Sunday, November 10, 2013

Harnish v. Children’s Hospital Medical Center case brief

Harnish v. Children’s Hospital Medical Center case brief summary
439 N.E.2d 240 (1982)

Plaintiff patient sought review of the decision of the Superior Court Department (Massachusetts), which after consideration of the case by a medical malpractice tribunal, granted the patient's action against defendants, a hospital, surgeons, and assistants, for failure to warn the patient of the risks associated with the patient's surgery.

The patient underwent an operation to remove a tumor in her neck. During the procedure, her nerve was severed, resulting in a permanent loss of tongue function. The patient's complaint charged the surgeons, the assistants, and the hospital with negligence in failing to inform her of the risk of loss of tongue function. A medical malpractice tribunal, convened pursuant to Mass. Gen. Laws ch. 231, § 60B, concluded that the plaintiff's offer of proof was insufficient to raise a question appropriate for judicial inquiry. The action was dismissed after the patient failed to post a bond in accordance with § 60B.

  • The court reversed with regard to the surgeons, but affirmed the dismissal with regard to the assistants and the hospital. 
  • The court held that the surgeon's failure to divulge in a reasonable manner to a competent adult patient sufficient information to enable the patient to make an informed judgment whether to give or withhold consent to a medical or surgical procedure constituted professional misconduct under § 60B. 
  • However, it would not be reasonable to require all of the individuals who only assist in the operating room to obtain the informed consent of the patient.


The court reversed the dismissal of the patient's complaint against the surgeons, but affirmed the dismissal of the patient's complaint against the hospital and the assistants.

Suggested Study Aids For Tort Law

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