On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. BER-L-5812-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, C.S. Fisher and Yannotti.
Defendants Alan N. Sedell, D.M.D., and Endodontic Associates, P.A., appeal from a judgment for two hundred fifty thousand dollars entered following the return of a jury verdict in plaintiff's favor. After reviewing the record in light of the contentions advanced on appeal, we reverse.*fn1
Defendant is a dentist who specializes in endodontics. On November 2, 2001, defendant performed an apicoectomy on plaintiff's left lower second bicuspid and left lower lateral incisor. Plaintiff alleged that a nerve was compromised during the course of this surgery, leaving her with numbness and a burning sensation. She sued for damages, alleging both that Dr. Sedell had been negligent in the manner in which he performed the surgery and that she had not given her informed consent to the procedure. The parties presented a number of expert witnesses. Plaintiff presented four, a neurologist, a general dentist, an endodontist and an oral surgeon. Defendant presented the testimony of a neurologist, an endodontist, and an oral surgeon.
Although plaintiff's counsel in his summation, and the trial court in its charge, presented to the jury plaintiff's two theories, that of negligence in the actual surgery and lack of informed consent, the verdict sheet submitted to the jury posed only a general question as to liability: "Did the defendant, Dr. Alan Sedell, deviate from accepted standards of endodontic dentistry?" The jury responded affirmatively to this question.
There are four required elements to establish a case for negligence based on the theory of lack of informed consent. To establish a prima facie case of lack of informed consent, a plaintiff must show "(1) the physician failed to comply with the [reasonably-prudent-patient] standard for disclosure; (2) the undisclosed risk occurred and harmed the plaintiff; (3) a reasonable person under the circumstances would not have consented and submitted to the operation or surgical procedure had he or she been so informed; and (4) the operation or surgical procedure was a proximate cause of plaintiff's injuries." [Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 549 (2002) (citations omitted).]
Under the first element, the reasonably prudent patient standard, plaintiff must establish that the defendant doctor should have known of the risk and that a reasonably prudent person would want to know about that risk. Largey v. Rothman, 110 N.J. 204, 211 (1988). Under the third element, plaintiff must establish that a reasonable person, armed with the requisite information, would not have had the procedure in question.
Having reviewed the record, it is clear to us that plaintiff failed to establish that third element of the cause of action. During her direct testimony, plaintiff's counsel posed the following question:
Q: If -- if you had the knowledge now that you have about apicolectomies and if someone had told you that it was a poor prognosis for success of the apicolectomy, would you have had the procedure?
Defendant's objection to this question was properly sustained. The test is not one of subjective hindsight, i.e, if you knew then what you know now, would you have acted in the same way. Largey v. Rothman, supra, 110 N.J. at 216. Rather, it is objective: that "a reasonably prudent person in plaintiff's position would have declined to undergo the treatment if informed of the risks that the defendant failed to disclose." Starozytnyk v. Reich, 377 N.J. Super. 111, 125 (App. Div. 2005) (quoting Howard, supra, 172 N.J. at 549); Battenfeld v. Gregory, 247 N.J. Super. 538, 551 (App. Div. 1991).
In the course of questioning plaintiff's expert, Dr. Linden, counsel posed the following question:
Q: Assuming, Doctor, that Dr. Sedell did not fully advise Ms. Kocher of those risks, would that be a ...