[220 NJSuper Page 318] Plaintiff offered his hospital bill in evidence and the court reserved decision. Despite the increase in malpractice filings in
general and the common practice of adding a second count alleging lack of informed consent as an alternate cause of action, there is a dearth of court opinions in New Jersey and throughout the United States dealing with the measure of damages in an informed consent case. This opinion analyzes the appropriate measure of damages for the court to apply in this informed consent case.
The complaint in the instant case is couched in terms of malpractice. Those allegations in the complaint that refer to defendant doctor (oral surgeon) as having deviated from accepted medical standards in the performance of the operation were abandoned prior to the commencement of the trial. Plaintiff has proceeded to trial on the remaining allegations of deviation from accepted medical standards in negligently failing to obtain an informed consent to the operation. Defendant signed a standard hospital consent form at St. Elizabeth's Hospital which recites that plaintiff was informed of all risks of the proposed surgery, and consents to the operation. It is plaintiff's contention that defendant doctor did not, in fact, advise him of the risk of medial nerve damage inherent in the operation. Plaintiff has testified that if he had known that there was any risk in the proposed operation, he would have withheld his consent. Defendant, on the other hand, testified that he disclosed the risk of medial nerve damage to plaintiff. While defendant has no specific recollection of the conversation with plaintiff, he testified that it was and is his usual custom to notify all patients who undergo this type of operation of the risk of possible medial nerve involvement.
Plaintiff, 46 years old, had a ninth-grade education in Cuba prior to immigrating to the United States. He had had all of his teeth removed sometime in the past and complained of extreme difficulty in eating or speaking because there was no way for his dentures to adhere to the jawbone that was flat. His protruding lower jaw resulted in his upper and lower teeth not properly coming together, causing an abnormal bite. This condition was congenital. He also had suffered from a pre-existing
psychiatric problem which had resulted in marital difficulties prior to seeing defendant. As a result of visits to dentists to rectify what was an intolerable condition with respect to his chewing food and being able to speak, he was told that the only operation that would remedy the condition would be a surgical correction of mandibular prognathism and atrophy of the mandibular alveolar bone. On this basis, he came to see defendant oral surgeon who, after performing requisite x-rays and examination, concurred that this was what should be done and agreed to perform the operation.
The risk, which is the subject of this lawsuit, involves the medial nerve which lies in a channel of the jaw within which the contemplated surgery would be performed. Damage to the nerve need not result either from a touching or cutting of the nerve, but can be caused merely from the proximity of the nerve to the area of the operation. The damage can be caused by hematoma or scarring in the general area of the nerve.
It is undisputed by both parties' experts that the operation was properly performed and improved the conditions for which the operation was undertaken. However, there was resultant permanent sensory loss of the medial nerve extending from the midline of his chin off to the left, and protruding slightly above the left lateral portion of his lower lip. The area measures approximately three centimeters in length and one and a half to two centimeters in width. Plaintiff alleges that he has had post-operative marital problems because he does not want to be kissed by his wife because of the numbness, and that he is angry in general because he is left with the numbness above described.
Informed consent is a negligence concept in which in a medical-legal context, a physician has breached his duty to disclose a risk which a reasonable practitioner would have disclosed to a patient. If there is a finding of proximate cause, i.e., that the operation would not have taken place if the risk had been disclosed, then if the risk materializes and the patient
suffers resultant harm, the physician is liable.*fn1 The damage that defendant is liable for is the subject of this opinion.
In Perna v. Pirozzi, 92 N.J. 446, 459 (Sup.Ct.1983) (quoting Canterbury v. Spence, 464 F.2d 772, 780 (D.C.Cir.1972), cert. den. 409 U.S. 1064, 93 S. Ct. 560, 34 L. Ed. 2d 518 (1972)) the Court stated that informed consent "is a negligence concept predicated on the duty of the 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; citations omitted. See also Skripek v. Bergamo, 200 N.J. Super. 620, 633 (App.Div.1985), certif. den. 102 N.J. 303 (Sup.Ct.1985).
In the case at bar, it is conceded that there was no option of treatment available to the patient to alleviate his dental complaints other than the operation. The benefit that was sought by the patient to alleviate his dental condition could not be achieved without the collateral risk of damage to the medial nerve. The benefits sought and the collateral risk in this case are inseparable by the inherent nature of the operation.
The informed consent doctrine is the creation of equity, growing out of the doctor/patient relationship. The patient, ignorant of medicine, places his trust in the doctor to provide beneficial medical treatment. The patient does not know the relative merits of the options available or risks of treatment. The doctor is under a duty not only to obtain the patient's consent, but to inform the patient of any risks that a reasonable medical practitioner would disclose under the same or similar circumstances.
As stated in Canterbury v. Spence, supra, "the very purpose of the disclosure rule is to protect the patient against consequences
which, if known, he could have avoided by foregoing the treatment." 464 F.2d at 790. Therefore, since ". . . physicians are invariably acting in good faith and for the benefit of the patient,"*fn2 if the patient is ...