On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-1838-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Chambers.
Plaintiffs Judith Abramovitz and her husband Edmund Abramovitz,*fn1 appeal from a May 28, 2009 order granting summary judgment dismissing their complaint against defendant David Lamb. We affirm.
Plaintiff filed a complaint alleging medical malpractice and lack of informed consent. She sought treatment after a fall at work. She contended that defendant, an orthopedic doctor, failed to advise her until August 2002 that an MRI performed in February 2001 revealed a disc bulge at T1-2.*fn2 According to defendant, he did advise plaintiff about the disc bulge in February. However, he also testified that the disc bulge was "clinically irrelevant" because it was not causing, and could not have caused, the medical problems for which plaintiff sought treatment. By order filed March 29, 2007, plaintiff's medical malpractice claim was dismissed, because she did not present a sufficient affidavit of merit. Plaintiff has not appealed from that order.
Plaintiff's claim for lack of informed consent was not based on defendant's having subjected her to medical treatment without disclosing all pertinent medical information. Rather, plaintiff asserted that defendant's "failure to communicate the test results resulted in a handicapping of therapeutic decision making" by her treating chiropractor, delayed her chiropractic treatment, and resulted in her suffering unnecessary pain. At her deposition she also contended that failure to diagnose the disc bulge earlier resulted in her suffering "permanent nerve damage," although she admitted that her chiropractor had not specifically so opined.
In an oral opinion placed on the record on May 28, 2009, Judge Sumners concluded that plaintiff's complaint alleged a failure to properly diagnose and treat an alleged medical problem, rather than a failure to obtain her informed consent to a course of treatment. Relying on Eagel v. Newman, 325 N.J. Super. 467, 474-75 (App. Div. 1999), and Matthies v. Mastromonaco, 160 N.J. 26 (1999), Judge Sumners concluded that the facts plaintiff alleged did not give rise to a cause of action for lack of informed consent.
Having reviewed the entire record, we agree with Judge Sumners. Our analysis in Eagel, is entirely on point here:
We are satisfied that informed consent was an inapposite theory. . . . "[I]nformed consent is a negligence concept predicated on the duty of a physician to disclose to a patient information that will enable him to 'evaluate knowledgeably the options available and the risks attendant upon each' before subjecting that patient to a course of treatment." Thus the informed-consent basis of malpractice, as opposed to deviation from the applicable standard of care, rests not upon the physician having erred in diagnosis or administration of treatment but rather in the failure to have provided the patient with adequate information regarding the risks of a given treatment or with adequate information regarding the availability of alternative treatments and the comparative risks and benefits of each.
Patently, neither explanation of the risks of a proposed treatment nor explanation of the comparative risks and benefits of available options is what this case is all about.
[Eagel, supra, 325 N.J. Super. at 474-75 (citations omitted).]
As in Eagel, "[t]he crux of plaintiff's claim against defendant is that he did not appreciate the seriousness of [her] condition, [and] he did not respond appropriately to it." Id. at 475. That claim states a cause of action for deviation from the standard of orthopedic care, which ...