In discharging the duty of informed consent, is a physician negligent in failing to inform parents of a newborn infant manifesting a life-threatening condition, namely hydrocephalus secondary to intraventricular hemorrhage, that they had the alternative of non-treatment and letting the baby die? That is the issue presented on motions for summary judgment filed on behalf of defendants, Newark Beth Israel Medical Center and
the physicians who treated the infant at that hospital, Drs. Ilana W. Zarafu, Po-I Tseng, Nicole Cohen-Addad, Krieger, Antonio, deMesa and Emanuel. The resolution of that issue requires an inquiry into legal duty as of the time relevant, namely November 1980, which invokes application of the reasoning and determination set forth in In re Quinlan, 70 N.J. 10 (1976), modifying 137 N.J. Super. 227 (Ch.Div.1975), cert. denied sub nom., Garger v. New Jersey, 429 U.S. 922, 97 S. Ct. 319, 50 L. Ed. 2d 289 (1976).*fn1
Renee Iafelice was born four weeks prematurely on October 2, 1980 at Palisades General Hospital, North Bergen. Renee weighed 2 lbs. 14.5 ounces and manifested severe respiratory distress, which required mechanical ventilation through an endotracheal tube. On the same day Renee was transferred to the Neonatal Intensive Care Unit at Newark Beth Israel Medical Center, a facility designated Level Three Teritary Center for Perinatology. Defendant, Dr. Ilana W. Zarafu, Director of Neonatology, undertook care of the infant, assisted by Drs. Antonio and deMesa, fellows in the same field, and by Dr. Emanuel, a resident in pediatrics. Diagnosis of hyperbilirubinemia, hyaline membrane disease, and lung congestion were treated with exchange transfusion, Indomethacin, and insertion of a replogle tube in the stomach to prevent distention with air or fluid. That treatment was rendered with the consent of the parents. The infant responded well to that treatment, for by October 29 she had been off the respirator for three weeks and had been breathing very well on her own.
On October 29, 1980, at the age of four weeks, a diagnosis of intraventricular hemorrhage and secondary hydrocephalus was confirmed. It is undisputed that untreated hydrocephalus
causes increasing head size, intracranial pressure, brain damage and death. Following a consult on October 31 by Dr. Abbott J. Krieger, attending in neurosurgery, he performed an emergency tap of the ventricle in the brain to relieve pressure on November 6. On November 10 a ventriculoperitoneal shunt was inserted by Dr. Krieger following discussions with a neonatologist, a neurosurgeon and Renee's parents. Dr. Zarafu discussed the proposed surgery with Renee's parents during which they were advised that the situation was serious, that the child would not be normal and that she would likely die if no treatment were rendered. Renee's father signed a written consent form. The surgery was successfully performed. The infant left the Newark Beth Israel Medical Center December 23 and has been institutionalized ever since with severe neurological deficits.
Dr. Zarafu concedes that she did not counsel Renee's parents prior to the proposed surgery of November 10 that they had the option of non-treatment nor did the physician inform the parents that they could oppose the proposed treatment and compel the physicians and the hospital to resort to the courts for authorization. Moreover, plaintiffs' expert, Dr. Franklin Desposito, of the University of Medicine and Dentistry of New Jersey, concedes that the quality of care rendered Renee met the highest standards of medicine and that the shunt procedure "was not an inappropriate form of treatment," but on the contrary, "a perfectly reasonable form of treatment." (Tr. 30.10-17) Indeed, Dr. Desposito volunteered that "I would dare say that Renee in many other intensive care units would not have survived." However ironic it may seem, plaintiffs point to the survival of their child as proof of damage. The gravamen of plaintiffs' complaint is that the doctrine of informed consent obligated Dr. Zarafu to inform them of the option of non-treatment. The parents expressed not only the intent that Renee be free from medical intervention, but that
she be allowed to die.*fn2 Cf., Matter of Conroy, 98 N.J. 321, 355 (1985). All counsel stipulate that there is no factual issue outstanding and submit on the issue of the legality of plaintiffs' presuppositions.
The deposition testimony of plaintiffs' expert, Dr. Desposito, reflects not only the subjective quality of the standard he postulates, but his uncertainty thereof from a legal point of view.
Q. Now, are you saying that because she [Dr. Zarafu] did not tell the parents that they had the option to withhold the consent or that they had an option to let the baby die, that thereby under the facts of this case she departed from the accepted standards of medical care required of neonatologists?
A. It's a yes -- I hear you.
Q. That's why we're here.
A. And I'm having difficulty in terms of responding to you. I would feel, again personally, that one has that obligation of outlining that. Is that, if I may, is that part of what's accepted in terms of informing consent (sic!) and I don't know how to answer from a legal point of view because I don't know what the legal, all of the legal aspects of the informed consent are.
A. . . . I think, I think that the informed consent process is not fully met unless all of the options are laid out.
Q. Since that was an overwhelming likelihood, I put it to you that the question becomes did the parents of Renee really have available to them the option of withholding consent so that their baby thereby could die sooner or later? Was that an option they really had?
A. I believe so, and the approach that I would take, again a personal one. (TR. 13:21 -- 14.11; 16:2 -- 4; 17:17 -- 24)
Dr. Desposito's opinion that "the informed consent process was substandard in this case" is more formally expressed in his report of May 30, 1984:
During the informed consent process, all available options should be discussed including the option not to have the procedure. Specifically, the shunt is only palliative; it would not correct any existent brain damage and to prevent the head from becoming so large that it would be an added burden to nursing care. It might also allow the baby to survive. The consequences of non-shunting would probably be death within a few months or the survival of an even more extensively damaged child with an enlarging, even grotesque head . . . such infants may ...