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Decision To Forego Surgery Also Requires Patient Consent

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JULY 26, 1999 VOLUME 7, NUMBER 4

Jean Matthies was eighty-one years old when she fell and broke her hip. She had been living alone in her apartment in Union City, New Jersey, and had been quite independent. She did her own shopping, cooking and housecleaning. But with a fractured hip, she could not even summon help; she lay undiscovered in her apartment for two days. When she was transported to a local hospital emergency room, she was deyhdrated and confused.

Dr. Edward Mastromonaco was the orthopedic surgeon called in on Ms. Matthies’ case. He considered her condition, medical history and x-rays, and decided not to undertake surgery for her broken hip. Instead, he prescribed what he called a “bed rest treatment.” Ms. Matthies was confined to her hospital bed for several days, followed by increasing periods in a chair and being assisted to walk around her hospital room.

There were several reasons Dr. Mastromonaco gave for deciding against the surgical alternative. He later testified that she was elderly, frail and in a weakened condition. She had, forty years earlier, suffered a stroke which left her partially paralyzed on her right side, and made her use her right leg as a “post,” pushing herself forward with her left leg. Besides, she suffered from osteoporosis, and Dr. Mastromonaco decided that her bones might be too porous to hold the surgical screws; if they weakened, she would later require hip replacement surgery.

Dr. Mastromonaco made his decision at least partly on the basis that he thought Ms. Matthies should not continue to live alone. In explaining his position later, he told the court that “I’m not going to give her that leg she wanted. She wanted to live alone, but she couldn’t live alone. . . . I wanted her to be at peace with herself in the confines of professional care, somebody to care for her. She could not live alone.”

Dr. Mastromonaco’s vision of what should happen with Ms. Matthies came to pass precisely as he suggested. After a short period of bed rest her right femur displaced, leaving her right leg shorter than her left. She never regained the ability to walk, and she now lives in a residential care facility.

Ms. Matthies sued Dr. Mastromonaco for medical malpractice, alleging both medical malpractice and a violation of principles of informed consent. She argued that Dr. Mastromonaco should have disclosed the surgical alternative and discussed the choices with her, rather than deciding on the “bed rest treatment” on his own.

Dr. Mastromonaco argued that there is not duty to secure informed consent to a non-invasive medical procedure, and the trial court agreed with him. The New Jersey Court of Appeals and the New Jersey Supreme Court did not, and reversed the award in favor of Dr. Mastromonaco.

“Choosing among medically reasonable treatment alternatives is a shared responsibility of physicians and patients,” wrote the court. “To discharge their responsibilities, patients should provide their physicians with the information necessary for them to make diagnoses and determine courses of treatment. Physicians, in turn, have a duty to evaluate the relevant information and disclose all courses of treatment that are medically reasonable under the circumstances. … [T]he ultimate decision is for the patient.” Dr. Mastromonaco must now show that he discharged his duty to adequately inform Ms. Matthies of her choices, both surgical and non-surgical. Matthies v. Mastromonaco, July 8, 1999.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.