Citation. Safer v. Estate of Pack, 291 N.J. Super. 619, 677 A.2d 1188, 1996)
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Brief Fact Summary.
Safer (Plaintiff), the daughter of a man who died of colon cancer, was not warned by the doctor (Defendant) who treated her father that she was also at risk.
Synopsis of Rule of Law.
A physician’s duty is to warn the child of a patient of a genetic risk.
Facts.
Donna Safer’s (Plaintiff) father suffered a protracted bout with severe colon cancer. The cancer spread and killed him when Plaintiff was ten years old. Dr. Pack (Defendant) did not inform Plaintiff of her increased genetic risk for colon cancer. At thirty-six years old, Plaintiff was diagnosed with colon cancer. She lost most of her bowel and one ovary. Plaintiff sued, alleging professional negligence. The trial court dismissed her complaint and Plaintiff appealed.
Issue.
Is a physician’s duty is to warn the child of a patient of a genetic risk?
Held.
A physician’s duty is to warn the child of a patient of a genetic risk. Knowledge of a genetic risk is logically no different from knowledge of a risk of an infectious disease. As a matter of law, the same duty that exists to warn of the risk of infectious diseases should require a warning for genetic risks. Here, it was clear an increased risk of colon cancer existed for the Plaintiff. However, whether liability existed, and what damages are appropriate if so, are matters better decided at trial. Reversed.
Discussion.
To say that a legal duty exists in theory and to prove the breach of such a duty are very different propositions. The difficulty in showing a duty to warn of genetic risks in part hinges on proving the heightened risk level. If the risks are not well known, it is an unfair standard to apply a high-level duty.
