A doctor
must obtain the patient's informed consent before the doctor may treat or
operate on the patient.[3] The doctor has a duty to explain, in terms
understandable to the patient, what the doctor intends to do before subjecting
the patient to a course of treatment or an operation. The purpose of this legal requirement is to
protect each person's right to self-determination in matters of medical
treatment[4].
A doctor
has a duty to evaluate the relevant information and disclose all courses of
treatment that are medically reasonable under the circumstances.[5] In order to obtain the patient's informed
consent, the doctor must tell the patient not only about the alternatives that
the doctor recommends, but also about all medically reasonable alternatives
that the doctor does not recommend. A
doctor does not comply with the duty of informed consent by disclosing only the
treatment alternatives that the doctor recommends.[6] Accordingly, the doctor must discuss all
medically reasonable courses of treatment, including non‑treatment, and the
probable risks and outcomes of each alternative.[7] By not discussing these alternatives, the
doctor breaches the patient's right to make an informed choice and effectively
makes the choice for the patient.[8] The doctor has a duty to explain, in words
the patient can understand, all material medical information and risks. Medical information or a risk of a medical
procedure is material when a reasonable patient in the plaintiff's position
would be likely to attach significance to it in deciding whether or not to
submit to the treatment.[9]
A doctor is
responsible for any injuries suffered by the patient, if the doctor did not
adequately explain all medically reasonable courses of treatment, including non‑treatment,
in what the doctor knows or should know to be the patient's medical position or
condition. The doctor is not required to
disclose to the patient all the details of a proposed operation or treatment or
all the possible risks, no matter how small or remote.[10] The doctor is not required to communicate
those dangers known to the average person or those dangers the patient has
already discovered. Taking into account
what the doctor knows or should know to be the patient's need for information,
the doctor must disclose the medical information and risks which a reasonably
prudent patient would consider material or significant in making the decision
about what course of treatment, if any, to accept. Such information would generally include a
description of the patient's physical condition, the purposes and advantages of
the proposed surgery or treatment, the material risks of the proposed treatment
and the material risks if such surgery or treatment is not provided, as well as
the available options or alternatives that are medically reasonable under the
circumstances and the advantages and risks of each alternative.[11]
The
plaintiff must prove all of the following elements: (1) the defendant doctor
failed to give the plaintiff all of the information that a reasonable person in
the plaintiff's position would expect a doctor to disclose so that the
plaintiff might make an informed decision about the course of treatment; (2)
the undisclosed risk (of the treatment)/(of non-treatment) occurred;[12] (3) a reasonable person under the
circumstances of this case would not have consented to (or would have chosen to
undergo) the treatment or operation had he/she been so informed; [13] and (4) the course of treatment or operation
(or failure to operate or treat) was a proximate cause in producing plaintiff's
injuries or conditions.[14]
Although
the plaintiff's testimony may be considered on the question as to whether
he/she would have consented, the issue to be resolved is not what this
plaintiff would have done. You must
decide whether a reasonably prudent person would not have consented (or chosen
another course of treatment),[15]
if provided with material information which you find the doctor failed to provide
in this case.[16]
If,
however, you find that the defendant doctor gave all the information which a
reasonable patient in the plaintiff's position would expect to receive at the
time the consent was given, or that the undisclosed risk did not occur, or that
the information which was omitted or not disclosed would not have caused a
reasonably prudent patient to refuse consent to the procedure or operation, or
that the course of treatment or operation, or failure to operate or treat, was
not a proximate cause in producing the plaintiff's injuries or conditions, then
your verdict should be for the defendant on this issue.
Source: https://njcourts.gov/attorneys/civilcharges.html
[2] This charge
does not cover an emergency situation or the development of an unforeseeable
condition during surgery. Samoilov v.
Raz, 222 N.J. Super. 108 (App. Div. 1987).
[3] Largey v.
Rothman, 110 N.J. 204 (1988); see
also, Niemiera v. Schnieder, 114 N.J. 550 (1989). If the patient is an infant, a parent's
consent may not be required. See,
e.g., Youngs v. St. Francis Hosp., 205 Kan. Ct.
[5] "Physicians
have a duty to evaluate the relevant information and disclose all courses of
treatment that are medically reasonable under the circumstances." Matthies, 160 N.J. at 34.
[6] "Physicians
do not adequately discharge their responsibility by disclosing only the
treatment alternatives that they recommend." Matthies, 160 N.J. at 37.
[7] "For
consent to be informed, the patient must know not only of alternatives that the
physician recommends, but of all medically reasonable alternatives that the
physician does not recommend. Otherwise, the physician, by not discussing these
alternatives, effectively makes the choice for the patient. Accordingly, the physician should discuss the
medically reasonable courses of treatment, including non-treatment and their
attendant probable risks and outcomes." Matthies, 160 N.J.
at 38.
[8] "By not
telling the patient of all medically reasonable alternatives, the physician
breaches the patient's right to make an informed choice." Matthies, 160 N.J. at 39.
[10] Although under
Largey expert testimony cannot be used to establish the applicable
standard as to what information must be disclosed (with perhaps the one
exception noted in footnote 3) such testimony may be required or, at least,
admissible on the question of the degree to which a risk was or was not remote
or small. Largey v. Rothman, supra,
110 N.J. at 213‑214.
[12] As
appropriate.
[13] As
appropriate.
[14] As
appropriate.
[15] As
appropriate.
[16] Largey v.
Rothman, supra, 110 N.J.
at 215‑226. This paragraph covers the
issue of proximate cause regarding liability.
See also, Grasser v. Kitzis,
230 N.J. Super. 216 (App. Div. 1988).
Plaintiff must also show that the injuries for which compensation is
sought proximately resulted from the defendant's conduct. Garcia v. Meiselman, 220 N.J.
Super. 317 (Law Div. 1987), suggests a balancing test which has not yet
been approved or discussed by our appellate courts.
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