Kimmel v. Dayrit

HUMPHREYS, J.A.D.,

concurring.

I concur with my colleagues that the jury verdict for the defendant must be reversed and the case remanded for a new trial. Dr. Dayrit admittedly made a mistake when in 1989 he failed to obtain and review the CEA test report. His conduct cannot be squared with accepted medical practice. Further, the record would support a jury finding that his error caused Dr. Kimmel financial damage. See majority opinion at 356, 693 A.2d at 1299. Under these circumstances, the jury verdict of no deviation from accepted medical practice is a miscarriage of justice which must be reversed.

I do not agree with the majority’s decision sua sponte that plaintiff has a valid cause of action based on an informed consent theory. This theory was not presented at trial, see majority opinion at 350, 693 A.2d at 1295, nor was it presented to or argued before us. Ordinarily, we should not create issues. Certainly we should not create and then decide them without first hearing from the parties. See Ford v. Reichert, 23 N.J. 429, 435, 129 A.2d 439 (1957) (the parties have a right to be heard before a final determination is made as to issues not presented or argued).

Further, I question whether such a theory of liability is applicable here. The doctrine of informed consent is generally applied when a patient is about to undergo an operation. See Conklin v. Hannoch Weisman, 145 N.J. 395, 414, 678 A.2d 1060 (1996) (“... [T]he consent involved in medical malpractice usually relates to the invasion of a patient’s body.”). My colleagues apparently conclude that the informed consent doctrine should be extended to a physician who monitors a patient for the reappearance of cancer. They hold that as a matter of law a monitoring physician must inform patients about a test for cancer which some physicians consider useful even though the monitoring physician and other physicians may consider the test useless and harmful. Presumably, my colleagues conclude that the monitoring physician must obtain the patient’s consent not to use the test. Failure to obtain the patient’s consént not to use the test apparently renders the *361physician liable under the doctrine of informed consent without the necessity of medical evidence as to the proper standard of medical care.

I am uncertain whether the doctrine of informed consent does or should reach that far. See generally McGeshick v. Choucair, 9 F.3d 1229, 1233 (7th Cir.1993) (a physician is not under a duty to inform the patient of all possible methods of diagnosis); Reed v. Campagnolo, 332 Md. 226, 630 A.2d 1145, 1152-54 (1993) (a cause of action under a theory of lack of informed consent does not arise from a physician’s failure to inform a pregnant patient about the availability, risks and benefits of diagnostic testing which might reveal birth defects); Parris v. Sands, 21 Cal.App.4th 187, 25 Cal.Rptr.2d 800, 803 (1993) (“Generally, appellate courts have rejected a general duty of disclosure concerning a treatment or procedure a physician does not recommend____ [Plaintiffs [must proceed] ... under ordinary medical negligence.”); Vandi v. Permanente Medical Group, Inc., 7 Cal.App.4th 1064, 9 Cal. Rptr.2d 463, 467 (1992) (a physician is not liable under a lack of informed consent theory for failure to disclose a medical treatment or diagnostic procedure which the physician does not recommend; such a cause of action would place an “imprecise and unpredictable burden upon a physician”); but see Moore v. Preventive Medicine Medical Group, Inc., 178 Cal.App.3d 728, 223 Cal.Rptr. 859, 863 (1986) (a physician is under a duty to disclose all material information which would allow a patient to make a decision on whether to see a specialist).

No physician in this case testified that any such disclosure requirement was accepted medical practice in the period from 1984 to 1989. Before such a far reaching judicial decision is made, the parties should be given an opportunity to brief and argue the matter. See Ford v. Reichert, supra, 23 N.J. at 435, 129 A.2d 439.

Further, the majority’s newly spawned theory of liability should be considered in an appropriate factual context. A case such as this which is tried on one theory (a deviation from accepted medical standards) is not a good launching pad for the develop*362ment of a different and questionable theory of liability. This is especially true if the new theory may have far reaching consequences for the medical profession.

I also disagree with the majority’s ruling sua sponte that plaintiff must be permitted to present this new liability theory at the retrial. See majority opinion at 357, 693 A.2d at 1299. Whether this new issue must be permitted at the retrial has not been presented to us nor argued. Consequently, fair and proper jurisprudence mandates that we not determine this question.

In any event, this new theory of liability, judicially conceived nearly six years after suit was filed, should be subject to appropriate motions at the trial level. See Fisher v. Yates, 270 N.J.Super. 458, 467, 637 A.2d 546 (App.Div.1994); Du-Wel Products v. U.S. Fire Ins., 236 N.J.Super. 349, 364, 565 A.2d 1113 (App.Div.1989) (the trial court may refuse to permit “new claims and new parties to be added late in the litigation and at a point at which the rights of other parties will be prejudicially affected”), certif. denied, 121 N.J. 617, 583 A.2d 316 (1990).