## Facts

- Janine Harnish underwent elective neck surgery at a hospital to remove a tumor that she alleged was undertaken primarily for cosmetic reasons.
- During surgery, a physician severed her hypoglossal nerve, resulting in a permanent and near-total loss of tongue function.
- Harnish alleged the loss of tongue function was a material, foreseeable risk of the procedure.
- She claimed the defendants failed to disclose (or misrepresented) this risk and that she would not have consented if properly informed.
- The case was submitted to a medical malpractice tribunal under Mass. Gen. Laws ch. 231, § 60B.
- The tribunal found Harnish’s offer of proof insufficient to raise a legitimate question of liability, triggering the statutory bond requirement to continue the action.
- Harnish did not post the bond; the Superior Court dismissed the action.
- The Supreme Judicial Court granted direct appellate review of the tribunal ruling and the ensuing dismissal.

## Issues

1. What disclosure duty does a physician owe to enable a patient’s informed consent, and what makes an undisclosed risk “material”?
2. In an informed-consent malpractice claim, which elements are “medical questions” within the scope of the § 60B tribunal’s screening function?
3. Whether Harnish’s offer of proof was sufficient to permit the action to proceed against some or all defendants notwithstanding the tribunal’s finding.

## Decision

- The court adopted a patient-centered materiality standard: a physician must disclose, in a reasonable manner, all significant medical information the physician possesses or reasonably should possess that is material to the patient’s decision to consent or refuse.
- The court held that failure to make required disclosure constitutes professional misconduct within the scope of § 60B.
- The court limited the tribunal’s inquiry in informed-consent cases to medical questions, including whether the undisclosed risk is a recognized risk and whether it in fact materialized; it excluded from tribunal review the nonmedical question whether the patient (or a reasonable person in similar circumstances) would have declined the procedure if informed.
- Applying these standards, the court held the offer of proof sufficient as to two physician defendants directly connected to the alleged nondisclosure, but insufficient as to the hospital and another physician.
- The dismissal was reversed in part and affirmed in part, allowing the case to proceed against two physicians only.

## Legal Principles

- A physician must disclose all significant medical information that is material to a patient’s informed decision to undergo or refuse a procedure.
- Materiality is measured by the significance a reasonable person, in what the physician knows or should know is the patient’s position, would attach to the risk when deciding whether to proceed.
- Appropriate disclosure may include the patient’s condition; the nature and probability of risks; expected benefits; uncertainty of outcomes; irreversibility; likely result of no treatment; and reasonable alternatives with their risks and benefits.
- Failure to obtain informed consent is treated as professional misconduct actionable as medical malpractice.
- In § 60B screening of informed-consent claims, the tribunal may evaluate medical components (e.g., whether the risk is recognized and whether it occurred) but may not decide the nonmedical causation-in-decision element (whether adequate disclosure would have led to refusal), which is for the factfinder at trial.

## Conclusion

The court held that Massachusetts informed-consent law requires disclosure of medically significant information material to a reasonable patient’s decision, treated nondisclosure as malpractice within § 60B, confined tribunal review to medical questions, and permitted Harnish’s claim to proceed against two physicians while barring it against the hospital and another doctor for lack of adequate proof at the tribunal stage.


Harnish v. Child.'s Hosp. Med. Ctr., 387 Mass. 152, 439 N.E.2d 240 (1982)