(dissenting).
I respectfully dissent. This case highlights the conflict between a doctor’s self-interest in his ability to continue the practice of medicine and the patient’s right to full information when determining whether to consent to treatment. In affirming the trial court’s summary dismissal of T.M.W.’s negligent nondisclosure and battery claims, I believe the court has misapplied the laws of negligent nondisclosure and battery and ignored the patient’s rights. In ignoring the patient’s rights, the court excludes from “the decision-making process the most critical participant — the patient.” Estate of Behringer v. Medical Center at Princeton, 249 N.J.Super. 597, 592 A.2d 1251, 1278 (Ct. Law Div.1991).
“[A] failure by a physician to disclose a risk that may arise in the course of a medical procedure or treatment constitutes negligence.” Kohoutek v. Hafner, 383 N.W.2d 295, 299 (Minn.1986). When we first recognized the negligent nondisclosure claim, in Cornfeldt v. Tongen, 262 N.W.2d 684, 701 (Minn.1977) (Cornfeldt I), we declined to provide a definite standard for the scope of risks subject to disclosure. Instead, we advanced two rules that were subject to later refinement: physicians had a duty to disclose (1) risks of death or serious bodily harm and (2) risks that would be disclosed by a skilled practitioner of good standing under similar circumstances. Id. at 702 (quoting Cobbs v. Grant, 8 Cal.3d 229, 104 Cal.Rptr. 505, 515, 502 P.2d 1, 11 (1972)). At the time, we felt those rules adequately insured patients would receive enough information to allow them to exercise their right to self-determination without placing unreasonable disclosure requirements on physicians. Id. at 701-02.
The rules were refined three years later when Cornfeldt was again before the court. In Cornfeldt v. Tongen, 295 N.W.2d 638, 640 (Minn.1980) (Cornfeldt II), we broadened and defined the risks which physicians have a duty to disclose to their patients:
[To make out a claim for negligent nondisclosure, the plaintiff must] show a duty to disclose the risk ⅜ * ⅜ by evidence establishing that a reasonable person in what the physician knows or should have known to be the patient’s position would likely attach significance to that risk * * ⅜ in formulating his decision to consent to treatment.
*563Id. We footnoted the following explanation of this rule:
To the extent that our prior opinion suggests that a physician’s duty to disclose extends only to significant risks, i.e., death or serious harm, it is hereby modified. Further consideration of the standard of disclosure has led us to the conclusion that the above-stated objective standard accommodates professional competence and patient self-determination.
Id. at n. 2 (emphasis added). We clearly intended to broaden the rule to require physicians to disclose not only risks of death or serious bodily harm, but any risk, regardless of the medical profession’s opinion of it, that a reasonable patient in the plaintiffs position would find significant.
One year later, in Kiniken v. Heupel, 305 N.W.2d 589, 595 (Minn.1981), we indicated that the risks subject to mandatory disclosure include (1) risks of death or serious bodily harm which are of significant probability, (2) risks which a skilled practitioner of good standing in the community would reveal, and (3):
[T]o the extent a doctor is or can be aware that his patient attaches particular' significance to risks not generally considered by the medical profession serious enough to require discussion with the patient, these too must be brought out. In determining whether risks of particular importance to the patient existed and whether his physician should have been aware of their importance, a jury must look to what a reasonable person in what the physician knows or should have known to be the plaintiffs position would consider significant when contemplating [the procedure].
As the court itself notes, “[a] peculiar or unfounded fear * ⅜ ⅜ on [plaintiffs] part might, if anything, require [defendant] to devote more time discussing its probability with her * * *." Op. at 561 (quoting Kinikin, 305 N.W.2d at 595). The reasoning behind this rule is obvious: patients not only have the right to information about actual and substantial risks to their health, but they also have the right to information about risks they consider personally important to their health. In the negligent nondisclosure context, the patient’s fear for her safety need only have been subjectively reasonable. Thus, the patient’s “peculiar” fears, when the physician knows or should know of them, create a duty of disclosure on the physician regarding those fears. Kinikin, 305 N.W.2d at 595. The heightened burden this places on physicians insures that the patient receives enough information to meaningfully exercise the right to self-determination in matters of medical treatment. See, e.g., Estate of Behringer v. Medical Center at Princeton, 249 N.J.Super. 597, 592 A.2d 1251, 1278 (Ct.Law Div.1991).
Here, it is evident that there is an issue of fact for the jury as to whether Benson should have known T.M.W. attached particular significance to the risk of disease transmission from his open and weeping wounds. It is equally evident that the jury should decide whether a reasonable person, in her position, would have shared her fear.
To prevail, however, a plaintiff must also prove proximate cause: “first, that had a reasonable person known of the risk he would not have consented to treatment; and second, that the undisclosed risk materialized in harm.” Kinikin, 305 N.W.2d at 595. Both the trial court and this court conclude that T.M.W. is unable to meet the second element of proximate cause.
With regard to the first element, there is an issue of fact as to whether a reasonable person aware of the risk would have consented to the gynecological examinations. Even if it was common knowledge among medical professionals that the risk of HIV transmission under the circumstances presented here was low, it probably was not common knowledge among the general public. Further, the fact that there was a low risk of transmission does not mean that there was no risk. Despite the low risk, the severe consequences of transmittal might have caused a reasonable person to seek treatment from another physician. Thus, a jury could conclude that a reasonable person, informed of the risk of HIV transmission, would not have consented to the treatment.
With regard to the second element of proximate cause,, T.M.W. has raised a jury ques*564tion as to whether the undisclosed risk of transmission materialized in harm. It has been the law in Minnesota since at least 1981 that a physician must disclose risks of treatment which he knows or should know are considered significant by the patient, even if the physician and other medical professionals consider the risk insignificant. Kinikin, 305 N.W.2d at 595. The harm avoided by such disclosure is emotional distress on the part of the patient — either because the physician explains away the cause of worry, or because the patient does not consent to the treatment. Here, emotional distress is precisely the harm T.M.W. claims she suffered because of Benson’s nondisclosure. Thus, I believe it was error to affirm the trial court’s grant of summary judgment dismissing T.M.W.’s negligent nondisclosure claim.
“[A] claim of battery lies against a physician who performs a medical procedure on a patient without his or her consent.” Kohoutek v. Hafner, 383 N.W.2d 295, 298 (Minn.1986). Even where the physician has apparently gained consent, however, “[ujnder some circumstances * * * the patient’s consent can be vitiated.” Id. at 299. See W. Page Keeton, et al., Prosser and Keeton on Torts § 18, at 114 (5th ed. 1984) (noting consent can be void, for example, where there is incapacity, coercion, mistake, or fraud).
One such circumstance is when the consent is obtained through misrepresentation or fraud. Restatement (Second) of Torts § 892B(2) (1977) provides:
If the person consenting to the conduct of another is induced to consent by a substantial mistake concerning the nature of the invasion of his interests or the extent of the harm to be expected from it and the mistake is known to the other or is induced by the other’s misrepresentation, the consent is not effective for the unexpected invasion or harm.
When T.M.W. consented to the gynecological examinations, she clearly did not anticipate any risk of HIV transmission. Nor did she anticipate suffering the emotional distress caused by her concern for contracting HIV from the examinations. It is a jury question as to whether T.M.W.’s consent to the gynecological examinations was induced by Dr. Benson’s misrepresentations concerning his health.
The court’s holding today, without discussing the issue, apparently forecloses a plaintiffs battery claim where the plaintiff consents to the touching due to a defendant’s misrepresentations.