March 1, 2020

A Massachusetts Appellate Court held in its opinion filed on February 11, 2020, “We are required in this case to consider whether there is a viable cause of action for battery, in the medical context, based on withdrawal of consent. We conclude that there is. In a case such as this, which involves a claim that the patient asked X-ray technologists to stop amidst the taking of X-rays, we also conclude that expert testimony about the feasibility of stopping is not required.”

Medical Battery

Medical treatment of a competent patient without her consent is a battery. In Massachusetts, there is “a general right in all persons to refuse medical treatment in appropriate circumstances and that right extends to an incompetent, as well as a competent, patient.”

The Massachusetts Appellate Court held: “We now hold that if a patient unambiguously withdraws consent after medical treatment has begun, and if it is medically feasible to discontinue treatment, continued treatment following such a withdrawal may give rise to a medical battery claim. Complaints of pain and discomfort are not sufficient … To withdraw consent, “[t]he patient must act or use language which can be subject to no other inference” and “leave no room for doubt in the minds of reasonable [listeners] that in view of all the circumstances consent was actually withdrawn” … Here, a reasonable jury could find that saying stop or words to that effect, in the particular factual context at issue, was sufficient to withdraw consent.”

The Massachusetts Appellate Court further held: “We also conclude that consent to have one’s body touched or positioned for an X-ray is not a matter beyond the common knowledge or experience of a layperson and does not require expert medical testimony. Nothing about an X-ray exam inherently raises the question whether cessation of treatment was feasible and the defendant technologists contend that they stopped the X-ray exam before completion, demonstrating that it was feasible to complete fewer X-rays … Viewing the evidence in the light most favorable to the plaintiffs, a jury could find that the X-ray technologist took the six X-rays ordered, but falsely told the plaintiffs that he stopped early, taking only five. From this, the jury could reasonably draw an inference that Donna said to stop, but that the X-ray technologists did not, falsely reporting otherwise to her waiting family who had been promised the X-rays would stop if Donna asked, and who might have heard her say to stop, to allay the family’s concerns and avoid liability. Indeed, the defendants admitted in response to the plaintiffs’ motion for summary judgment that “[a] genuine issue of material fact exists regarding whether the x-rays were timely terminated.” These disputes of material facts were sufficient to defeat summary judgment on the claim of battery.”

Intentional Infliction Of Emotional Distress

The Massachusetts Appellate Court stated: “Viewed in the light most favorable to the plaintiffs, a jury could find that the technologists understood Kara’s and Margaret’s concern, as family members, about Donna’s extremely vulnerable state and then-current level of pain; the technologists denied their request to allow a family member to assist or remain in the room in order to minimize any additional pain Donna might experience during the X-ray exam; the technologists gave an assurance that they would stop if Donna asked; failed to stop despite a plea from Donna to stop; knew that Kara and Margaret waited outside the X-ray room and could hear Donna’s screams of agony; returned Donna to a soiled bed; and lied about stopping the X-ray exam early in an apparent attempt to hide wrongdoing. These facts and circumstances, if proved, would permit the jury to find in favor of the plaintiffs on their claims of intentional infliction of emotional distress.”

Source Zaleskas v. Brigham and Women’s Hospital, No. 18-P-1076.

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