Harnish v. Children's Hospital Medical Center
387 Mass. 152, 439 N.E.2d 240 (1982)
Harnish went to Children's Hospital to get a tumor in her
neck removed. During the operation, the doctor's severed a nerve
resulting in Harnish losing the use of her tongue. She sued for medical
Harnish argued that the operation was cosmetic in
nature. The doctors did not inform her of the risk of tongue loss. She
claimed that if she had known the risks, she would not have consented to
Risk of tongue loss was foreseeable risk in this
sort of operation.
There was no evidence of negligence in how the
operation was performed.
The Trial Court found for Children's Hospital in a non-juty trial. Harnish appealed.
The Appellate Court partially reversed and remanded for a jury trial.
The Appellate Court found that a doctor owes to the
patient the duty to disclose in a reasonable manner all significant
medical information that the doctor possesses or reasonably should
possess that is material to an intelligent decision by the patient
whether to undergo a proposed procedure.
The Court recognized that it is difficult to
explain complicated medical information to uneducated patients, and that
there are an almost unlimited number of possible risks. So the
patient's right to know must be balanced with the burden on the doctor.
Up until this point, the general rule was that the doctor
must disclose only such information as was customarily disclosed in
similar circumstances. But this Court felt that was an inadequate
The Court dismissed the charges for an
assistant and the hospital, because they had no duty to explain the
risk. The case against the doctors was remanded for trial.
Harnish would have to show at trial that, had proper
information been provided, a reasonable person would not have
consented to the operation. That's a question for a jury to decide, not
a medical tribunal.