Massachusetts Supreme Judicial / Appeals Courts

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PRECOURT v. FREDERICK, 395 Mass. 689 (1985)
481 N.E.2d 1144
WILFRED E. PRECOURT & another[fn1] vs. ALBERT R. FREDERICK, JR.
Supreme Judicial Court of Massachusetts.
Suffolk.
January 10, 1985.
August 19, 1985.

[fn1] Elizabeth A. Precourt.

Present: HENNESSEY, C.J., WILKINS, LIACOS, NOLAN, & O'CONNOR, JJ.

Negligence, Medical malpractice, Proximate cause. Doctor,
Duty to disclose risk. Medical Malpractice, Consent to
medical treatment. Practice, Civil, Judgment notwithstanding
verdict.

On claims by a patient and his wife alleging that the defendant,
an ophthalmic surgeon, knew or should have known of the risk
of aseptic necrosis of the hips attendant upon the use of a
certain drug, Prednisone; that the patient developed this
condition after the defendant prescribed the drug for him to
control inflammation following each of two successive eye
operations; and that the physician, in violation of his duty
to the patient, prescribed the drug without informing the
patient of the risks of taking it, the evidence was
insufficient to warrant the jury's finding that the defendant
violated his duty of disclosure, where it did not permit the
inference that the defendant knew or reasonably should have
known that the probability that this particular risk would
materialize was other than negligible. [694-697] LIACOS, J.,
concurring, would hold that the evidence, although presenting
a question for the jury on the issue of the defendant's duty
of disclosure, was legally insufficient on the issue of
causation. [697-703]

CIVIL ACTION commenced in the Superior Court Department on
April 4, 1980.

The case was tried before Herbert F. Travers, Jr., J.

The Supreme Judicial Court on its own initiative transferred
the case from the Appeals Court.

Edward B. Hanify (Thomas H. Hannigan, Jr., with him) for
the defendant.

William E. Searson, III (John F. Sheehan & James P.
McCarthy with him) for the plaintiffs.
Page 690

Kenneth Laurence, Ira S. Yanowitz, & James R. Pingeon, for
Massachusetts Medical Society & others, amici curiae, submitted a
brief.

O'CONNOR, J.

In Harnish v. Children's Hosp. Medical Center,
387 Mass. 152, 155 (1982), we said that "a physician owes to his patient
the duty to disclose in a reasonable manner all significant
medical information that the physician possesses or reasonably
should possess that is material to an intelligent decision by the
patient whether to undergo a proposed procedure." We defined
"materiality" as "the significance a reasonable person, in what
the physician knows or should know is his patient's position,
would attach to the disclosed risk or risks in deciding whether
to submit or not to submit to surgery or treatment." Id. at
156, quoting from Wilkinson v. Vesey, 110 R.I. 606, 627
(1972). In this case, we consider whether the evidence presented
at trial, viewed most favorably to the plaintiffs, was legally
sufficient to warrant a finding that the defendant physician
violated that duty. More precisely, the question is whether the
jury properly could have found that the physician failed to
disclose to the patient medical information that the physician
reasonably should have recognized as material to the patient's
decision whether to undergo surgery. See Harnish, supra at
155-156.[fn2]

The plaintiffs commenced this action in April, 1980, alleging
that the defendant, Albert R. Frederick, Jr., a physician,
negligently prescribed for the plaintiff Wilfred Precourt a drug
called Prednisone, and that, as a result, Precourt developed
severe damage to the bones of both his hips. Precourt sought
damages for his personal injuries, and his wife, Elizabeth,
sought damages for her loss of consortium. After our decision in
Harnish, supra, the plaintiffs amended their complaint to
allege, in addition to negligence, that, although Frederick knew
or reasonably should have known that the use of Prednisone
presented a risk of the type of hip damage that Precourt
sustained,
Page 691
Frederick nevertheless prescribed Prednisone for Precourt without
informing him of that risk.[fn3] The trial judge denied
Frederick's motions for directed verdicts, but the jury found for
Frederick on the counts alleging negligence. The jury found for
Precourt on his lack of informed consent claim, and they awarded
Precourt $800,000 and Elizabeth $200,000. Frederick moved for
judgment notwithstanding the verdicts or for a new trial. The
judge denied Frederick's motion, although he conditioned his
denial of a new trial of Elizabeth's claim on her remitting
$100,000, which she thereafter did. Frederick appealed from the
judgments for the plaintiffs and from the denial of his motion
for judgment notwithstanding the verdict, and we transferred the
case to this court on our own motion. Frederick challenges the
denial of his motions and he challenges various aspects of the
judge's charge to the jury as well. We do not reach the latter
challenges because we hold that the evidence was legally
insufficient to warrant submission of the case to the jury. We
reverse the judgments for the plaintiffs.

We summarize the evidence. In doing so, we follow the familiar
rule that, "in reviewing the denial of the defendant's motions
for directed verdict and judgment notwithstanding the verdict, we
will construe the evidence most favorably to the plaintiff and
disregard that favorable to the defendant." Cimino v. Milford
Keg, Inc., 385 Mass. 323, 326 (1982). In April, 1976, while
Precourt was repairing a truck in his yard, some metal flew into
his left eye and became embedded there. A physician removed a
silver from just beneath the eye's surface, but Precourt's eye
failed to improve. By August, 1976, the eye was almost legally
blind and was sensitive to light. The physician discovered a
piece of metal lodged in the back of Precourt's eye, and he
referred Precourt to Frederick, an ophthalmic
Page 692
surgeon practicing at the Massachusetts Eye and Ear Infirmary.
Frederick specialized in surgery involving the backs of human
eyes. After examining Precourt's eye, Frederick advised him to
undergo surgery to remove the metal. The proposed surgery had a
ninety per cent probability of restoring vision to the eye.

In September, 1976, Precourt was admitted to the Massachusetts
Eye and Ear Infirmary, and Frederick surgically removed the piece
of metal from the retina of Precourt's eye. After surgery,
Frederick placed Precourt on a course of treatment with the drug
Prednisone, a steroid used by ophthalmic surgeons to control
inflammation. Precourt took Prednisone for approximately ninety
days following the operation. Initially, the vision in Precourt's
left eye improved, but thereafter it deteriorated so that, by
December, 1976, that eye was blind. Nevertheless, Precourt
returned to work as an electrician.

In the spring of 1977, Precourt and Frederick discussed the
possibility of a second operation to remove scar tissue that had
resulted from the first operation. Frederick told Precourt that a
second operation had only a ten per cent probability of restoring
vision to the eye. In March, 1977, Precourt again entered
Massachusetts Eye and Ear Infirmary, and Frederick performed a
second operation on Precourt's left eye. After that operation,
Frederick placed Precourt on Prednisone for approximately
fifty-five more days. Precourt never regained vision in his eye.

In the succeeding years, Precourt's hips bothered him, and in
March, 1980, physicians diagnosed his problem as aseptic necrosis
of both hips. Aseptic necrosis involves the death of the bones of
the joint. Prednisone caused Precourt's aseptic necrosis. At the
time of trial, Precourt had undergone a total replacement of his
right hip, and he planned to undergo the same procedure on his
left hip. As a result of his hip problems, Precourt could no
longer work as an electrician.

The evidence also showed the following. Frederick prescribed
Prednisone after surgery for fifty to seventy-five per cent of
the patients on whom he operated. Frederick had practiced
ophthamology since 1963, and he had not known of any of his
patients' developing aseptic necrosis following the use of
Page 693
Prednisone. However, before operating on Precourt, Frederick knew
from reading, attending conferences and meetings, and discussions
with colleagues, of an association between the use of Prednisone
and aseptic necrosis. Frederick knew that, when aseptic necrosis
develops, the process of bone death is irreversible, and he
described aseptic necrosis as one of the "most prominent"
musculoskeletal complications of Prednisone. Frederick also knew
that the Physician's Desk Reference — a book frequently referred
to by Frederick and other physicians — listed forty-one possible
complications associated with the use of Prednisone, including
aseptic necrosis, and that it listed hypertension (elevated blood
pressure) and renal impairment as relative contraindications for
Prednisone use. Frederick knew before operating on Precourt that
Precourt drank six "beers" daily, that he had slightly elevated
blood pressure, and that he had a history of gouty arthritis and
of a kidney stone.

Precourt testified that Frederick did not mention to him either
the likelihood that he would have to take Prednisone or the
reported association between Prednisone and aseptic necrosis.
Precourt testified that after the first operation Frederick
mentioned Prednisone only to prescribe it and to explain its
purpose. Precourt also testified that, before the second
operation, Frederick told him that he "had everything to gain and
nothing to lose" from the proposed surgery. In his testimony,
Frederick agreed that he did not tell Precourt that "he was in
danger of possibly coming down with aseptic necrosis of the hip."

Barry Fisherman, an ophthalmologist called as a witness by the
plaintiffs, testified that, in his opinion, before prescribing
Prednisone for a patient a physician should inform the patient of
the major risks of Prednisone use. He also testified that aseptic
necrosis was one of those risks. In response to a hypothetical
question, Fisherman testified that, because Precourt had
"hypertension and arthritis and the history of alcohol
consumption as well as kidney stones," Precourt should have been
informed that the Prednisone "could cause additional
complications to those systems, such as the hypertension could be
worse. There could be a development of a peptic ulcer which could
perforate and bleed and the musculoskeletal system,
Page 694
such as the arthritis, could be made worse with osteoporosis or
[aseptic] necrosis."

Melvin W. Kramer, an internist called by the plaintiffs,
testified that the development of the side effects of Prednisone
relates directly to the amount of Prednisone taken and the length
of time that the patient takes it, that Precourt's treatment
included a "high dose, long course of therapy," and that, in his
opinion, the cumulative effect of the courses of Prednisone that
Precourt took caused Precourt to develop aseptic necrosis. Kramer
testified that a physician "is obliged to make warning statements
regarding possibilities that the medicine may alter or change"
medical conditions such as those contained in Precourt's history,
and that "[t]he combination of sustained steroid therapy in a
cumulative fashion adding up to many weeks, many months of
therapy, has the ability to alter body chemistry in a known and
critical fashion. And patients who have associated medical
conditions, such as alcohol consumption, or other such metabolic
conditions, the patient then becomes a high risk for the
development of certain particular disorders. One of these
disorders is aseptic necrosis of the bone or hip."

The risk that materialized was that Precourt developed aseptic
necrosis as a result of the systemic use of Prednisone.
Therefore, in order to be entitled to recover damages, the
plaintiffs had the burden of proving that Frederick had a duty to
inform Precourt in a reasonable manner about that risk. Harnish
v. Children's Hosp. Medical Center, 387 Mass. 152, 157-158
(1982). Frederick had that duty only if he had, or reasonably
should have had, information about that risk that he reasonably
should have recognized Precourt would consider important in
deciding whether to undergo the proposed surgery. Id. at
155-156.

The materiality of information about a potential injury is a
function not only of the severity of the injury, but also of the
likelihood that it will occur. Regardless of the severity of a
potential injury, if the probability that the injury will occur
is so small as to be practically nonexistent, then the
possibility of that injury occurring cannot be considered a
material factor
Page 695
in a rational assessment of whether to engage in the activity
that exposes one to the potential injury. In Harnish, supra at
156, we recognized the relevancy of the probability factor when
we said that appropriate information for disclosure may include
"the nature and probability of risks involved." Similarly, in
Rogers v. Commissioner of the Dep't of Mental Health,
390 Mass. 489, 506 (1983), in discussing substituted judgment
decisions about treatment plans for incompetent institutionalized
mental patients, we said that a judge must consider, among other
factors, the probability of adverse side effects, which "includes
an analysis of `the severity of these side effects, the
probability that they would occur, and the circumstances in which
they would be endured.' [Guardianship of Roe, 383 Mass. 415,
447 (1981)]."

In order for the jury properly to have determined whether
Frederick failed to disclose to Precourt information that
Frederick should reasonably have recognized as material to
Precourt's decision, therefore, the jury had to have information
about both the severity of aseptic necrosis and the likelihood
that it would occur after the use of Prednisone. See Smith v.
Shannon, 100 Wn.2d 26, 33 (1983) ("The determination of
materiality is a 2-step process. Initially, the scientific nature
of the risk must be ascertained, i.e., the nature of the harm
which may result and the probability of its occurrence. . . . The
trier of fact must then decide whether that probability of that
type of harm is a risk which a reasonable patient would consider
in deciding on treatment"); LaCaze v. Collier, 434 So.2d 1039,
1046 (La. 1983) ("Materiality is, in essence, the product
of the risk and its chance of occurring. A severe consequence,
ordinarily of interest to the patient, would not require
disclosure if the chance of the consequence occurring was so
remote as to be negligible. Likewise, no disclosure would be
required of a very minor consequence even though the probability
of occurrence was high. At trial, once the severity and
probability of the risk is presented, the trier of fact may
determine materiality without the further aid of expert
testimony"); Winkjer v. Herr, 277 N.W.2d 579, 588 (N.D. 1979)
("There is no need to disclose risks of little consequence, those
that are
Page 696
extremely remote, or those that are common knowledge as inherent
in the treatment"); Beauvais v. Notre Dame Hosp.,
120 R.I. 271, 276 (1978) (in affirming the granting of a directed verdict
for the defendant physician in a case involving the doctrine of
informed consent, the court said: "While it is clear that
defendant failed to disclose the classic hazards of spinal
anesthesia, no evidence regarding the severity or likelihood of
those risks was presented so that a jury could determine the
materiality of those risks to a reasonable person in plaintiff's
position. See Wilkinson v. Vesey, 110 R.I. at 627-28 . . .").

In this case, there was no evidence of the likelihood that a
person would develop aseptic necrosis after taking Prednisone or
that Frederick knew or should have known that the likelihood was
other than negligible. Therefore, as a matter of law, the
plaintiffs failed to show that Frederick recognized or reasonably
should have recognized that the undisclosed risk was material to
Precourt's decision. Characterization of Precourt's Prednisone
dosage as "high" and the course of treatment as "long," in
combination with the evidence that the probability of aseptic
necrosis increases as the exposure to Prednisone increases, does
not permit the inference that Frederick reasonably should have
recognized that the possibility that Precourt would develop
aseptic necrosis was material to Precourt's decision. Nor is such
an inference made possible by the evidence of Precourt's
preexisting medical condition or by the evidence that aseptic
necrosis is one of the most prominent musculoskeletal
complications of Prednisone, or that the risk was "high." "High"
is a relative word. It could mean one in ten, but it could just
as well mean one in a million.

The evidence did not warrant a finding that Frederick violated
a duty he owed to Precourt. A contrary result is not required by
the testimony of the expert witnesses with respect to their
essentially legal conclusion that Frederick "should have" made a
disclosure that he did not make. Also, no different result is
compelled by Precourt's testimony that before the second
operation Frederick told him that he had "everything to gain and
nothing to lose." Precourt could not reasonably have taken that
statement literally to mean that the proposed surgery was free of
risk.
Page 697

We continue to adhere to the views we expressed in Harnish,
supra at 154-156, that self-determination by the patient is an
important value worthy of society's protection, but that there
must be a reasonable accommodation between the patient's right to
know, fairness to physicians, and society's interest that
medicine be practiced in this Commonwealth without unrealistic
and unnecessary burdens on practitioners. As we said in Harnish,
supra at 156, "[t]he obligation to give adequate information
does not require the disclosure of all risks of a proposed
therapy." We also observed in Harnish, supra at 155, that
"[t]he remotely possible risks of a proposed treatment may be
almost without limit," and we at least implied, as we now hold,
that a physician is not required to inform a patient of remote
risks. The development of our law concerning the distinction
between risks that as a matter of law may be considered remote,
and those that may be left to the determination of a fact finder,
must await future cases. It is clear, however, that when, as in
this case, the evidence does not permit the jury to draw an
inference that the physician knew or reasonably should have known
that the probability that a particular risk would materialize was
other than negligible, the evidence is insufficient to warrant a
finding that the physician violated his duty of disclosure.

Judgments reversed.

[fn2] We acknowledge the brief of amici curiae Massachusetts
Medical Society, Massachusetts Society of Eye Physicians and
Surgeons, and Massachusetts Eye and Ear Infirmary.

[fn3] The original complaint alleged that Elizabeth suffered her
injury as a result of Frederick's negligence. The plaintiffs did
not amend the complaint to allege that Elizabeth's injury
resulted from Frederick's failure adequately to inform Precourt.
However, the trial judge and the parties have treated the amended
complaint as alleging that Elizabeth's loss of consortium
resulted from Frederick's failure adequately to inform Precourt,
and we do so as well.

LIACOS, J. (concurring).

I concur in the judgment of the court. I agree that the trial
judge erred in denying the defendant doctor's motions for a
directed verdict and for judgment notwithstanding the verdict.
However, I reach this conclusion on the basis that the evidence
was legally insufficient on the question of causation. I do not
agree with the court that the evidence was legally insufficient
on the question of the defendant doctor's duty to disclose and
his failure to perform that duty. In my view, the court's
discussion of a physician's duty to inform a patient of the
material risks inherent in a course of treatment emasculates the
rule enunciated in Harnish v. Children's Hosp.
Page 698
Medical Center, 387 Mass. 152, 155 (1982). This treatment by
the court is not only erroneous on the facts of the case, but
also unnecessary. Hence, I write to state my views.

We held in Harnish v. Children's Hosp. Medical Center,
supra, that "a physician owes to his patient the duty to
disclose in a reasonable manner all significant medical
information that the physician possesses or reasonably should
possess that is material to an intelligent decision by the
patient whether to undergo a proposed procedure." We defined
"materiality" as "the significance a reasonable person, in what
the physician knows or should know is [the] patient's position,
would attach to the disclosed risk or risks in deciding whether
to submit or not to submit to surgery or treatment." Id. at
156, quoting Wilkinson v. Vesey, 110 R.I. 606, 627 (1972). We
said further that material information "may include . . . the
nature and probability of risks involved" in a procedure, but
that "[t]he obligation to give adequate information does not
require the disclosure of all risks of a proposed therapy."
Harnish, supra.

Today the court states the straightforward proposition that
"[t]he materiality of information about a potential injury is a
function not only of the severity of the injury, but also of the
likelihood that it will occur." Ante at 694. See Canterbury
v. Spence, 464 F.2d 772, 788 (D.C. Cir.), cert. denied,
409 U.S. 1064 (1972) ("The factors contributing significance to the
dangerousness of a medical technique are . . . the incidence of
injury and the degree of the harm threatened"); LaCaze v.
Collier, 434 So.2d 1039, 1046 (La. 1983) ("Materiality is, in
essence, the product of the risk and its chance of occurring");
Wilkinson v. Vesey, supra at 627-628 ("Among the factors
which point to the dangerousness of a medical technique are the
severity of the risk and the likelihood of its occurrence");
Smith v. Shannon, 100 Wn.2d 26, 33 (1983) ("The
determination of materiality is a 2-step process. Initially, the
scientific nature of the risk must be ascertained, i.e., the
nature of the harm which may result and the probability of its
occurrence").

In the present case, the plaintiffs argue that the information
that Precourt's eye surgery would necessitate a prolonged course
of treatment with Prednisone, and that the administration
Page 699
of Prednisone would present a risk that he would develop the
condition known as aseptic necrosis, which involves irreversible
bone death, was material information which the defendant had a
duty to disclose. The court, without foundation in fact or law,
holds that the plaintiffs failed to prove that this information
was material: "[T]here was no evidence of the likelihood that a
person would develop aseptic necrosis after taking Prednisone or
that Frederick knew or should have known that the likelihood was
other than negligible." Ante at 696. I disagree. The record
reveals ample evidence of the severity of the harm involved in
the condition of aseptic necrosis and the probability that
Precourt would develop this harmful condition.

Initially, I note that, in reviewing the trial court's denial
of a motion for a directed verdict and for judgment
notwithstanding the verdict, this court must "examine the
evidence in the light most favorable to the plaintiff." Forlano
v. Hughes, 393 Mass. 502, 504 (1984). In so viewing the
evidence in the record, the court's task is to determine "whether
`anywhere in the evidence, from whatever source derived, any
combination of circumstances could be found from which a
reasonable inference could be drawn in favor of the plaintiff.'
Poirier v. Plymouth, 374 Mass. 206, 212 (1978)." Forlano v.
Hughes, supra, quoting Miles v. Edward O. Tabor, M.D.,
Inc., 387 Mass. 783, 786 (1982).

Dr. Frederick does not dispute that aseptic necrosis is a very
severe condition. He himself defined aseptic necrosis as "the
cell death of a [portion] of the joint." He agreed that aseptic
necrosis is a debilitating and irreversible condition involving
bone death and distribution of the bone tissue. The evidence
warrants the conclusion that Precourt suffered this condition as
a result of the prescribed use of Prednisone.[fn1] As a result,
Precourt has a condition which necessitates total replacement of
both the right and left hips. The evidence shows also that, even
with successful hip replacement surgery, Precourt underwent
Page 700
a significant life-style change. Before he developed aseptic
necrosis, he had worked as a licensed electrician. At the time of
the trial, having undergone a successful replacement of one hip
and awaiting replacement of the other, he worked as a store
clerk. He was unable to lift or carry heavy items, to climb, or
to walk long distances. He walked with a cane and was unable to
sit or stand for long periods.

The record contains sufficient evidence that Precourt could
develop aseptic necrosis as a result of his treatment with
Prednisone and that Dr. Frederick knew, or reasonably should have
known, of this risk to Precourt. Dr. Frederick testified that he
knew, from reading, attending conferences, and engaging in
discussions with his colleagues, that the use of Prednisone has
been associated with the condition of aseptic necrosis. Dr.
Frederick characterized aseptic necrosis as one of "the most
prominent" musculoskeletal side effects of Prednisone. Dr. Melvin
W. Kramer, one of the plaintiff's expert witnesses, a physician
board-certified in internal medicine, testified that the side
effects of Prednisone "are made known to every physician who
obtains a diploma from medical school." Dr. Kramer also testified
that Precourt received a "high dose" of Prednisone over a "long
course of therapy." Dr. Joseph Bowlds, an ophthalmologist who
testified as an expert witness for the defendant, stated that
"[t]he greater the exposure to [Prednisone], the greater the
frequency of the complications."

The evidence that aseptic necrosis was a well documented,
generally known, and very serious side effect of Prednisone; that
the risk of aseptic necrosis increases with extended exposure to
Prednisone; and that Precourt was prescribed by Dr. Frederick a
"high dose, long course of therapy" with Prednisone is sufficient
to meet the plaintiffs' burden regarding materiality. Many courts
have stated that, while "materiality" is a function of severity
and likelihood, the more severe the harm, the less likely the
harm need be for information concerning the risk to be considered
material by the fact finder. "A very small chance of death or
serious disablement may well be significant; a potential
disability which dramatically outweighs the potential benefit of
the therapy or the detriments of the existing malady
Page 701
may summons discussion with the patient." Canterbury v.
Spence, supra. Wilkinson v. Vesey, supra at 628 (same).
McKinney v. Nash, 120 Cal.App.3d 428, 441 (1981) ("The low
incidence of testicular atrophy weighs against materiality. The
seriousness of testicular atrophy is debatable as well. Yet we
cannot say, as a matter of law, that a jury reasonably could find
that knowledge of this risk was not material to plaintiff's
decision"). Cf. LaCaze v. Collier, 434 So.2d 1039, 1046 (La.
1983) ("A severe consequence, ordinarily of interest to the
patient, would not require disclosure if the chance of the
consequence occurring was so remote as to be negligible").

While I believe that the evidence described above is sufficient
for a fact finder to conclude that the information was material,
there was additional evidence that Precourt could develop aseptic
necrosis, which puts it beyond dispute that there was sufficient
evidence to submit the materiality question to the jury.
Precourt's medical history indicated that he was a "high risk"
for aseptic necrosis. Dr. Kramer testified that he had reviewed
Precourt's records from the Massachusetts Eye and Ear Infirmary
and that the records revealed that "[o]n both occasions [both
operations], the medical consultation prior to operation recorded
the alcohol consumption of six beers per day." As the court
describes, ante at 694, Dr. Kramer also testified that "`[t]he
combination of sustained steroid therapy in a cumulative fashion
adding up to many weeks, many months of therapy, has the ability
to alter body chemistry in a known and critical fashion. And
patients who have associated medical conditions, such as alcohol
consumption, or other such metabolic conditions, the patient then
becomes a high risk for the development of certain particular
disorders. One of these disorders is aseptic necrosis of the bone
or hip.'" (Emphasis added.)[fn2]
Page 702

It is clear to me that there was sufficient evidence of both
the severity of the harm and the likelihood that the harm would
occur for the question of materiality to go to the jury.
Moreover, while the issue whether risk information is material
encompasses the questions of the severity of the harm and the
likelihood of its occurrence, the issue is significantly broader.
It is "the significance a reasonable person, in what the
physician knows or should know is [the] patient's position,
would attach to the disclosed risk or risks" (emphasis added).
Harnish v. Children's Hosp. Medical Center, 387 Mass. 152,
156 (1982), quoting Wilkinson v. Vesey, supra at 627. The
very basis of the materiality standard is the patient's need. See
generally Canterbury v. Spence, 464 F.2d 772, 786-788 (D.C.
Cir. 1972). "[T]he patient's right of self-decision shapes the
boundaries of the duty to reveal." Id. at 786. While measured
by an objective standard of a reasonable person in the
plaintiff's position, the question whether information is
material to a patient is substantially an individual decision. In
a case such as the present one, in which it is the patient's own
particular medical history which leads an expert witness to
testify that Precourt was a high risk for a serious and
debilitating condition, it is beyond peradventure that the
question should go to the jury. Id. at 788 ("Whenever
non-disclosure of particular risk information is open to debate
by reasonable-minded [persons], the issue is for the finder of
the facts").

While I have written separately because I believe that the
evidence on the materiality question was sufficient to go to the
jury, I concur in the judgment of the court that the trial judge
erred in denying the defendant's motions for a directed verdict
and for judgment notwithstanding the verdict. The evidence was
legally insufficient on the question of causation. "At trial, the
plaintiff must also show that had the proper information been
provided neither he nor a reasonable person in similar
circumstances would have undergone the procedure." Harnish v.
Children's Hosp. Medical Center, supra at 158.
Page 703
Canterbury v. Spence, supra at 790-791. Precourt testified
that, even if Dr. Frederick had informed him of the risk that he
would develop aseptic necrosis, he would have undergone the first
operation. He testified, however, that he would not have
undergone the second operation. There was insufficient evidence
that Precourt's condition was caused by the drug therapy
administered after the second operation. Dr. Kramer testified
that Precourt's condition was caused by the cumulative effect of
the drug. He did not testify that it was more probable than not
the Precourt's condition was caused by the drug therapy
administered after the second operation.[fn3] The plaintiffs
presented no other evidence to establish that the course of
therapy after the second operation was more probably than not the
cause of Precourt's aseptic necrosis. The evidence on the
causation question was insufficient to warrant submission of the
case to the jury. See Forlano v. Hughes, 393 Mass. 502,
507-508 (1984), and cases cited.

[fn1] In his brief to this court, Dr. Frederick concedes that the
jury would be warranted in finding that Precourt's Prednisone
therapy caused him to develop the condition of aseptic necrosis.

[fn2] The court dismisses this evidence with the statement that
"`[h]igh' is a relative word. It could mean one in ten, but it
could just as well mean one in a million." Ante at 696. I do
not understand the court's facile dismissal of this important
testimony of an expert witness. "High" is indeed a relative term,
and this expert in effect testified that Precourt was a high
risk, relative to other persons, for the development of aseptic
necrosis. I think this is just the type of evidence contemplated
by those courts that have called for expert testimony on "the
nature of the harm which may result and the probability of its
occurrence." Smith v. Shannon, 100 Wn.2d 26, 33 (1983).
See Winkjer v. Herr, 277 N.W.2d 579, 588 (N.D. 1979).

[fn3] On cross-examination, Dr. Kramer was asked, "You cannot say
that had [Precourt] not taken the course [of therapy after the
second operation], he wouldn't have come down with aseptic
necrosis, can you?" Dr. Kramer answered, "No, sir."
Page 704



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