This is a medical malpractice case. Plaintiff contends that she consented to a total abdominal hysterectomy and left salpingo -- oophorectomy on September 7, 1982 without having been fully and properly informed by her obstetrician/gynecologist.*fn1 Absent emergency, the performance of a surgical procedure by a physician without first obtaining the effective consent of a competent adult, constitutes professional negligence. See Perna v. Pirozzi, 92 N.J. 446 (1983); John F. Kennedy Mem. Hosp. v. Heston, 58 N.J. 576 (1971); Skripek v. Bergamo, 200 N.J. Super. 620 (App.Div.1985).
On August 10, 1982, plaintiff was presented to defendant Dr. Mandell, a board certified obstetrician/gynecologist, as a 45-year-old, sterile woman with symptoms of heavy and prolonged menstrual bleeding and abdominal pain. She had been referred to defendant by her general physician. Examination disclosed a uterus comparable in size to a 12- to 14-week pregnancy, or 3-
to 4-times larger than normal. Pre-operative blood studies revealed anemia, later identified as hypochronic microcytic, due to iron deficiency commensurate with heavy and prolonged bleeding. The uterus was fibroid meaning irregular and filled with multiple myomatous tumors.*fn2
Mrs. Reaves testified at trial that she was given no information by Dr. Mandell as to the risks of the operation, nor of any course of treatment except a hysterectomy, nor was she told what would be the likely result of not treating the condition. Dr. Hutchins, testifying for plaintiff, opined that the failure of Dr. Mandell, to advise his patient that a hysterectomy carried with it a risk of sexual dysfunction and premature menopause, and that his failure to advise of possible alternative treatment therapy through hormone therapy, iron supplements and/or a dilation and curettage (D & C), was a deviation from accepted standards of medical practice.
Dr. Mandell conceded that no warning of the kind described by Dr. Hutchins were given, nor was any less intrusive management discussed. He explained that there was no alternative therapy to a hysterectomy for a patient, like plaintiff, presenting with severe and prolonged bleeding from fibroids. There was no need, he contended, to discuss menopausal symptoms, libido loss or depression because those conditions are not known to result when ovarian tissue is left behind. Dr. Morrison, testifying for defendant, refuted the testimony of Dr. Hutchins. He found no deviation from accepted medical practice on the part of Dr. Mandell. He also opined that, given Mrs. Reaves' problems, failure to perform a hysterectomy would have been medical negligence. Dr. Morrison did agree with Dr. Hutchins that a surgeon has a duty to tell his patient about the
potential risks of the operation, the alternatives of it and the result, and the probable result of not treating the condition.
A physician who intends to perform a surgical procedure is under an obligation to explain the operation to the patient and to disclose the danger incident to it in order to permit the patient to make an intelligent decision to consent, or not to consent. Informed consent -- "is a negligence concept predicated on the duty of a physician to disclose to a patient information that will enable him [her] to evaluate knowledgeably the options available and the risks attendant upon each before subjecting that patient to a course of treatment." Perna v. Pirozzi, supra, 92 N.J. at 459.
Dr. Mandell could not recall the specifics of any particular conversation with plaintiff. From reference to his office chart, he was sure that he recommended the hysterectomy during Mrs. Reaves' office visit on August 10, 1982. He had no independent or refreshed recollection of what he told her specifically about the risks, dangers, or benefits associated with the proposed surgery. Based on a routine developed over a period of 15 years, he was prepared to testify about the information which he invariably gave to patients who presented a fibroid uterus. The court called for a hearing out of the presence of the jury. Evid.R. 8(1).
Before the court alone, Dr. Mandell stated that he had performed approximately 1000 hysterectomies as of August 10, 1982. Out of that number perhaps 50 women presented a fibroid uterus, 12 to 14 weeks in size, with complaints of heavy and prolonged bleeding as did Mrs. Reaves. In such cases, Dr. Mandell testified his recommendation is always a hysterectomy. Invariably, he asserted, he tells his patient that he has made a diagnosis of a ...