At trial, a medical oncologist called by the plaintiff testified that a biopsy in 1993 would have shown cancer, and had the cancer been diagnosed, the plaintiff would have had a markedly improved chance for survival and cure with no lymph node involvement. Another expert for the plaintiff, a radiologist, testified that the area noted to be questionable in the 1993 mammogram required further investigation. In his view, the 1993 film showed an abnormal area which was cancerous until proven otherwise and required further workup.
He also discussed the information he considered a patient should receive: "When you find an abnormality in the breast that you cannot exclude carcinoma as being the cause of the abnormality, then you're obligated to tell the patient that." On cross-examination, however, he stated that if a radiologist did not believe there was anything suspicious, there was no reason for an ultrasound or biopsy. He also agreed that if the radiologist concludes that there is no evidence of malignancy, he would expect the report to so state.
The defendant testified that it is commonplace to see things on one view of a mammogram and that five or six times a day he orders additional films. When he circled the area on the MLO (median lateral oblique) view of the 1993 mammogram, he did not think the area was suspicious for cancer, but thought it was more likely a compression artifact. After he ordered a spot compression film, the area on the film "thinned out." This meant that the questionable nodular area was a compression artifact with "no clinical significance," and that, in the defendant's view, "nothing there."
At the charge conference, the trial judge, relying on Precourt v. Frederick, 395 Mass. 689 (1985), ruled that an informed consent claim had not been made out and refused the plaintiff's request to give an instruction regarding that issue. Had the defendant acknowledged that there was some doubt about the mammogram
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