On certification to the Superior Court, Appellate Division, whose opinion is reported at 310 N.J. Super. 572 (1998).
The opinion of the court was delivered by: Pollock, J.
This appeal presents the question whether the doctrine of informed consent requires a physician to obtain the patient's consent before implementing a non-surgical course of treatment. It questions also whether a physician, in addition to discussing with the patient treatment alternatives that the physician recommends, should discuss medically reasonable alternative courses of treatment that the physician does not recommend. We hold that to obtain a patient's informed consent to one of several alternative courses of treatment, the physician should explain medically reasonable invasive and noninvasive alternatives, including the risks and likely outcomes of those alternatives, even when the chosen course is noninvasive.
The Law Division concluded that plaintiff, Jean Matthies, could not assert a cause of action for breach of the duty of informed consent against defendant, Dr. Edward D. Mastromonaco. According to the court, a physician must secure a patient's informed consent only to invasive procedures, not to those that are noninvasive. Consequently, the court prevented Matthies from presenting evidence that Dr. Mastromonaco had not obtained her informed consent to use bed-rest treatment, which is noninvasive, instead of surgery. On the issue whether Dr. Mastromonaco had committed malpractice by failing to perform surgery on Matthies, the jury returned a verdict of no cause for action. The Appellate Division reversed, holding that the doctrine of informed consent applies even when the course of treatment implemented by the physician is noninvasive. 310 N.J. Super. 572 (App. Div. 1998) We granted Dr. Mastromonaco's petition for certification, 156 N.J. 406 (1998), and now affirm.
In 1990, Matthies was eighty-one years old and living alone in the Bella Vista Apartments, a twenty-three-story senior citizen residence in Union City. On August 26, 1990, she fell in her apartment and fractured her right hip. For two days, she remained undiscovered. When found, she was suffering from the consequences of the lack of prompt medical attention, including dehydration, distended bowels, and confusion. An emergency service transported her to Christ Hospital in Jersey City. She was treated in the emergency room and admitted to the intensive care unit.
One day after Matthies's admission, her initial treating physician called Dr. Mastromonaco, an osteopath and board-certified orthopedic surgeon, as a consultant. Dr. Mastromonaco reviewed Matthies's medical history, condition, and x-rays. He decided against pinning her hip, a procedure that would have involved the insertion of four steel screws, each approximately one-quarter inch thick and four inches long.
Dr. Mastromonaco reached that decision for several reasons. First, Matthies was elderly, frail, and in a weakened condition. Surgery involving the installation of screws would be risky. Second, Matthies suffered from osteoporosis, which led Dr. Mastromonaco to conclude that her bones were too porous to hold the screws. He anticipated that the screws probably would loosen, causing severe pain, and necessitating a partial or total hip replacement. Third, forty years earlier, Matthies had suffered a stroke from a mismatched blood transfusion during surgery. The stroke had left her partially paralyzed on her right side. Consequently she had worn a brace and essentially used her right leg as a post while propelling herself forward with her left leg. After considering these factors, Dr. Mastromonaco decided that with bed rest, a course of treatment that he recognized as "controversial," Matthies's fracture could heal sufficiently to restore her right leg to its limited function. He prescribed a "bed rest treatment," which consisted of complete restriction to bed for several days, followed by increasingly extended periods spent sitting in a chair and walking about the room.
Before her fall, Matthies had maintained an independent lifestyle. She had done her own grocery shopping, cooking, housework, and laundry. Her dentist of many years, Dr. Arthur Massarsky, testified that he often had observed Matthies climbing unassisted the two flights of stairs to his office. Matthies is now confined to a nursing home.
Matthies's expert, Dr. Hervey Sicherman, a board-certified orthopedic surgeon, testified that under the circumstances, bed rest was an inappropriate treatment. He maintained that bed rest alone is not advisable for a hip fracture unless the patient does not expect to regain the ability to walk. Essentially, he rejects bed rest except when the patient is terminally ill or in a vegetative state. Dr. Sicherman explained that unless accompanied by traction, the danger of treating a hip fracture with bed rest is that the fracture could dislocate. In fact, shortly after Matthies began her bed-rest treatment, the head of her right femur displaced. Her right leg shortened, and she has never regained the ability to walk. According to Dr. Sicherman, the weakness and porosity of Matthies's bones increased the likelihood of this bad outcome. Even defendant's expert, Dr. Ira Rochelle, a board-certified orthopedic surgeon, admitted that pinning Matthies's hip would have decreased the risk of displacement. He nonetheless agreed with Dr. Mastromonaco that Matthies's bones were probably too brittle to withstand insertion of the pins.
Dr. Mastromonaco's goal in conservatively treating Matthies was to help her "get through this with the least complication as possible and to maintain a lifestyle conducive to her disability." He believed that rather than continue living on her own, Matthies should live in a long-term care facility. He explained, "I'm not going to give her that leg she wanted. She wanted to live alone, but she couldn't live alone. . . . I wanted her to be at peace with herself in the confines of professional care, somebody to care for her. She could not live alone."
Matthies asserts that she would not have consented to bed rest if Dr. Mastromonaco had told her of the probable effect of the treatment on the quality of her life. She claims that Dr. Mastromonaco knew that without surgery she would never again walk. He did not provide her, however, with the opportunity to choose between bed rest and the riskier, but potentially more successful, alternative of surgery. Dr. Mastromonaco maintained that bed rest did not foreclose surgery at a later date.
A jury question existed whether Dr. Mastromonaco consulted either with plaintiff or her family about the possibility of surgery. The trial court permitted Dr. Mastromonaco to testify that he had discussed surgical alternatives with Matthies, but that she had refused them because of her concern about the risks of a blood transfusion. Matthies's daughter, Jean Kurzrok, who also spoke with Dr. Mastromonaco, testified that he had said that her mother did not need or want surgery. Kurzrok said that she told Dr. Mastromonaco, "Well, if she doesn't need it, she doesn't want it." According to Ms. Kurzrok, Dr. Mastromonaco never discussed the treatment alternatives or their probable outcomes. Instead, Dr. Kurzrok minimized the fracture, describing it as "just a little crack" that was "going to heal itself."
Matthies remained at Christ Hospital until October 1990. She was then discharged to the Andover Intermediate Care Center, a residential nursing home in which she received physical therapy. While at Andover, Matthies was attended by several physicians, including orthopedic surgeons. Those doctors continued the conservative treatment begun by Dr. Mastromonaco. Matthies also saw psychiatrists and was treated ...