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Largey v. Rothman

    Brief Fact Summary.

    Plaintiff went to Defendant, a surgeon, to inquiry into the mass in her breast and enlarged lymph nodes that a previous mammograph revealed. Plaintiff agreed to allow Defendant to conduct a biopsy, and during the biopsy, Defendant removed a piece of the mass and the nodes. Thereafter, Plaintiff developed lymphedema. Plaintiff brought suit claiming Defendant is liable for both negligence and battery. Plaintiff asserted that Defendant failed to inform her of all the risks. The trial court and the appellate court held in Defendant’s favor. Plaintiff appealed the issue of informed consent.

    Synopsis of Rule of Law.

    When determining whether one obtained informed consent prior to a medical procedure under New Jersey law, the New Jersey courts should apply the “prudent patient” standard.

    Facts.

    Janice Largey, Plaintiff, did a mammograph and became aware that there was a mass in her breast and enlarged lymph nodes. After this realization, Plaintiff met with a surgeon, Donald Rothman, Defendant. Defendant recommended that Plaintiff do a biopsy, and Plaintiff agreed. While conducting the procedure, Defendant removed a piece of the mass and the nodes. Both procedures proved nonthreatening. Nevertheless, about six weeks later, Plaintiff developed lymphedema, a swelling caused by poor drainage during the removal of her lymph nodes. Plaintiff brought suit against Defendant in a New Jersey court contending Defendant was liable for negligence and battery. The negligence claim was founded on Defendant’s failure to warn her about the probable risk of lymphedema and failure to obtain informed consent to remove the nodes. Defendant asserted a defense by claiming he was not required to disclose the risks because the risk of lymphedema was so small. The trial court instructed the jury that Defendant provided Plaintiff informed consent if he gave Plaintiff the same information that reasonable physicians under similar circumstances would have provided to patients undergoing the same procedure. The jury decided in Defendant’s favor. The appellate court affirmed and cited Kaplan v. Haines, 96 N.J. Super. 242 (App. Div. 1967), aff’d, 51 N.J. 404 (1968). Plaintiff appealed the issue of informed consent.

    Issue.

    Whether the New Jersey court’s should apply the “prudent patient” standard when determining whether one has received informed consent prior to the inception of the medical procedure.

    Held.

    Yes, the New Jersey court’s should apply the “prudent patient” standard when determining whether one has received informed consent prior to the inception of the medical procedure.

    Discussion.

    The doctrine of informed consent requires physicians to disclose relevant information about the treatment to allow the patient to make an informed decision about the treatment. The “professional” standard that was previously adopted by this Court was the majority rule before the 1972. Under the “professional” standard, the information the patient obtained was evaluated based on the information that a reasonable physician would have given to patients in similar circumstances. Further, multiple jurisdictions provided that the standard should be based on the prevailing medical custom in the specific community where the doctor is working. Nonetheless, the “prudent patient” standardwas established in1972, and this standard has been adopted by multiple jurisdictions. Under the “prudent patient” standard informed consent is evaluated by determining whether the plaintiff was informed of risks that a reasonable patient in a similar situation would likely deem important. Moreover, this standard obligates the physician to disclose material risks, such as the risks entailed by the proposed procedure, alternative treatments, and what would happen if the patient did nothing at all. The “prudent patient” standard is a more appropriate standard because it considers the significance of the patient’s self-determination in consenting to treatment. In contrast, the “professional” standard, provides the physician a substantial amount of discretion based on the particular physician or medical community. Therefore, Kaplan is overruled, the decision below is reversed, and the case is remanded for a new trial.


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