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Tyndall v. Zaboski

December 24, 1997


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

Approved for Publication December 27, 1997.

Before Judges Dreier and Wecker. The opinion of the court was delivered by Wecker, J.A.D.

The opinion of the court was delivered by: Wecker

The opinion of the court was delivered by


Plaintiffs Kim Tyndall and Terry Tyndall appeal from a summary judgment dismissing their complaint against defendant, Dr. R. F. Ledon *fn1 , a physician who performed a procedure known as endoscopic retrograde cholangio-pancreatography (ERCP) on Kim Tyndall. After undergoing the ERCP, she developed pancreatitis. Kim Tyndall testified at depositions that although she signed a consent form acknowledging generally that the doctor had explained the risks of the procedure and that she understood those risks, he never informed her that pancreatitis was one of those risks. Plaintiffs' complaint was dismissed because they failed to produce an expert report in support of a required element of the informed consent cause of action: that pancreatitis, the condition Kim Tyndall developed within a day after the procedure, was a risk of ERCP that was known to practitioners at the time. *fn2 We affirm.

On March 15, 1996, as a result of defendant's motion to fix a date certain for production of plaintiffs' expert reports, the court entered an order allowing plaintiffs 90 days to serve such a report. On October 11, 1996, the Judge heard argument on defendant's motion for summary judgment. At argument on the motion, the Judge told counsel:

Are you saying, you think there's an admission in there, but you haven't been able to find it yet . . .?

Plaintiffs were represented at argument by an attorney who admitted that he did not know the file but thought the defendant had admitted at his deposition that pancreatitis was a rare but known risk of the procedure. The motion Judge gave plaintiffs several days to submit the supporting portions of the deposition transcript, but they were not forthcoming. Instead, plaintiffs' attorney wrote to the court and enclosed what he described as a portion of "Harrison's Principles of Internal Medicine which states that Pancreatitis is a known attendant risk of ERCP." The page enclosed with the letter actually says, with respect to a Discussion of ERCP, "Pancreatitis occurs in less than 5 percent *fn3 of patients but is benign and self-limited."

The case law is clear. A plaintiff alleging lack of informed consent has the burden of producing expert testimony to establish that the risk cited was one that the defendant should have been aware of because it was known to the medical community at the time. An exception to that rule applies where the defendant concedes that the risk was known, but claims that the patient in fact was informed of that risk. As plaintiffs' attorney apparently discovered, defendant made no such admission.

We addressed virtually the same issue in Febus v. Barot, 260 N.J. Super. 322, 616 A.2d 933 (App. Div. 1992). There we affirmed summary judgment for the defendant physician on an informed consent claim because plaintiff failed to produce expert testimony that the surgical complication that she suffered was a "risk . . . of which the physician should have been aware, and that it was recognized within the medical community." Id. at 327. The plaintiff in Febus, like plaintiff here, relied on Largey v. Rothman, 110 N.J. 204, 540 A.2d 504 (1988) (adopting the "prudent patient" standard for determining whether a risk is material and therefore required to be disclosed) to support the proposition that she did not need an expert to establish a prima facie case. That is a mistaken proposition, as we explained in Febus :

the sufficiency of disclosure under the prudent patient standard requires that the disclosure be viewed through the mind of the patient, not the physician. Implicit in this shift of emphasis is the recognition that expert testimony is no longer required in order to establish the medical community's standard for disclosure and whether a physician failed to meet that standard.

In our view, however, the prudent patient standard does not always dispense entirely with the need for expert medical testimony in an informed consent case. Although, under this doctrine, no medical expert is required to prove that an undisclosed risk would have been material to the patient's consent, it must first be shown that the risk was one of which ...

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