On appeal from the Superior Court, Law Division, Middlesex County.
Dreier, Shebell and Stern. The opinion of the court was delivered by Shebell, J.A.D. Stern, J.A.D., concurring.
Appellants, Yik Sang Cheung and Eleanora Cheung, his wife, brought an action against respondent, William F. Cunningham, M.D., who performed a surgical procedure on Yik Sang Cheung's spine which left him paralyzed. The case proceeded to the jury only on the theory of lack of informed consent. It returned a verdict of no cause for action after being charged that it was not only necessary that plaintiffs prove defendant inadequately informed plaintiffs of the risks of surgery but also that plaintiffs must prove that a reasonable person, if adequately informed, would have refused the surgery. We reverse and remand.
The issue is whether it is sufficient for the jury to find that the patient would not have consented to the surgery had the defendant informed the patient in accordance with the duty owed or whether it was error to advise the jury that it must make the additional finding that a prudent person in plaintiff's position would reasonably have declined the surgery. The first alternative is referred to as a subjective standard, whereas the second is labeled an objective standard. These are misnomers. The so-called subjective test is a pure cause in fact or "but for" test of proximate cause. It is the truly objective test. The test which has been labeled the objective test limits proximate cause, even where it can be proven that plaintiff's injury would not have occurred but for the failure of defendant to properly inform the patient of the risks of treatment, to those cases where plaintiff can also convince the factfinder that a reasonably prudent person would not have consented if adequately informed.
The fault of the objective standard is that plaintiff must for all practical purposes prove that any reasonable person placed in the same position would necessarily withhold consent even though plaintiff may have withheld consent and thereby have avoided injury. This is the antithesis of the doctrine of informed
consent which is intended to protect the individual patient's right to decline treatment.
In the case of Canterbury v. Spence, 464 F.2d 772, 790-791 (D.C.Cir.), cert. den. 409 U.S. 1064, 93 S. Ct. 560, 34 L. Ed. 2d 518 (1972), the United States Court of Appeals for the District of Columbia addressed the question of which standard was preferable. That court correctly pointed out that the problem revolves around the issue of causal connection, and that causality exists only when disclosure of significant risks would have resulted in a decision against it. 464 F.2d at 790. It noted that "the very purpose of the disclosure rule is to protect the patient against consequences which, if known, he would have avoided by foregoing the treatment." Ibid.
Nonetheless, the Canterbury court found that "a technique which ties the factual conclusion on causation simply to the assessment of the patient's credibility is unsatisfactory." Ibid. The court recognized that in the purist sense the issue of causation "is to be resolved according to whether the factfinder believes the patient's testimony that he would not have agreed to the treatment if he had known of the danger which later ripened into injury." Ibid. However, it found the difficulty to be that the patient's answer at the point in time it is elicited for litigation purposes "hardly represents more than a guess, perhaps tinged by the circumstance that the uncommunicated hazard has in fact materialized." Ibid. Therefore, it concluded that the causality issue was better resolved "in terms of what a prudent person in the patient's position would have decided if suitably informed of all perils bearing significance . . .;" or stated another way, could adequate disclosure reasonably "be expected to have caused that person to decline the treatment because of the revelation of the kind of risk or danger that resulted in harm. . . ." Id. at 791.
The concept of informed consent is based on a theory of liability grounded in negligence. Perna v. Pirozzi, 92 N.J. 446, 459 (1983). It is the duty "of a physician to disclose to a patient
information that will enable him to 'evaluate knowledgeably the options available and the risks attendant upon each' before subjecting that patient to a course of treatment." Id. at 459 (quoting Canterbury, 464 F.2d at 780). We have recognized generally that there must be proof "that the breach was a proximate cause of plaintiff's injuries; that is, that the patient would not have given consent to the procedure if full and adequate disclosure had been made." Nicholl v. Reagan, 208 N.J. Super. 644, 651 (App.Div.1986). The issue of a subjective versus an objective standard for determination of the proximate cause issue was considered in Skripek v. Bergamo, 200 N.J. Super. 620, 636-638 (App.Div.), certif. den. 102 N.J. 303 (1985), which endorsed the objective standard relying on the Canterbury rationale. The objective standard was also approved in Nicholl. 208 N.J. Super. at 651.
The trial judge here was guided by Civil Model Jury Charge § 5.28(E) which states: "[t]he question is not what the plaintiff would have decided if properly advised, but what a reasonably prudent person in plaintiff's position would have decided if fully informed." No decision of our Supreme Court has settled the question of the proper standard to be charged. Our Supreme Court however has stressed the importance of preserving the integrity of the patient's will when it comes to matters concerning the integrity of the patient's body. In re Conroy, 98 N.J. 321, 346-347 (1985). Speaking of the circumstances under which life sustaining treatment may be withheld from an incompetent, institutionalized, elderly patient, the Court noted that "it is the doctor's role to ...