Saying “stop” during an imaging exam is enough to withdraw consent and sue a hospital for battery, a Massachusetts appeals court ruled recently.
The Feb. 11 decision deals a blow to Brigham and Women’s Hospital while giving new life to a suit filed by the family of Donna Zaleskas. A Massachusetts Superior Court had previously sided with the Boston-based, Harvard-affiliated institution, but this latest ruling allows Zaleskas’ family to pursue claims of emotional distress after technologists allegedly did not heed the woman’s request to stop imaging exams, Law360 reported.
"Whether [the patient] said, 'stop,' whether the technologists stopped the exam prior to completion, and whether they could have stopped sooner than they did are genuine issues of material fact which must be determined by the trier of fact,” the court wrote in its 37-page opinion. “Accordingly, we reverse so much of the summary judgment on count one that alleges battery under the theory of withdrawn consent."
Zaleskas, first sought care for her terminal cancer at Brigham and Women's Hospital back in August 2011. After experiencing severe pain in her left leg, a doctor ordered x-rays, with several technologists administering the exam. The lead imager advised the patient’s mother and sister that, if Zaleskas became uncomfortable, she could say so and they’d stop. Both family members were outside of the x-ray room while the exam took place.
The family claims that technologists completed the course of x-rays, despite the woman continuing to “wail and beg for them to stop.” Brigham for its own part disputed this claim.
X-rays eventually determined that Zaleskas had a fracture in her left femur, and she was immobilized with a brace. She died the same month, and the family filed suit in 2014. The courts have, meanwhile, denied the family’s claim of wrongful death.
Following the latest decision, the case will be sent to a lower court for further proceedings, according to the report.
Marty Stempniak has covered healthcare since 2012, with his byline appearing in the American Hospital Association's member magazine, Modern Healthcare and McKnight's. Prior to that, he wrote about village government and local business for his hometown newspaper in Oak Park, Illinois. He won a Peter Lisagor and Gold EXCEL awards in 2017 for his coverage of the opioid epidemic.