How to Make the Massachusetts Patients' Bill of Rights Work

See generally, Annas G.J. , The Rights of Hospital Patients (Avon, N.Y., 1975).

E.g., Margolis, Conceptual Aspects of a Patients' Bill of Rights, Connecticut Medicine Supplement 43: 9 (Oct. 1979). Also see Ladd , Legalism and Medical Ethics in Davis Hoffmaster and Shorten , editors, Contemporary Issues in Biomedical Ethics (Humana Press, New Jersey, 1978).

Examples of patient abuse based on provider misunderstanding of the law after the Saikewicz case in Massachusetts are cited in Annas G.J. , Reconciling Quinlan and Saikewicz: Decision-Making for the Terminally Ill Incompetent, American Journal of Law & Medicine 4(4): 367, 387 (1979).

Rawls J. , A Theory of Justice (Harvard University Press, Cambridge, MA, 1971).

Dworkin R. , Taking Rights Seriously (Harvard University Press, Cambridge, MA, 1977).

Id. at 205.

Reprinted in Annas, note 1 Supra, at 25–27.

Mass. Gen. Law c. Ill, § 70E.

Patients' Rights, Massachusetts Medical Society Newsletter (September 1975) at 7–8, reprinted in New England Journal of Medicine 293: 828 (1975).

Knox R. , A Bill of Rights for Patients, Boston Globe, August 20, 1979, at 10.

Id.

Statement of Grant Rodkey to Massachusetts Health Care Committee; reprinted in Massachusetts Medical Society Newsletter (October/November 1979) at 4–5.

Massachusetts Hospital Association Bulletin, no. 15 (June 5, 1979) at 4.

Id. at 1. This policy was restated at a conference on the law sponsored by the MHA on October 24, 1979.

Rodkey , note 12 supra. Physicians wondering what to tell patients might consult a two part “Medical Progress” article on Cancer of the Breast by Henderson and Canellos in the January 3 and 10, 1980, issues of the New England Journal of Medicine. Among their conclusions: “The routine use of the classical radical mastectomy or of adjuvant radiotherapy, both standard practices a decade ago, should now be abandoned …”(at 87) and, “It is no longer acceptable for one specialist to treat a patient without early consultation with the other specialties involved. With so many treatments available, the possibilities for cures are real, and there is no justification for a nihilistic approach to the treatment of breast cancer” (at 88).

While there has been no Massachusetts case formally recognizing informed consent as a common law basis for a civil action against a physician, in Belchertown v. Saikewicz, 370 N.E.2d 417 (Mass. 1977), the doctrine was described as one with origins in the constitutional right of privacy and self–determination, and a federal judge, applying Massachusetts law, has implicitly accepted the informed consent doctrine. See Rogers v. Okin, 478 F. Supp. 1342 (D.C. Mass. 1979).

See Annas G.J. , The Hospital: A Human Rights Wasteland, 7 Civil Liberties Review 1: (Fall 1974).

For a detailed discussion of this proposal, see Annas G.J. and Healey J.M. Jr. , The Patient Rights Advocate: Redefining the Doctor-Patient Relationship in the Hospital Context, Vanderbilt Law Review 27: 243 (1974).