## Facts

- In 1951, Winifred Wilkinson (age 33) was hospitalized after a chest x-ray showed a “shadow.”
- Hospital radiologists Dr. John M. Vesey and Dr. Russel R. Hunt interpreted imaging as suggesting “probably a lymphoma of the mediastinum or possibly a substernal thyroid.”
- Without obtaining a biopsy, defendants initiated and continued radiation therapy in three courses from August 1951 to January 1952 to areas of Wilkinson’s chest and back.
- Evidence at trial indicated biopsy was a recognized diagnostic procedure in 1951 for conclusive proof of malignancy, and defendants testified they would recommend radiation only if convinced the patient had cancer.
- Records and testimony raised a question whether radiation fields overlapped and whether Wilkinson received a double exposure; defendants disputed that characterization.
- By 1955 Wilkinson developed serious skin and tissue deterioration in the treated areas; she was told the condition was attributable to the radiation treatments, and later was told she never had cancer.
- Wilkinson sued alleging negligent diagnosis, negligent selection and administration of radiation, and failure to disclose material risks (lack of informed consent); her husband sought consequential damages.
- After plaintiffs rested at trial, the court denied motions to amend the complaints to add battery and res ipsa loquitur counts and granted defendants’ motion for a directed verdict.

## Issues

1. Whether plaintiffs presented sufficient evidence of negligent diagnosis and negligent administration of radiation therapy to require submission to a jury rather than a directed verdict.
2. Whether failure to disclose material risks of treatment states a claim in negligence or battery, and what proof is required to submit the informed-consent claim to the jury.
3. Whether the trial court abused its discretion in denying leave to amend to add (a) a battery count and (b) a res ipsa loquitur count.
4. Whether res ipsa loquitur is available in medical malpractice without requiring an “innocuous instrumentality,” and whether the evidence supported that theory.

## Decision

- Directed verdicts for defendants were reversed; the evidence permitted a reasonable jury to find negligence in diagnosis, treatment, and informed consent.
- Denial of leave to amend to add a battery count was affirmed; nondisclosure of risks in an otherwise consensual procedure sounds in negligence, not battery.
- Denial of leave to amend to add a res ipsa loquitur count was reversed; the evidence could support an inference that the injuries would not ordinarily occur absent negligence.
- The case was remanded for a new trial.

## Legal Principles

- A physician’s failure to disclose material risks of proposed treatment is analyzed as negligence (breach of a duty of reasonable disclosure), not as battery, when the patient consented to the procedure itself.
- Materiality of risk is assessed by whether a reasonable person in the patient’s position would consider the risk significant in deciding whether to undergo the treatment.
- Expert testimony may be necessary to explain medical risks and professional practices, but the jury may evaluate what disclosures were actually made and whether they were understandable and adequate without expert proof on nondisclosure.
- Informed-consent causation may be supported by evidence that the patient would have declined the treatment if properly informed.
- Res ipsa loquitur may apply in medical malpractice without a categorical “innocuous instrumentality” requirement when the evidence permits a finding that the type of injury ordinarily does not occur with due care and other causes are sufficiently excluded.
- Leave to amend pleadings should be freely granted when justice so requires; denial is improper where the amendment is supported by the evidence and does not unfairly prejudice the opposing party.

## Conclusion

The court required a jury trial on negligence and informed-consent claims arising from radiation therapy allegedly given without adequate diagnostic confirmation and without material risk disclosure, rejected reframing nondisclosure as battery, and permitted plaintiffs to pursue res ipsa loquitur based on evidence that the injuries were not expected if the therapy was properly administered.


Wilkinson v. Vesey, 295 A.2d 676 (R.I. 1972)