the bradleys can point to two errors that were made in this case two distinct errors made by different judges at different stages of the litigation but have a common underpinning common flaw which is taking an issue that disputed fact away from consideration from the jury the first error involves the erroneous ruling by the trial court that as a matter of law a plaintiff cannot pursue a claim for battery when she has consented to some type of surgery even if there are aspects of the consent the scope of can set to cause the judge the parameters of the surgery are are in a factual dispute with genuine material areas jury did not find in this case that there was a negation of proximate cause i think the jury found the opposite they found by a promise of the evidence that the the undisclosed risk or consequence actually occurred as a result of the surgery of the surgery and caused injury to her so i believe that that's the stat sufficient to sustain the element of causation i think getting into counterfactuals is not what is charged to the jury and of in  and in this case damages are not hotly contested and i believe the jury indicated what they thought of causation the element of harm which the barbara bradley foundered is whether she would have done something different and that is a unique species to infor informed on the alternatives so that will lead to my second issue they weren't told about the alternatives the question we don't be speculating but the jury could have thought well she had no alternative and i think that  it was removing tissue from the toad just by consent limited to remove toenails so to answer the question there is a whole different analysis and discussion that would have to take place just to enlighten the jury about what you would have done which would require more focus on on evidence and i don't want to get to my second issue but certainly we could we could explain the jury verdict simply by the lack of focus on your biopsy but i would contend t that question itself would not be on the jury the jury verdict form even if the jury could consider that you might have done the same thing that question itself would not be an element and that's what what the court in actually the concurrence in feeley was well we're not going to make an ironclad rule what happened what would happen in a situation where the doctor kropotkin said to do one thing and proceeded to do another now that this this discussion heinrich involved whether that other was negligence how does it help correct so how does it help to layer on and that everything well in this in many cases you don't have a malpractise claim distinct from either informed consent or battery meaning that if the patient undertakes to the law and that the only way you can read the trial court's decision in this case is that there's been some contraction that there was this common law tort of battery that we don't like anymore we want to eliminate it and  is this court and other courts have commented on the fact you can't win a malpractise case without an expert and so courts don't have the discretion to to punt an expert in valid reasons there is no question  was well the the best i can i can say is that it was based on a number of statements that were made that were really  well if that what were his conclusion that would have been i think clear error because there was ample evidence to the contrary i think what he said and this is that it gets to my second point of why i think it's a legal error what he said was that it was an option until it stopped being an option and that runs afoul of this court's decision and harrison and the unremitting and the district court's decision on the following case what does it mean what does that mean yeah it was an option till it stopped being an option the best that i could say is that what he was saying was that nobody was considering it from the medical side so it was mention and we can't claim it was never mentioned it was mentioned it was discuss but it was not discussed in the in the context that it should have been and then it ceased to be an ops option after a phone call that barbara bradley received from dr sugar vickers assistant mr hong now what's peculiar about this decision in judge stern's comments on that in his summary judgment decision is he didn't remember this conversation it's not in the medical records and it contradicts what is in the medical record that you'd expect to see in relation to this conversation what happens is they go to the interventional cardiologist d who by the way did not testify at trial she didn't appear and said what say you and she said this looks more inflammatory i e less cancerous let's do a repeat pet scan which they did the next day mr huhne calls barbara bradley and says i need a biopsy told her that's correct and the doctor put him said to the extent that the way his report was written to the extent she was dissuaded from pursuing it and i would argue that having the assistant of the surgeon calling you at your house and saying can't be done is n i don't believe in c sections we were going to do it the natural way that doesn't excuse me from having to disclose it i have to say there's a doctor down the hall who'd be willing to do that what has happened in this case is d sugar says why don't you do biopsies i'm not interventional radiologist talk to dr jacobson and she says the same thing if you believe mr hung that the doctor in harrison said i don't want to do it now of course she didn't come in and say that so we're relying on the sort of totem pole here's a a but it's the same area you're certain bent ing the requirement of giving full disclosure simply because it doesn't appear that the doctors that are talking to you want to do it and that's the mistake that the trial court made by  negligence and the availability of a reasonable alternative that should have been slow one morning it plays the court carol clearly for dr sugar baker start with the second issue the trial court properly excluded the testimony the proposed testimony of dr putnam because it wouldn't have been relevant to any of the issues being submitted to the jury exclusion of potential evidence was the rania's and cause prejudice requiring a new trial i'm confused by how you say that is that if the court was as an expert disclosure of pages and the quote was referring by numbers to the parent or pete paragraphs and that efforts closure and then asking questions so we have a transcript of counsel explaining to the judge what each of those are there was definite up position of the doctor before that so how you tell us there was no proffer the question was with respect to the final aspiration issue there was nothing that the judge was told the jury dr putnam intended to testify to specific to the final aspiration the parameters of the negligent and secondly that if the doctor hits dissuaded the patient from having that by not need a lot more asian procedure that that would have fallen below the standard of care but neither of those proposed pieces of evidence would have been relevant i know first there was no evidence that mrs bradley was unaware of fine needle aspiration as an option well no that's not true when you look at the evidence we have to assume that it's true that your client's assistant called her up and told her it was not an option that in this case it told her it wasn't an option and she wanted to present an extra who would say that was flatly wrong and it was an option and it would have changed her diagnostic alternative that wasn't part of his disclosure what is just what was  assistant dissuaded the patient from consideration of needle biopsy like telling her it was not available then an alternative to diagnosis of the superior was tumor which would modify the patient said it was but there's no mention of it in the medical records so isn't that an issue for the jury it's not an issue for the jury your honor because in this instance dr putnam didn't disagree with the approach that dr sugar baker was ted was taking in advising the patient of her options he was saying that it is dr sugar baker's reliance on the radiologist that's important here the radiologist would be the one to perform this procedure and decide if it was available in this case and several radiologist testif understood that it would have been negligent and dr put in a negative it would have been negative and dr putnam testified that if it was negligent or if it was performed then it would have been appropriate it would not have been negligent to go on to the next one page two eighteen to two nineteen of the record doctor partner doc paragraph twenty six of this statement of undisputed facts it was undisputed that it was reasonable for the surgeon to rely on the radiologist that's the key case that if it's not the case may i ask leave to submit a citation to the court post argument i can represent to the court that i'm aware of that massachusetts law does in fact hold that the absence of an entry medical record doesn't an inference that something wasn't done and that makes sense because it's certainly not possible for every single statement every single thing that a patient is that is done to a patient to be recorded in the record the record contemporaneous item by item list of what happens to a patient or a water doctor does that here mrs bradley testified that that's what dr mr hong told her that f n day wasn't an option and if any of that what the jury decided ultimately was that had mrs bradley been told the information that dr sugar baker was alleged to have not told her she would have had that a reasonable person or she would have had that procedure anyway and that the elements of that claim are first the claim to pass to show what the reasonable qualified physician in that positions position should know about the relevant risks and benefits that's what subject expert testimony and dr put his testimony as to what he thinks should be disclosed simply irrelevant that what what harnish says is first patient has to introduce evidence of what under the standard of care a patient needs to be a physician should know about risks and benefits and the sort of the parameters of what the risks and benefits are of a particular treatment once that expert testifies to that then the jury decides based on its experience and its late sort pre court is more informative on this say is that what expert testimony is supposed to describe is the run the relevant risks and benefits of the procedure or the proposed treatment or under feely non treatment so for example a expert would say the wrists of undergoing this type of procedure include say a fifty percent risk of infection or bleeding whatever the rest are this has to be some identification and more important quantification of the relevant rest and that an average qualify physician in a surgeon's position should know of those stress so what what harness and record say is what the doctor should know is what expert testimony is supposed to to pertain  whether the whether that information is material to the patients decision to undergo the procedure is for the jury and what the jury looks that is given what the doctor should have known they first decide was that told the patient if there if the determination is know that wasn't told to the patient then they're asked to decide was the undisclosed information something that a reasonable patient in this person's position would have considered important to a decision to undertake that treatment and in addition as an object and a subjective component in fact would this patient not have undergone the procedure had they known about that and they issue a materiality again it goes to the jury they look at the wrists as they've been described by the expert and the benefits as described by the expert in relation to sort of the severity so that's why our nation pre court in a low risk of a severe harm might need to be disclose high risk of a not severe harm i need to be disclosed but again that's all for the jury's determination it's not a situation where plaintiff puts on an expert who says it was a breach it's mixing apples and oranges the expert doesn't come in and say in my opinion the structure failed to inform obtain informed consent because it was a breach of their political standard not to disclose these particular graphs the experts role is very different than in a medical in medical negligence claim the expert also is necessary to testify that the undisclosed wrist actually materialized and caused harm to the patient so that causal connection that link the cause of the related damages is something that in many instances might need expert testimony and here there's a deficit as well the plaintiffs suggest that the jury's answers to the informed consent questions somehow can be read to interpret the fine needle aspiration wasn't disclosed to the pla that's not logical from here instead what we know we look at the verse the did in fact materialize it was an infection and the infection is as the record is clear is something that mrs bradley was aware of could be the result of any procedure so she c d to undergo the operation and she and she developed the infection with respect to the battery claim if i may on the issue of the battery were not arguing that having consented to the surgery this is bradley consented to  dr sugar baker doing i think the plaintiff's lawyers or something to the effect of whatever he wanted or however much a procedure he wanted she consented to a biopsy what was done was a biopsy the purport the purported description of part of the resection really is a distinction without a difference dr bradley the doctor shook a baker and began removing tissue they were frozen sections performed those reported back is negative but continued to remove all of his she was all part and parcel of the of the biopsy and there's no expert evidence in this record whatsoever to suggest that the more removal of the wedge as part of the procedure was separate and distinct from the biopsy thank you this was a ten thirty then there was an air leak then there was a wedge resection which was taken to pathology only representative samples not the whole thing was biopsied but before that result came back the surgery was declared ready to close even though if there had been cancer barbara bradley would have undergone immediately to cervical media he which would have been necessary to see if the cancer spread to the lymph nodes so dr sugar baker was confident there was no cancer before he did the wedge resection which involves healthy long tissue so i would disagree that it's a distinction without a difference to have healthy one tissue removed just to rebut a couple of other points on going back to the needle biopsy disclosing the existence of a technique is not  sufficient the lay person might think they know what a needle biopsy is but they would have no way of comprehending what that entails the diagnostic path the steps and so it's not sufficient to say hey there's a technique but we're not going to talk about it you actually have and harness requires that you actually comparing contrast and you give a viable option down one path or the other that was simply not done here with respect to standard of care even if the argument was true that you can't give a standard  working set and i would disagree with that and i going off the top of my head but i believe the kissinger case talks about standard of care at this court for informed consent but certainly that's required in a negligence case that the only way to get it is through expert testimony so if the argument is true for informed consent it's not true for negligence you have to be able to talk about the standard care and the last point i just want to read this is on the issue of whether dr sugar baker would have relied on a radiologist i'm going to quote from him