This is a medical malpractice case. The issue is whether a referring physician has a duty to obtain the patient's informed consent to surgery that is to be performed by another doctor. In other words, plaintiff claims that the referring doctors were under a duty to explain to her all of the material risks and options available to her, even though her surgery was to be performed by another physician.
The issue is before the court on a motion for involuntary dismissal (R.4:37-2(b)). For purposes of the motion, all of plaintiff's proofs will be accepted as true.*fn1
Plaintiff Lourdes Herrera was born in the Philippines.*fn2 She came to the United States as a tourist in 1978 and became a U.S. Citizen in 1985. In May 1987 she discovered what she described as a small ball in her right breast two inches below the nipple. At that time she did not seek any medical treatment.
In October 1987 she returned to the Philippines to visit family. On November 30, 1987, while in the Philippines, she went to a family friend, a surgeon, who removed the lump. A pathology report was prepared and a diagnosis was made of mucinous carcinoma of the right breast. According to plaintiff, the doctor told her she would require additional surgery which she assumed was the removal of her right breast. In other words, she would require a mastectomy.
Plaintiff wanted to consider other options to surgery. She decided to wait, however, until she returned to the United States to obtain additional medical advice as to whether or not additional surgery was necessary.
She returned to the United States in early March 1988. On March 14 she consulted with doctors Austin Gerber and Harry Sweeney, who are family practitioners, not experts in either oncology or surgery. Plaintiff did not have a physician who she saw regularly in the U.S., but her husband had been treated by doctors Gerber and Sweeney, and plaintiff's daughter, a nurse, had previously worked in their office. Both doctors examined her. She did not show them the pathology report from the Philippines at that time but did tell them the doctor in the Philippines told her she had cancer and needed additional surgery. Drs. Gerber and Sweeney referred plaintiff to Dr. Joseph A. Linsk,*fn3 a medical oncologist. Dr. Linsk examined plaintiff on March 21. He aspirated breast tissue from the area of the scar remaining from her operation in the Philippines. Plaintiff told Dr. Linsk that the doctor in the Philippines said she had cancer and additional surgery was necessary. Dr. Linsk did not give plaintiff the results of the tissue aspiration at that time.
She returned to Dr. Sweeney on March 23. Dr. Sweeney then called Dr. Linsk who told him during the telephone conversation that the aspirated tissue was healthy. Dr. Sweeney did not discuss with plaintiff any other test results, nor did he discuss with her the affects or consequences of mucinous carcinoma. During the office visit, plaintiff showed Dr. Sweeney the pathology report from the Philippines. After reviewing it, Dr. Sweeney told plaintiff that she required a mastectomy. He did not mention any other options to her. Plaintiff was not satisfied with the diagnosis and asked Dr. Sweeney if there were additional tests she could take. He sent her back to Dr. Linsk.
On March 25 plaintiff returned to Dr. Linsk. At that time, she showed him the Phillipine pathology report. Dr. Linsk took blood from her and sent her for mammography. He also told her, after reviewing the pathology report, that she required a mastectomy. He did not discuss with her any other options.
She returned to Dr. Sweeney on March 28. Dr. Sweeney told her the mammography results were good but she still required a mastectomy. He told her she was too young to die and needed the operation. No options were discussed. Plaintiff did not agree to have the mastectomy at that time, but she called Dr. Sweeney two days later and agreed to it. Dr. Sweeney told her that he would get her a good surgeon and referred her to doctor Morton Rosenblatt, a general surgeon.
On April 1, 1988, plaintiff met with Dr. Rosenblatt. She showed him the pathology report from the Philippines. He took her history and examined her. According to plaintiff, he did not discuss treatment options for mucinous carcinoma; rather, he told her she needed a mastectomy. She agreed to have the surgery and on April 11, 1988, a modified radical mastectomy was successfully performed.
At the close of plaintiff's case, defendants Linsk, Gerber and Sweeney move for involuntary dismissal. They argue that assuming no alternatives to surgery were discussed with plaintiff by any of the doctors, and further accepting as true that a reasonably prudent person would not have had the surgery if adequately informed, defendants Linsk, Gerber and Sweeney, as referring physicians who neither performed the surgery nor offered a course of treatment to plaintiff, had no duty to plaintiff once the referral was made.*fn4 The moving defendants submit that the duty to inform her of the material risks of, and options to, the surgery was that of Dr. Rosenblatt, who performed the surgery.
The standard of disclosure for a physician to a patient has been described as the "prudent patient" or "materiality of risk" standard. Largey v. Rothman, 110 N.J. 204, 212, 540 A.2d 504 (1988). In adopting the prudent patient standard, the Supreme Court in Largey emphasized the patient's right of self-determination. Id. at 214. The foundation for the physician's duty to disclose is founded on the idea that "it is the prerogative of the patient, not the physician, to determine for himself the direction in which his interests seem to lie." Id. (citing Canterbury v. Spence, 150 U.S. App. D.C. 263, 464 F.2d. 772, 781 (D.C. Cir. 1972), cert. den., 409 U.S. 1064, 93 S. Ct. 560, 34 L. Ed. 2d. 518 (1972)). The purpose behind the prudent patient standard is to allow a patient to decide for himself whether to undergo a specific course of treatment or surgery. The question is what a prudent person in the patient's position would have decided if suitably informed of all of the material ...