dissenting.
[¶ 30] We have not had previous occasion to consider whether a physician who develops a treatment plan for a patient, which includes a referral for specific surgery and a return for completion of the treatment plan, owes a duty of informed consent to that patient.
[¶ 31] As the majority points out, a number of jurisdictions have concluded that a referring physician, who does not have an agency relationship with the surgeon; who does not participate in the surgery or treatment; or who does not retain any control over the treatment, does not have a duty to obtain a patient’s informed consent. I agree that to generally impose such a duty on a referring physician who practices general medicine would impose an “intolerable burden.” Herrara v. Atlantic City Surgical Group, 277 N.J.Super. 260, 649 A.2d 637, 640-41 (Law Div.1994) (quoting Stovall v. Harms, 214 Kan. 835, 522 P.2d 353, 359 (1974)). I am of the opinion, however, that where the facts indicate the referring physician has recommended a specific procedure, has the training to explain the results and options, and has retained control over the patient’s treatment, the physician is subject to a duty to obtain informed consent. See O’Neal v. Hammer, 87 Hawai'i 183, 953 P.2d 561, 565 (1998) (“[W]here a physician orders a specific procedure or otherwise retains control over the treatment of the patient, the physician is subject to a duty to obtain informed consent.”); see also Kashkin v. Mount Sinai Medical Center, 142 Misc.2d 863, 538 N.Y.S.2d 686 (N.Y.Sup.Ct.1989).
[¶ 32] The affidavits and depositions submitted in this case in support of the response to Dr. Herfendal’s motion for summary judgment reveal facts from which a fact-finder could infer retention of control by Dr. Herfendal over the treatment of the patient, Koapke.
[¶ 33] Koapke claims she went to Dr. Herfendal to have her teeth cleaned. He advised her that based on the condition of her teeth she should have all of her teeth pulled and dentures fabricated. His diagnosis of her was “severe periodontitis, dental caries and pericoronitis on lower right third molar.” Koapke states that Dr. Her-fendal did tell her she could have a partial extraction and partial dentures, but that in five years she would end up pulling all her teeth anyway. She then would need full-mouth dentures, and this would be more expensive. Dr. Herfendal does not dispute that this is what he told Koapke on September 3, 1998. He also does not dispute the decision was made at that appointment that Koapke would have all of her teeth pulled and would return to him for the fabrication and fitting of her dentures. The cost was discussed, and Koapke paid Dr. Herfendal one-half or $750 for the dentures. Dr. Herfendal states in his answers to interrogatories, “I referred Ms. Koapke to Dr. Koorbusch for evaluation and extractions. Ms. Koapke planned to return for denture fabrication.... On 9/29/98, my office finalized referral of Ms. Koapke to Dr. Koorbusch at Face & Jaw.”
[¶ 34] Koapke saw Dr. Koorbusch on September 29,1998. Dr. Koorbusch states in his answers to interrogatories that Dr. Herfendal referred Koapke to him for an “evaluation and eventual removal of all remaining teeth in preparation for full upper and lower dentures.” Dr. Koorbusch states he discussed with Koapke the “complications of surgery including but not limited to damage to the lower jaw nerve or persistent opening into the sinus as a result of tooth removal.” He states she was not interested in restoration of any teeth, but rather desired their removal and replacement with dentures. Koapke dis*216putes that Dr. Koorbusch discussed treatment options with her and states that he relied on Dr. Herfendal to have discussed “options” with her.
[¶ 85] On November 5, 1998, Koapke had full-mouth dental extraction. On November 6, 1998, Koapke was seen by Dr. Shannon of the Face & Jaw Surgery Center for follow up. On November 12, 1998, she was again seen by Dr. Shannon for follow up and found to be progressing in a satisfactory manner so she was referred back to Dr. Herfendal for “denture construction.”
[¶ 86] On November 19, 1998, she saw Dr. Herfendal and he took impressions to begin fabrication. He then told her that she did not have enough bone on the bottom and very little in the back top. Koapke states Dr. Herfendal told her she would need implants or her dentures would not stay in. Koapke states that if she had been told this was a possibility, she would not have made a decision to pull all of her teeth.
[¶ 37] On November 24, 1998, Dr. Her-fendal decided to refer Koapke to Dr. McMahon because he was concerned he could not meet her expectations. He refunded her $750.
[¶ 38] Koapke claims Dr. Herfendal never told her that because of her advanced periodontal disease, she may suffer bone loss with a full-mouth extraction to an extent her dentures would be difficult to secure and she may require implants. Dr. Herfendal states he did not recall discussing with Koapke some of the common problems with dentures. He states he did not discuss the possibility of implants with her. Koapke states Dr. Koorbusch did not discuss these risks with her either.
[¶ 39] Dr. Herfendal is a dentist. He has training and knowledge to fit and fabricate dentures. He developed a treatment plan which included a full-mouth dental extraction by Dr. Koorbusch and then the fitting of upper and lower dentures by him. He received half of the cost of the dentures before referring Koapke to Dr. Koorbusch. Dr. Herfendal’s office made the referral to Dr. Koorbusch. Dr. Koorbusch states that Dr. Herfendal referred Koapke “to me for evaluation and eventual removal of all remaining teeth in preparation for full upper and lower dentures.” Dr. Koorbusch examined her oral cavity, reviewed panoramic radiographs, and arranged for the surgical removal of all her remaining teeth. He explained to Koapke he would remove all of her teeth and the possible complications of surgery. After the full-mouth extraction, he referred her back to Dr. Herfendal for the fitting and fabrication of her dentures.
[¶ 40] A fact-finder could draw the inference that Dr. Herfendal was knowledgeable and had the training to fit and fabricate dentures; that he knew of the risk of bone loss and possibility of the need for implants; that he developed a treatment plan, which was to fit and fabricate full upper and lower dentures for Koapke; that the extraction of the teeth by Dr. Koorbusch was one step in the treatment plan; and that the referral was only to complete that step with the final step being the return to Dr. Herfendal for the fitting and fabrication of the dentures. Viewing the evidence in the light most favorable to Koapke, which we must do on a motion for summary judgment, a fact-finder could find that Dr. Herfendal is a qualified physician, who had control over the course of treatment of Koapke, who exposed her to the risk and must explain that risk. I would reverse and remand this case for further proceedings.
[¶ 41] Finally, I also agree with the Hawaii and New York courts that “this duty may be discharged if another physi*217cian procures an informed consent from the patient prior to surgery, thereby breaking the chain of causation leading to the referring physician.” O’Neal, 953 P.2d at 567; Shkolnik v. Hospital For Joint Diseases Orthopaedic Inst., 211 A.D.2d 347, 627 N.Y.S.2d 353, 355 (N.Y.App.Div.1995). Accordingly, the fact-finder must determine whether Dr. Koorbusch advised Koapke of the inherent risks of full-mouth extraction in light of her advanced periodontal disease and plan to wear dentures.
[¶ 42] I would reverse and remand because I believe there are genuine issues of material fact whether Dr. Herfendal retained control of the treatment of Koapke and owed a duty to obtain informed consent from her.
[¶ 43] WILLIAM A. NEUMANN, J., concurs.