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Largey v. Rothman

Decided: May 5, 1988.

JANICE LARGEY AND JOSEPH LARGEY, PLAINTIFFS-APPELLANTS,
v.
DONALD ROTHMAN, M.D., DEFENDANT-RESPONDENT



On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Justices Clifford, Handler, Pollock, Garibaldi and Stein. Opposed -- None.

Per Curiam

This medical malpractice case raises an issue of a patient's informed consent to treatment. The jury found that plaintiff Janice Largey had consented to an operative procedure performed by the defendant physician. The single question presented goes to the correctness of the standard by which the jury was instructed to determine whether the defendant, Dr. Rothman, had adequately informed his patient of the risks of that operation.

The trial court told the jury that when informing the plaintiff Janice Largey of the risks of undergoing a certain biopsy procedure, described below, defendant was required to tell her "what reasonable medical practitioners in the same or similar circumstances would have told their patients undertaking the same type of operation." By answer to a specific interrogatory on this point, the jurors responded that defendant had not "fail[ed] to provide Janice Largey with sufficient information so that she could give informed consent" for the operative procedure. On plaintiffs' appeal the Appellate Division affirmed in

an unreported opinion, noting that the trial court's charge on informed consent followed the holding in Kaplan v. Haines, 96 N.J. Super. 242, 257 (App.Div.1967), which this Court affirmed on the basis of the Appellate Division's opinion, 51 N.J. 404 (1968).

Plaintiffs argued below, and repeat the contention here, that the proper standard is one that focuses not on what information a reasonable doctor should impart to the patient (the "professional" standard) but rather on what the physician should disclose to a reasonable patient in order that the patient might make an informed decision (the "prudent patient" or "materiality of risk" standard). The latter is the standard announced in Canterbury v. Spence, 464 F.2d 772 (D.C.Cir.), cert. den., 409 U.S. 1064, 93 S. Ct. 560, 34 L. Ed. 2d 518 (1972). The Appellate Division rejected the Canterbury standard, not because it disagreed with that standard but because the court felt itself bound, correctly, by the different standard of Kaplan, which represents "the latest word" from this Court.

On plaintiffs' petition we granted certification, 104 N.J. 415 (1986), to address the correct standard for informed consent. We now discard Kaplan's "reasonable physician" standard and adopt instead the Canterbury "reasonable patient" rule. Hence, we reverse and remand for a new trial.

I

The narrow issue before us can be placed in satisfactory context by our adopting in pertinent part the Appellate Division's recitation of the facts. In the quoted passage as well as henceforth in this opinion, the word "plaintiff" refers to plaintiff Janice Largey.

In the course of a routine physical examination plaintiff's gynecologist, Dr. Glassman, detected a "vague mass" in her right breast. The doctor arranged for mammograms to be taken. The radiologist reported two anomalies to the doctor: an "ill-defined density" in the subareola region and an enlarged lymph node or nodes, measuring four-by-two centimeters, in the right axilla (armpit). The doctor referred plaintiff to defendant, a surgeon. Defendant expressed concern that the anomalies on the mammograms might be cancer and recommended

a biopsy. There was a sharp dispute at trial over whether he stated that the biopsy would include the lymph nodes as well as the breast tissue. Plaintiff claims that defendant never mentioned the nodes.

Plaintiff submitted to the biopsy procedure after receiving a confirmatory second opinion from a Dr. Slattery. During the procedure defendant removed a piece of the suspect mass from plaintiff's breast and excised the nodes. The biopsies showed that both specimens were benign. About six weeks after the operation, plaintiff developed a right arm and hand lymphedema, a swelling caused by inadequate drainage in the lymphatic system. The condition resulted from the excision of the lymph nodes. Defendant did not advise plaintiff of this risk. Plaintiff's experts testified that defendant should have informed plaintiff that lymphedema was a risk of the operation. Defendant's experts testified that it was too rare to be discussed with a patient.

Plaintiff and her husband, who sued per quod, advanced two theories of liability * * *. They claimed that they were never told that the operation would include removal of the nodes and therefore that procedure constituted an unauthorized battery. Alternatively, they claimed that even if they had authorized the node excision, defendant was negligent in failing to warn them of the risk of lymphedema and therefore their consent was uninformed. The jury specifically rejected both claims.

II

The origins of the requirement that a physician obtain the patient's consent before surgery may be traced back at least two centuries. See Slater v. Baker & Stapleton, 95 Eng.Rep. 860 (K.B.1767). The doctrine is now well-embedded in our law. In Schloendorff v. The Soc'y of the N.Y. Hosp., 211 N.Y. 125, 105 N.E. 92 (1914), Justice Cardozo announced a patient's right to be free of uninvited, unknown surgery, which constitutes a trespass on the patient: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages." 211 N.Y. at 129-30, 105 N.E. at 93. Earlier case law recognized that theories of fraud and misrepresentation would sustain a patient's action in battery for an unauthorized intervention. See State v. Housekeeper, 70 Md. 162, 16 A. 382 (1889); W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on The Law of Torts ยงยง 18, 32 (5th ed. 1984); see also Pratt v. Davis, 118 Ill.App. 161 (1905)

(physician who excised patient's uterus and ovaries without informing patient of the nature of the operation held liable for assault). Although that cause of action continues to be recognized in New Jersey, see Perna v. Pirozzi, 92 N.J. 446, 459-63 (1983) (operation on a patient by a surgeon to whom the patient has not given any consent constitutes a battery), there is no "battery" claim implicated in this appeal because the jury determined as a matter of fact that plaintiff had given consent to the node excision performed by Dr. Rothman.

Although the requirement that a patient give consent before the physician can operate is of long standing, the doctrine of informed consent is one of relatively recent development in our jurisprudence. It is essentially a negligence concept, predicated on the duty of a physician to disclose to a patient such information as will enable the patient to make an evaluation of the nature of the treatment and of any attendant substantial risks, as well as of available options in the form of alternative therapies. See In re Conroy, 98 N.J. 321, 346 (1985); ...


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