For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Haneman, J.
[37 NJ Page 329] Plaintiffs filed a complaint consisting of seven counts. In the first five counts they sought damages based upon the alleged intentional or negligent acts of defendant physician (1) in failing to tell them the truth regarding the health of their child, Linda, (2) in misrepresenting
to them her condition of health, (3) in failing to discover her physical impairments. In the sixth and seventh counts they sought damages arising from an unauthorized disclosure by defendant to the insurer of the life of plaintiffs' daughter concerning the child's physical condition at the time application for the policy had been made. After answer filed, defendant moved to dismiss the seven counts on the ground that they did not state a claim upon which relief could be granted. The trial court denied defendant's motion insofar as the first five counts were concerned but granted the motion addressed to the sixth and seventh counts. The order entered pursuant to that conclusion determined, inter alia, that "there is no just reason for delay of the entry of a final Judgment of Dismissal on the sixth and seventh Counts of the Complaint; and * * * a final judgment be and is hereby entered in favor of defendant and against the plaintiffs on the sixth and seventh Counts * * *." Plaintiffs appealed to the Appellate Division. Before argument there this court certified the appeal on its own motion. (R.R. 1:10-1(a).)
The complaint alleges the following facts insofar as the sixth and seventh counts are concerned:
Defendant is a duly licensed physician of New Jersey, specializing in the field of pediatrics. Prior to the birth of their daughter Linda on May 27, 1959, plaintiffs had engaged defendant to "examine [her], when born, and report any physical or emotional abnormalities, recommend any treatments or procedures deemed necessary or desirable and to do all other things which a pediatrician has a duty to do * * *." During the four months following Linda's birth defendant examined her approximately eleven times and on at least three of these occasions the plaintiffs or one of them informed defendant that "the baby seemed to breathe with some difficulty and that it cried considerably." Defendant replied that "there was nothing to be concerned about and that such symptoms are frequently found in very young babies." Defendant never indicated "the existence
or possibility of existence of heart trouble of any kind." On January 23, 1960, the baby became seriously ill and at 2:15 A.M. the following morning was rushed to the hospital. The baby died that day and an autopsy disclosed that the child had a congenital heart defect.
In the sixth count plaintiffs allege specifically that George Hague, the father, entered into a life insurance contract with the Lincoln National Life Insurance Company under which he insured the life of the baby in the amount of $1,500, he being the owner and beneficiary of the policy. At the time the above application was made plaintiff represented that the baby was in good health to the best of his knowledge and belief. After the baby died and plaintiff had filed a claim for the life insurance policy proceeds, the insurance company, during its investigation, sought information from defendant, who thereupon advised the insurer that the baby had had heart trouble since birth, a statement which he had never made to either of the plaintiffs, and which they allege defendant was not privileged to make to anyone else without express permission had in advance. Plaintiffs asserted upon the argument of the motions that they were humiliated as a result of defendant's conduct in that the insurance company rejected their claim with the intimation that they had attempted to defraud it.
In the seventh count plaintiffs repeat the allegations of the sixth count and assert that "as a result of defendant's failure to inform plaintiffs of the baby's physical condition, plaintiff George Hague was unable to collect the proceeds of said life insurance policy and finally collected a net amount (after legal fees) of only $600.00 after filing suit. Wherefore, plaintiffs on this count, demand judgment in the amount of $900.00."
Plaintiffs base their right to recovery for damages under the sixth and seventh counts upon an alleged breach by the defendant of a duty not to divulge confidential information. They argue that defendant was under a duty not
to reply to the inquiry of the insurer as to the state of health of the child, without their express authorization.
The essential question on appeal, then, is whether there exists a duty which defendant allegedly breached, i.e., whether the knowledge of the child-patient's pathological condition obtained by defendant physician in the course of consultation or treatment is of such a confidential nature that the physician ...