Howard v. Univ. of Med. & Dentistry, 800 A.2d 73 (N.J. 2002). · Go Syfert
Howard v. Univ. of Med. & Dentistry, 800 A.2d 73 (N.J. 2002). Cases Citing This Book View Copy Cite
313 citation events (313 in the last 25 years) across 23 distinct courts.
Treatment trajectory · 2002 → 2026 · click a year to view as-of
2002 2014 2026
Top citers, strongest first. 44 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Sentinel Insurance v. Monarch Med Spa, Inc. (2×) also: Cited as authority (quoted)
E.D. Pa. · 2015 · signal: see also · quote attribution · 2 verbatim quotes · confidence high
stripped to its essentials, plaintiffs claim alleging misrepresentations concerning credentials and experience is founded on lack of informed consent
discussed Cited as authority (rule) Jacqueline Studer v. Daniel J. Pyo, M.D.
N.J. Super. Ct. App. Div. · 2024 · confidence medium
The judge reasoned that although our Supreme Court's decision in Howard v. University of Medicine & Dentistry of New Jersey, 172 N.J. 537, 549 (2002), "did not involve an assessment of whether an AOM was required in an informed consent case," the Court explained in such cases, "the physician's negligence is in the inadequate disclosure and the A-1926-22 4 damages claimed derive from the harm to the patient caused by a procedure that would not have occurred if the disclosure had been adequate." The judge therefore rejected plaintiff's reliance on the common knowledge exception to the AOM requir…
discussed Cited as authority (rule) BRUTOSKY v. STINNER, D.C. (2×)
D.N.J. · 2023 · confidence medium
Med. & Dentistry of N.J., 800 A.2d 73, 79 (N.J. 2002) (alteration in original) (quoting Teilhaber v. Greene., 727 A.2d 518, 524 (N.J.
discussed Cited as authority (rule) LAVINE v. AMERICAN ACADEMY OF PEDIATRICS
D.N.J. · 2023 · confidence medium
Had they not been so fundamentally misled, they would never have consented to the procedure . . .” (Id. ¶ 52.) In its Motion, Defendant argues that Plaintiffs may not assert a fraud claim based on lack of informed consent because “New Jersey courts have repeatedly found that plaintiffs may not assert a fraud claim based on a lack of informed consent resulting from misrepresentations that occur pre-surgery.” (Moving Br. at 11.) Rather, “informed consent is a negligence concept predicated on the duty of a physician to disclose to a patient information that will enable him to evaluate kn…
discussed Cited as authority (rule) Miriam Rivera v. The Valley Hospital, Inc. (085992/085993/085994) (Bergen County and Statewide)
N.J. · 2022 · confidence medium
And although the draft consent form was never fully adopted and implemented, plaintiffs’ arguments regarding the lack of informed consent for the power morcellation procedure after the FDA Communication sound in ordinary negligence, not in actions taken with an “evil mind.” See Howard v. UMDNJ, 172 N.J. 537, 548 (2002) (“[I]nformed consent is ‘a negligence concept predicated on the duty of a physician to disclose to a patient information that will enable him to “evaluate knowledgeably the options available and the risks attendant upon each before subjecting that patient to a course…
discussed Cited as authority (rule) Miriam Rivera v. The Valley Hospital, Inc. (085992/085993/085994) (Bergen County and Statewide)
N.J. · 2022 · confidence medium
And although the draft consent form was never fully adopted and implemented, plaintiffs’ arguments regarding the lack of informed consent for the power morcellation procedure after the FDA Communication sound in ordinary negligence, not in actions taken with an “evil mind.” See Howard v. UMDNJ, 172 N.J. 537, 548 (2002) (“[I]nformed consent is ‘a negligence concept predicated on the duty of a physician to disclose to a patient information that will enable him to “evaluate knowledgeably the options available and the risks attendant upon each before subjecting that patient to a course…
examined Cited as authority (rule) Bindner v. Traub (3×) also: Cited "see"
D.N.M. · 2022 · confidence medium
Ct. App. 2006) (a lack of experience and more experienced practitioners nearby); Howard v. Univ. of Med. & Dentistry of N.J., 800 A.2d 73, 84-85 (N.J. 2002) (misrepresenting experience in the procedure); Johnson v. Kokemoor, 545 N.W.2d 495, 504-05, 510 (Wis. 1996) (misrepresenting experience and not disclosing more experienced providers nearby); Hidding v. Williams, 578 So. 2d 1192, 1196-98 (La.
cited Cited as authority (rule) SIMON v. GIANATIEMPO, M.D.
D.N.J. · 2022 · confidence medium
Mar. 13, 2017) (quoting Howard v. Univ. of Med. & Dentistry of N.J., 800 A.2d 73, 79 (N.J. 2002)).
discussed Cited as authority (rule) SHAWN LABEGA v. HETAL C. JOSHI, M.D. (L-3088-18, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED)
N.J. Super. Ct. App. Div. · 2022 · confidence medium
As plaintiff's counsel necessarily conceded at argument, it is not common "in medical malpractice/negligence cases to permit theories of breach of contract, third party beneficiary and negligence per se claims to be asserted where implicated parties were or are required by contract to abide by hospital policies, procedures and protocols, in addition to statutory obligations." As our Supreme Court has explained, "a patient generally has three avenues for relief A-3399-20 11 against a physician, namely, '(1) deviation from the standard of care . . .; (2) lack of informed consent; and (3) battery…
discussed Cited as authority (rule) JENNIFER DENNIS VS. ST. PETER'S UNIVERSITY HOSPITAL (L-2505-17, MIDDLESEX COUNTY AND STATEWIDE)
N.J. Super. Ct. App. Div. · 2021 · confidence medium
In reviewing such challenges, we "examine the charge as a whole, rather than focus on individual errors in isolation." Ibid. (quoting Toto, 196 N.J. at 141 ). "[A] patient has several avenues of relief against a doctor: (1) deviation from the standard of care (medical malpractice); (2) lack of informed consent; and (3) battery." Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 545 (2002) (citing Colucci v. Oppenheim, 326 N.J.
discussed Cited as authority (rule) DEBORAH HEART AND LUNG CENTER VS. VIRTUA HEALTH, INC. (L-1865-11, MERCER COUNTY AND STATEWIDE)
N.J. Super. Ct. App. Div. · 2019 · confidence medium
Doctors have no obligation to provide information unrelated to the "procedure, its substantial risks, and alternatives . . . ." Howard v. Univ. of Med. and Dentistry of N.J., 172 N.J. 537, 557 (2002) (finding doctors had no duty to detail their medical experience as part of the informed consent discussion); see also Blazoski v. Cook, 346 N.J.
discussed Cited as authority (rule) MICHAEL BUTTACAVOLI VS. UNIVERSAL DENISTRY, PA (L-0049-17, GLOUCESTER COUNTY AND STATEWIDE)
N.J. Super. Ct. App. Div. · 2019 · confidence medium
Accordingly, [t]o establish a prima facie case for medical negligence premised on a theory of liability for lack of informed consent, a plaintiff must show "(1) the physician failed to comply with the [reasonably-prudent- patient] standard for disclosure; (2) the undisclosed risk occurred and harmed the plaintiff; (3) a reasonable person under the circumstances would not have consented and submitted to the operation or surgical procedure had he or she been so informed; and (4) the operation or surgical procedure was a proximate cause of the plaintiff's injuries." [Howard v. Univ. of Med. & Den…
cited Cited as authority (rule) JUDY THORPE VS. JUSTIN SWIDLER, ESQ. (L-0274-17, MERCER COUNTY AND STATEWIDE)
N.J. Super. Ct. App. Div. · 2019 · confidence medium
Court Rules, cmt. 2.2.1 on R. 4:9-1 (2019) (citing Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 559-60 (2002)).
discussed Cited as authority (rule) REGINALD P. GAMBLE VS. PROGRESSIVE MOTION MEDICAL PRODUCT SOLUTIONS (L-4167-11, BERGEN COUNTY AND STATEWIDE)
N.J. Super. Ct. App. Div. · 2018 · confidence medium
We disagree. "[A] patient has several avenues of relief against a doctor: (1) deviation from the standard of care (medical malpractice); (2) lack of informed consent; and (3) battery." Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 545 (2002) (citing Colucci v. Oppenheim, 326 N.J.
discussed Cited as authority (rule) Alan Andersen v. Sohit Khanna and Iowa Heart Center (2×)
Iowa · 2018 · confidence medium
See, e.g. , Hales v. Pittman , 118 Ariz. 305 , 576 P.2d 493 , 499 (1978) (in banc) (noting the wrong in an informed-consent claim is not the operation itself but rather the failure to disclose, and requiring the unrevealed risk to materialize and cause harm); Howard , 800 A.2d at 79-80 (noting the informed-consent damages analysis involves comparison of the condition the patient would have been in if the patient had been informed and not consented to the risk with the condition the patient is in as a result of the risk's occurrence, but also noting the patient does not have to prove the physic…
cited Cited as authority (rule) NORMA S. EHRLICH VS. JEFFREY J. SOROKIN, M.D. (L-2850-13, CAMDEN COUNTY AND STATEWIDE)
N.J. Super. Ct. App. Div. · 2017 · confidence medium
Super. at 303 (quoting Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 545 (2002)).
discussed Cited as authority (rule) Christian Lewis v. Sheila D. Moore
11th Cir. · 2017 · confidence medium
Ctr., 387 Mass. 152 , 439 N.E.2d 240, 244 (1982); Reinhardt v. Colton, 337 N.W.2d 88, 95-96 (Minn. 1983); Hook v. Rothstein, 281 S.C. 541 , 316 S.E.2d 690, 704 (1984); Nickell v. Gonzalez, 17 Ohio St.3d 136 , 477 N.E.2d 1145, 1148 (1985); Smith v. Cotter, 107 Nev. 267 , 810 P.2d 1204, 1209 (1991); Bernard v. Block, 176 A.D.2d 843 , 575 N.Y.S.2d 506, 511 (1991); Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537 , 800 A.2d 73, 79-80 (2002); see also Cochran v. Wyeth, Inc., 3 A.3d 673, 680 (Pa. Super.
discussed Cited as authority (rule) Carter v. Pain Center
Ariz. Ct. App. · 2016 · confidence medium
Louis, L.L.C., 349 S.W.3d 327, 334 (Mo. 2011); Howard v. Univ. of Med. & Dentistry of New Jersey, 800 A.2d 73, 80 (N.J. 2002) (medical battery "is reserved for those instances where either the patient consents to one type of operation but the physician performs a substantially different one from that for which authorization was obtained, or where no consent is obtained"); Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn. 1998). ¶8 Likewise, medical battery also occurs when a physician performs a procedure in willful disregard of a patient's limited or conditional consent.
examined Cited as authority (rule) Innes Ex Rel. Innes v. Marzano-Lesnevich (3×) also: Cited "see"
N.J. · 2016 · confidence medium
Arising in a vast array of factual settings, fiduciary relationships are many: doctors to their patients; agents to their principals; partners to their other partners; corporate officers to their shareholders; brokers, including insurance, real estate, and securities brokers, to their clients; and public officials to their constituents.9 That list is just a 3 See Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 547 (2002) (noting fiduciary relationship between doctor to patient); Hirsch v. Schwartz, 87 N.J.
discussed Cited as authority (rule) Carter v. Pain Center of Arizona, P.C.
Ariz. Ct. App. · 2016 · confidence medium
Louis, L.L.C., 349 S.W.3d 327, 334 (Mo.2011); Howard v. Univ. of Med. & Dentistry of New Jersey, 172 N. J. 537, 800 A.2d 73, 80 (2002) (medical battery “is reserved for those instances where either the patient consents to one type of operation but the physician performs a substantially different one from that for which authorization was obtained, or where no consent is obtained”); Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn.1998). ¶ 8 Likewise, medical battery also occurs when a physician performs a procedure in willful disregard of a patient’s limited or conditional consent.
examined Cited as authority (rule) James R. Jarrell v. Richard A. Kaul, M.D. (072363) (4×) also: Cited "see, e.g."
N.J. · 2015 · confidence medium
The Court stated that [i]n certain circumstances, a serious misrepresentation concerning the quality or extent of a physician’s professional experience, viewed from the perspective of the reasonably prudent patient assessing the risks attendant to a medical procedure, can be material to the grant of intelligent and informed consent to the procedure. [Id, at 555, 800 A.2d 73 (citing 1 Dan B.
examined Cited as authority (rule) Jim P. Benge, M.D. and Kelsey-Seybold Medical Group PLLC v. Lauren Williams (3×) also: Cited "see"
Tex. App. · 2015 · confidence medium
Howard v. Univ. of Med. & Dentistry, 800 A.2d 73, 77-78 (N.J.2002).
discussed Cited as authority (rule) Wissell v. Fletcher Allen Health Care, Inc.
Vt. Super. Ct. · 2014 · confidence medium
In Howard v. Univ. of Med. & Dentistry of N.J., prior to the surgery, the patient’s wife had asked the defendant surgeon whether he was board-certified, to which the defendant responded in the affirmative. 172 N.J. 537, 543 (2002).
discussed Cited as authority (rule) Ike J. White, III v. David A. Beeks, M.D.
Tenn. Ct. App. · 2013 · confidence medium
See, e.g., Funke v. Fieldman, 212 Kan. 524 , 512 P.2d 539, 548 (1973); Scott v. Bradford, 606 P.2d 554, 559 (Ok. 1979); Hales v. Pittman, 118 Ariz. 305 , 576 P.2d 493, 499 (1978); Harnish v. Children’s Hospital Medical Center, 387 Mass. 152 , 439 N.E.2d 240, 244 (1982); Reinhardt v. Colton, 337 N.W.2d 88, 95-96 (Minn. 1983); LaCaze v. Collier, 434 So.2d 1039, 1048 (La. 1983); Nickell v. Gonzalez, 17 Ohio St.3d 136 , 477 N.E.2d 1145, 1148 (1985); Smith v. Cotter, 107 Nev. 267 , 810 P.2d 1204, 1209 (1991); Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537 , 800 A.2d 73, 79-80 (2002); s…
discussed Cited as authority (rule) Shortino v. Buna
N.J. Super. Ct. App. Div. · 2012 · confidence medium
A As the Court has held, a patient in a medical negligence action has three avenues of relief against a physician: “(1) deviation from the standard of care (medical malpractice); (2) lack of informed consent; and (3) battery.” Howard, v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 545, 800 A.2d 73 (2002).
discussed Cited as authority (rule) Cochran v. Wyeth, Inc.
Pa. Super. Ct. · 2010 · confidence medium
See, e.g., Funke v. Fieldman, 212 Kan. 524 , 512 P.2d 539, 548 (1973); Scott v. Bradford, 606 P.2d 554, 559 (Ok.1979); Hales v. Pittman, 118 Ariz. 305 , 576 P.2d 493, 499 (1978); Hamish v. Children’s Hospital Medical Center, 387 Mass. 152 , 439 N.E.2d 240, 244 (1982); Reinhardt v. Colton, 337 N.W.2d 88, 95-96 (Minn.1983); LaCaze v. Collier, 434 So.2d 1039, 1048 (La.1983); Nickell v. Gonzalez, 17 Ohio St.3d 136 , 477 N.E.2d 1145, 1148 (1985); Smith v. Cotter, 107 Nev. 267 , 810 P.2d 1204, 1209 (1991); Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537 , 800 A.2d 73, 79-80 (2002); see a…
examined Cited as authority (rule) Willis v. Bender (4×)
10th Cir. · 2010 · confidence medium
The above cases utilize a reasonable patient standard, looking to whether a reasonable person in the patient’s position would consider the information material to his decision as to whether to agree to allow the physician to perform the surgery upon him. 7 See Moore, 271 Cal.Rptr. at 150 , 793 P.2d 479 ; Barriocanal, 697 A.2d at 1172-73 ; Hidding, 578 So.2d at 1195 ; Goldberg, 912 A.2d at 716 ; Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537 , 800 A.2d 73, 83 (2002); Johnson, 545 N.W.2d at 501-02 .
examined Cited as authority (rule) Guinan v. A.I. Dupont Hospital for Children (4×) also: Cited "see", Cited "see, e.g."
E.D. Pa. · 2009 · confidence medium
C. § 6801(7) (defining medical negligence as “any tort or breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider to a patient”); Howard, 800 A.2d at 81-82 (disallowing cause of action for fraud where it “would circumvent the requirements for proof of both causation and damages imposed in a traditional informed consent setting”).
discussed Cited as authority (rule) Hinman v. Russo
3rd Cir. · 2008 · confidence medium
In New Jersey, claims of medical malpractice and failure to obtain informed consent are “sub-groups of a broad claim of medical negligence.” How *139 ard v. Univ. of Med. and Dentistry of N.J., 172 N.J. 537 , 800 A.2d 73, 77 (2002) (quoting Teilhaber v. Greene, 320 N.J.Super. 453 , 727 A.2d 518, 523 (App.Div.1999)).
examined Cited as authority (rule) Murphy v. Implicito (3×) also: Cited "see"
N.J. Super. Ct. App. Div. · 2007 · confidence medium
In Howard, supra, the Supreme Court addressed whether the plaintiff's claim was properly cognizable as one for battery or one for lack of informed consent where the doctor misrepresented his credentials, which the plaintiff alleged induced him to proceed with a surgery he would not otherwise have undergone. 172 N.J. at 545-46, 556 , 800 A. 2d 73 .
examined Cited as authority (rule) Mole v. Jutton (3×)
Md. · 2004 · confidence medium
McGrady v. Wright, 151 Ariz. 534 , 729 P.2d 338, 341 (1986); 7 Cobbs v. Grant, 8 Cal.3d 229 , 104 Cal.Rptr. 505 , *39 502 P.2d 1, 7-8 (1972); Kennis v. Mercy Hospital Medical Center, 491 N.W.2d 161, 164 (Iowa 1992); Paul v. Lee, 455 Mich. 204 , 568 N.W.2d 510, 514 (1997), rev’d on other grounds, Smith v. Globe Life Ins., 460 Mich. 446 , 597 N.W.2d 28 (1999); Kohoutek v. Hafner, 383 N.W.2d 295, 298-300 (Minn.1986); Baltzell v. Van Buskirk, 752 S.W.2d 902, 906 (Mo.Ct.App.1988); Howard v. University of Medicine and Denistry of New Jersey, 172 N.J. 537 , 800 A.2d 73, 78-79 (2002); Dries v. Grego…
cited Cited as authority (rule) Hayes v. Federal Bureau of Prisons
3rd Cir. · 2003 · confidence medium
Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537 , 800 A.2d 73, 80-81 (N.J.2002) (citing Perna v. Pirozzi, 92 N.J. 446 , 457 A.2d 431, 439 (N.J. 1983)).
discussed Cited "see" P.C. v. Driscoll
S.D.N.Y. · 2025 · signal: see · confidence high
See Howard v. Univ. of Med. & Dentistry of N.J., 800 A.2d 73, 77 (N.J. 2002) (“[I]t is now clear that deviation from the standard of care and failure to obtain informed consent are simply sub-groups of a broad claim of medical negligence.” (quoting Teilhaber v. Greene, 727 A.2d 518, 523 (N.J.
cited Cited "see" THE ESTATE OF ANNA MARIE CYCKOWSKI, ETC. VS. JAY STYLMAN, M.D. (L-7062-13, ESSEX COUNTY AND STATEWIDE)
N.J. Super. Ct. App. Div. · 2017 · signal: see · confidence high
See Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 555-57 (2002).
discussed Cited "see" Thomas v. Care Plus of New Jersey, Inc. (2×)
3rd Cir. · 2012 · signal: see · confidence high
See Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537 , 800 A.2d 73, 78 (2002).
examined Cited "see" Liguori v. Elmann (6×)
N.J. · 2007 · signal: see · confidence high
See Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537 , 544 n. 1, 800 A.2d 73 (2002).
examined Cited "see" Wlosinski v. Cohn (3×)
Mich. Ct. App. · 2006 · signal: see · confidence high
See Howard v. Univ. of Medicine & Dentistry of New Jersey, 172 N.J. 537, 553-554 , 800 A.2d 73 (2002), and the cases it cites.
discussed Cited "see, e.g." Margaret Lofgren, both individually and as administrator of the Estate of Louden P. Lofgren v. Thomas Simpson, M.D., and ENT Medical Services, P.C.
Iowa · 2026 · signal: see also · confidence medium
See id.; Plowman v. Fort Madison Cmty. Hosp., 896 N.W.2d 393 , 403– 04 (Iowa 2017) (relying on precedent equating the failure to disclose material fetal risks with the element of proximate cause in medical malpractice actions); Pauscher, 408 N.W.2d at 360 (“Disclosure of the risk would have led a reasonable patient in plaintiff’s position to reject the medical procedure or choose a different course of treatment . . . .”); see also Howard v. Univ. of Med. & Dentistry of N.J., 800 A.2d 73, 79 (N.J. 2002) (“A plaintiff seeking to recover under a theory of lack of informed consent also m…
discussed Cited "see, e.g." Donna Cooper v. Dr. Mason Wesley Mandy (2×)
unknown court · 2020 · signal: see, e.g. · confidence medium
See, e.g., Howard v. Univ. of Med. & Dentistry of N.J., 800 A.2d 73, 84 (N.J. 2002) (holding claim that misrepresentations of a physician’s professional experience induced patient to consent to procedure was an informed consent claim); Franz v. Ashland Hosp.
examined Cited "see, e.g." Starozytnyk v. Reich (4×)
N.J. Super. Ct. App. Div. · 2005 · signal: see also · confidence low
Id. at 460-461 , 457 A.2d 431 ; see also Howard, supra, 172 N.J. at 551 , 800 A.2d 73 .
discussed Cited "see, e.g." Linquito v. Siegel (2×)
N.J. Super. Ct. App. Div. · 2004 · signal: see, e.g. · confidence low
See, e.g., Howard v. Univ. of Med. and Dentistry of New Jersey, 172 N.J. 537, 554-59 , 800 A. 2d 73 (2002); Sgro v. Ross, 166 N.J. 338, 339 , 765 A. 2d 745 (2001); Matthies, supra, 160 N.J. at 29 , 733 A. 2d 456 ; Baird, supra, 155 N.J. at 70-71, 713 A. 2d 1019 ; Largey v. Rothman, 110 N.J. 204, 211-15 , 540 A. 2d 504 (1988); Perna v. Pirozzi, 92 N.J. 446, 459-65 , 457 A. 2d 431 (1983).
discussed Cited "see, e.g." Balthazar v. Atlantic City Medical Center (2×)
N.J. Super. Ct. App. Div. · 2003 · signal: see also · confidence low
See also Howard v. University of Medicine and Dentistry of N.J., 172 N.J. 537, 550 , 800 A. 2d 73 (2002).
discussed Cited "see, e.g." Risko v. Ciocca (2×)
N.J. Super. Ct. App. Div. · 2003 · signal: see also · confidence low
See also Howard v. University of Medicine & Dentistry, 172 N.J. 537 , 800 A. 2d 73 (2002), misrepresentation may give rise to lack of informed consent.
discussed Cited "see, e.g." Acuna v. Turkish (2×)
N.J. Super. Ct. App. Div. · 2002 · signal: see also · confidence low
Largey, supra, 110 N.J. at 215 , 540 A. 2d 504 ; see also Howard v. University of Med. & Dentistry of N.J., 172 N.J. 537, 559 , 800 A. 2d 73 (2002) (a plaintiff must "show a causal connection between the inadequately disclosed risk of the procedure and the injury sustained").
Retrieving the full opinion text from the archive…
Joseph Howard and Marie Howard, Plaintiffs-Respondents,
v.
University of Medicine and Dentistry of New Jersey, Dr. C. Ruebenacker, Dr. C. Vaicys, Dr. Grigorian, M. Felix, Kristin Schwerzer, J. Esposito, E. Wheeler, Jonathan Dalmer, John Does 1-25 (Fictitious Names), Jane Does 1-25 (Fictitious Names), Jim Does 1-25 (Fictitious Names), Betty Does 1-25 (Fictitious Names), and Abc Corps., 1-20 (Fictitious Names), Defendants, and Dr. Robert Heary and Karen Romano, Defendants-Appellants
Supreme Court of New Jersey.
Jun 18, 2002.
800 A.2d 73
R. Scott Eichhom argued the cause for appellants (McDon-ough, Kom & Eichhom, attorneys; Matthew S. Schorr, of counsel; Mr. Schorr and William S. Mezzomo, on the briefs)., Bruce H. Nagel argued the cause for respondents (Nagel Rice Dreijuss & Mazie, attorneys; Mr. Nagel, Robert H. Solomon and Adam M. Slater, of counsel; Mr. Nagel, Mr. Solomon and Mr. Slater, on the briefs)., Joel M. Silverstein submitted a brief on behalf of amicus curiae Medical Society of New Jersey (Stem, Greenberg & Kilcullen, attorneys)., Kevin McNulty submitted a brief on behalf of amicus curiae University Physician Associates of New Jersey, Inc. (Gibbons, Del Deo, Dolan, Griffinger & Vecchione, attorneys).
LaVECCHIA.
Cited by 62 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 81%
Citer courts: E.D. Pennsylvania (1)

The opinion of the Court was delivered by

LaVECCHIA, J.

In this appeal we consider what causes of action will lie when a plaintiff contends that a physician misrepresented his credentials and experience at the time he obtained the plaintiffs consent to surgery.

I.

Plaintiff, Joseph Howard, came under the care of defendant, Dr. Robert Heary, in February 1997 for neck pain and related complaints. He had a history of cervical spine disease. Following a car accident in 1991, he was diagnosed with spondyliosis, with spinal cord compression extending from the C3 to C7 cervical discs. According to various doctors who examined him at that time he had severe cervical spinal stenosis, and he was advised to undergo a “decompressive cervical laminectomy because of the[*543] extent of his cervical pathology.” Although the condition was “worsening progressively,” plaintiff decided to forego surgery.

In January 1997, another automobile accident caused plaintiff injuries that included a cerebral concussion, cervical syndrome with bilateral radiculopathies, and low back syndrome with bilateral radiculopathies. Plaintiff sought the care of Dr. Boston Martin, who had treated him after the 1991 accident. Dr. Martin concluded that plaintiffs spinal condition had worsened significantly and recommended that plaintiff be seen at the University of Medicine and Dentistry of New Jersey (UMDNJ) by Dr. Heary, a Professor of Neurosurgery and the Director of UMDNJ’s Spine Center of New Jersey.

Dr. Heary had two pre-operative consultations with plaintiff. In the first consultation, Dr. Heary determined that plaintiff needed surgery to correct a cervical myelopathy secondary to cervical stenosis and a significantly large C3 C4 disc herniation. Because of the serious nature of the surgery, Dr. Heary recommended that plaintiffs wife attend a second consultation. The doctor wanted to explain again the risks, benefits, and alternatives to surgery, and to answer any questions concerning the procedure.

Plaintiff returned with his wife for a second consultation, but what transpired is disputed. An “Office Note” written by Dr. Heary detailing the contents of the consultation states that “[a]ll alternatives have been discussed and patient elects at this time to undergo the surgical procedure, which has been scheduled for March 5, 1997.” Dr. Heary asserts that he informed plaintiff and his wife that the surgery entailed significant risks, including the possibility of paralysis. Plaintiffs dispute that they were informed of such risks. Further, they contend that during the consultation plaintiffs wife asked Dr. Heary whether he was Board Certified and that he said he was. Plaintiffs also claim that Dr. Heary told them that he had performed approximately sixty corpectomies in each of the eleven years he had been performing such surgical procedures. According to Mrs. Howard, she was opposed to the surgery and it was only after Dr. Heary’s specific claims of skill[*544] and experience that she and her husband decided to go ahead with the procedure.

Dr. Heary denies that he represented that he was Board Certified in Neurosurgery. [1] He also denies that he ever claimed to have performed sixty corpectomies per year for the eleven years he had practiced neurosurgery.

Dr. Heary performed the surgical procedure on March 5, 1997, but it was unsuccessful. A malpractice action was filed alleging that Mr. Howard was rendered quadriplegic as a result of Dr. Heary’s negligence.

During pretrial discovery, Dr. Heary and Mr. and Mrs. Howard were deposed. Plaintiffs claim that they learned from Dr. Heary’s deposition that he had misrepresented his credentials and experience during the pre-surgery consultation. In his deposition Dr. Heary stated that he was not Board Certified at the time of the surgery, and that he had performed approximately “a couple dozen” corpectomies during his career. Based on that allegedly new information, plaintiffs moved unsuccessfully to amend their original complaint to add a fraud count.

In denying the motion, the trial court reasoned that “the plaintiff can get before the jury everything that is necessary without clouding the issue [with] is there a fraud here against the doctor.... I have to agree with counsel for defendant that that, in essence, is not the nexus of malpractice.” The court added that the fraud count would be duplicative, because if it were true that the doctor had misrepresented his credentials and experience plaintiffs still would be required to prove that Dr. Heary deviated from the acceptable standard of care to be entitled to recovery.

[*545] On leave to appeal the interlocutory order, the Appellate Division reversed and remanded with direction to the trial court to permit amendment of the complaint to include a “deceit based claim.” Howard v. University of Medicine and Dentistry, 338 N.J.Super. 33, 39, 768 A.2d 195 (2001). Rejecting the contention that the amended complaint caused undue prejudice to defendant, the Appellate Division held that the denial of the motion for leave to amend did not comport with the interests-of-justice standard. Id. at 38, 768 A.2d 195. In respect of the merits of the newly pled claim based on deceit, the panel disagreed that plaintiff would be required to prove negligent performance of the surgery in order to recover damages. Ibid. The Appellate Division likened the claim for fraudulent misrepresentation to a claim for battery, when a doctor, other than the one authorized under principles of informed consent, performs the surgery. Id. at 39, 768 A.2d 195. In such circumstances, proof of negligent performance by the doctor would not be required. Ibid.

We granted defendant’s motion for leave to appeal, 168 N.J. 287, 773 A.2d 1152 (2001).

II.

Presently, a patient has several avenues of relief against a doctor: (1) deviation from the standard of care (medical malpractice); (2) lack of informed consent; and (3) battery. Colucci v. Oppenheim, 326 N.J.Super. 166, 180, 740 A.2d 1101 (App.Div. 1999), certif. denied, 163 N.J. 395, 749 A.2d 369 (2000) (citations omitted). Although each cause of action is based on different theoretical underpinnings, “it is now clear that deviation from the standard of care and failure to obtain informed consent are simply sub-groups of a broad claim of medical negligence.” Teilhaber v. Greene, 320 N.J.Super. 453, 463, 727 A.2d 518 (App.Div.1999) (citations omitted). The original complaint in this case alleged a standard medical malpractice claim of deviation from the standard of care. Plaintiffs’ motion to amend the complaint to add a fraud claim raises the question whether a patient’s consent to surgery[*546] obtained through alleged misrepresentations about the physician’s professional experience and credentials is properly addressed in a claim of lack of informed consent, or battery, or whether it should constitute a separate and distinct claim based on fraud.

A.

We focus first on the distinction between lack of informed consent and battery as they are recognized in New Jersey. The doctrine of informed consent was tied initially to the tort of battery, but its evolution has firmly established it as a negligence concept. See Largey v. Rothman, 110 N.J. 204, 207-08, 540 A.2d 504 (1988) (tracing history of theory of informed consent). Early cases recognized a cause of action for an “unauthorized touching” or “battery” if a physician did not obtain consent to perform a medical procedure. See, e.g., Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 14-15 (1905) (finding physician liable for operating on left ear when permission given only for surgery on right ear); Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 105 N.E. 92, 93 (1914) (citations omitted) (declaring importance of personal autonomy in medical setting: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.”). Because doctors ordinarily lacked the “intent” to harm normally associated with the tort of battery, however, courts examining the nuances of the doctor-patient relationship realized that conceptually a cause of action based on lack of patient consent fit better into the framework of a negligence cause of action. See Marjorie Maguire Shultz, From Informed, Consent to Patient Choice: A New Protected Interest, 95 Yale L.J. 219, 225 (1985) (“Given the absolute nature of battery, the narrowness of its defenses, and the breadth of its remedies, doctors could end up paying significant damages after providing faultless medical treatment, simply because some minor informational aspect of the consent process was questioned.”).

[*547] By the mid-twentieth century, as courts began to use a negligence theory to analyze consent causes of action, the case law evolved from the notion of consent to informed consent, balancing the patient’s need for sufficient information with the doctor’s perception of the appropriate amount of information to impart for an informed decision. See Largey, supra, 110 N.J. at 208, 540 A.2d 504 (quoting Salgo v. Leland Stanford Jr. Univ. Bd. of Trustees, 154 Cal.App.2d 560, 317 P.2d 170, 181 (Cal.App.1957) (“[a] physician violates his duty to the patient and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment.”)).

The doctrine of informed consent continued to be refined. See Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, 1106, modified on other grounds, 187 Kan. 186, 354 P.2d 670 (1960) (holding that doctor’s required disclosure was “limited to those disclosures which a reasonable medical practitioner would make under the same or similar circumstances,” known as the “professional standard”). Eventually, the “prudent patient,” or “materiality of risk” standard was introduced. Canterbury v. Spence, 464 A.2d 772, 786-88 (D.C.Cir.1972), cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972). That patient-centered view of informed consent stresses the patient’s right to self-determination, and the fiduciary relationship between a doctor and his or her patients. Id. at 781-82. The standard balances the patient’s need for material information with the discretion to be exercised by the doctor, and requires a physician to disclose material information to the patient even if the patient does not ask questions. Ibid. “A risk would be deemed ‘material’ when a reasonable patient, in what the physician knows or should know to be the patient’s position, would be ‘likely to attach significance to the risk or cluster of risks’ in deciding whether to forgo the proposed therapy or to submit to it.” Largey, supra, 110 N.J. at 211-212, 540 A.2d 504 (quoting Canterbury, supra, 464 A.2d at 787).

[*548] In New Jersey, as in most jurisdictions, informed consent is “a negligence concept predicated on the duty of a physician to disclose to a patient information that will enable him to ‘evaluate knowledgeably the options available and the risks attendant upon each’ before subjecting that patient to a course of treatment.” Perm v. Pirozzi, 92 N.J. 446, 459, 457 A.2d 431 (1983) (quoting Canterbury, supra, 464 F.2d at 780). Although we originally followed the-“professional” standard for assessing claims of informed consent, Kaplan v. Haines, 96 N.J.Super. 242, 257, 232 A.2d 840 (App.Div.1967), aff' d.o.b., 51 N.J. 404, 241 A.2d 235 (1968), that standard was replaced by the “prudent patient” standard set forth in Canterbury. Largey, supra, 110 N.J. at 216, 540 A.2d 504.

Thus, to sustain a claim based on lack of informed consent, the patient must prove that the doctor withheld pertinent medical information concerning the risks of the procedure or treatment, the alternatives, or the potential results if the procedure or treatment were not undertaken. Perna, supra, 92 N.J. at 460, 457 A.2d 431 (citation omitted). See also Matthies v. Mastromonaco, 160 N.J. 26, 34-35, 733 A.2d 456 (1999) (noting requirement of exploring medically reasonable invasive and noninvasive alternatives, including risks and likely outcomes of both). The information a doctor must disclose depends on what a reasonably prudent patient would deem significant in determining whether to proceed with the proposed procedure. Largey, supra, 110 N.J. at 211-212, 540 A.2d 504.

A plaintiff seeking to recover under a theory of lack of informed consent also must prove causation, id. at 215, 540 A.2d 504, thereby requiring a plaintiff to prove that a reasonably prudent patient in the plaintiffs position would have declined to undergo the treatment if informed of the risks that the defendant failed to disclose. Canesi v. Wilson, 158 N.J. 490, 504-05, 730 A.2d 805 (1999) (citation omitted). If the plaintiff would have consented to the proposed treatment even with full disclosure, the[*549] burden of proving causation is not met. Largey, supra, 110 N.J. at 215-16, 540 A.2d 504. Accordingly,

[t]o establish a prima fade case for medical negligence premised on a theory of liability for lack of informed consent, a plaintiff must show “(1) the physician failed to comply with the [reasonably-prudent-patient] standard for disclosure; (2) the undisclosed risk occurred and harmed the plaintiff, (3) a reasonable person under the circumstances would not have consented and submitted to the operation or surgical procedure had he or she been so informed; and (4) the operation or surgical procedure was a proximate cause of plaintiff’s injuries.”
[Teilhaber., supra, 320 N.J.Super. at 465, 727 A.2d 518 (citations omitted) (emphasis added).]

The damages analysis in an informed consent case involves a comparison between the condition a plaintiff would have been in had he or she been properly informed and not consented to the risk, with the plaintiffs impaired condition as a result of the risk’s occurrence. Canesi, supra, 158 N.J. at 505, 730 A.2d 805 (citations omitted) (noting that “there must be medical causation [from the procedure], that is, a causal connection between the undisclosed risk [of the procedure performed] and the injury ultimately sustained”). Our case law does not require a plaintiff to prove that the physician deviated from the standard of care in performing the operation or procedure; the physician’s negligence is in the inadequate disclosure and the damages claimed derive from the harm to the patient caused by a procedure that would not have occurred if the disclosure had been adequate. Id. at 506, 730 A.2d 805 (analyzing causation requirements of informed consent and wrongful birth actions; although both require disclosure of risks that reasonably prudent patient would consider material, informed consent action requires plaintiff to demonstrate that undisclosed risk materialized and injury to patient resulted from treatment provided). In summary, in an action based on lack of informed consent,

the plaintiff must prove not only that a reasonably prudent patient in [his or] her position, if apprised of all material risks, would have elected a different course of treatment or care. In an informed consent case, the plaintiff must additionally meet a two-pronged test of proximate causation: [he or] she must prove that the undisclosed risk actually materialized and that it was medically caused by the treatment.
[Ibid.]

[*550] B.

Our common law also authorizes a medical battery cause of action where a doctor performs a surgery without consent, rendering the surgery an unauthorized touching. Perna, supra, 92 N.J. at 460-61, 457 A.2d 431. Because battery is an intentional tort, it is reserved for those instances where either the patient consents to one type of operation but the physician performs a substantially different one from that for which authorization was obtained, or where no consent is obtained. Matthies, supra, 160 N.J. at 35, 733 A.2d 456 (citing 3 David W. Louisell & Harold Williams, Medical Malpractice §§ 22.02, 22.03 (1999)); Samoilov v. Raz, 222 N.J.Super. 108, 119, 536 A.2d 275 (App.Div. 1987).

In circumstances where the surgery that was performed was authorized with arguably inadequate information, however, an action for negligence is more appropriate. Tonelli v. Khanna, 238 N.J.Super. 121, 126-27, 569 A.2d 282 (App.Div.), certif. denied, 121 N.J. 657, 583 A.2d 344 (1990). Battery actions are less readily available in part because of the severity of their consequences. In an action for battery, a patient need not prove that the physician deviated from either the applicable standard for disclosure or the standard for performance of the operation. Perna, supra, 92 N.J. at 460-61, 457 A.2d 431. Accordingly, “[a]n operation undertaken without [any] consent (battery) even if perfectly performed with good medical results may entitle a plaintiff to at least nominal and even punitive damages.” Whitley-Woodford v. Jones, 253 N.J.Super. 7, 11, 600 A.2d 946 (App.Div.1992) (citations omitted).

The decision in Pema represents the unusual circumstance where the consent granted was vitiated, rendering the circumstances the equivalent of an unauthorized touching-in other words, a battery. In that matter, the defendant urologists were part of a medical group that operated as a self-described “team.” Perna, supra, 92 N.J. at 451, 457 A.2d 431. Their method of operation included a decision made immediately prior to a surgical proce[*551] dure designating the specific member of the group who was to perform the surgery. Unaware of that practice, the plaintiff entered the hospital on the advice of his family physician for tests and a urological consultation. In the hospital, the plaintiff was examined by one physician member of the practice group who previously had treated the plaintiff for a bladder infection. Ibid. The doctor recommended the removal of kidney stones and the plaintiff signed a consent form naming that physician as the surgeon. The operation ultimately was performed by two other physicians from the practice group, both of whom were unaware that only the original doctor’s name appeared on the consent form. Id. at 452, 457 A.2d 431. Post-surgical complications developed and the plaintiff became aware of the substitution of doctors. Ibid.

Plaintiff sued based on lack of informed consent. Perna, supra, 92 N.J. at 452, 457 A.2d 431. The court instructed the jury that the plaintiff could recover only if the substitution of surgeons caused his damages. Id. at 453, 457 A.2d 431. The jury found for the defendants, and on appeal the Appellate Division affirmed. Id. at 450, 457 A.2d 431. On certification to this Court, the matter was reversed and remanded.. Id. at 465-66, 457 A.2d 431. The Court referred to the substitution of surgeons as “ghost surgery” because the doctor to whom informed consent was given was not the surgeon who performed the surgery. In that circumstance, the Court concluded that that surgeon did not have the plaintiffs informed consent. Id. at 463 n. 3, 464-465, 457 A.2d 431 (citing Judicial Council of the American Medical Ass’ n, Op. 8.12 (1982)). Denominating the matter a battery, the Court held that the plaintiff was entitled to “recover for all injuries proximately caused by the mere performance of the operation, whether the result of negligence or not.” Perna, supra, 92 N.J. at 460-61, 457 A.2d 431. The Court held that if the patient suffers no injuries except those that may be foreseen from the operation, he then is entitled at least to nominal damages and, in an appropriate ease, may be entitled to damages for mental anguish resulting from the[*552] belated knowledge that the operation was performed by a doctor to whom he had not given consent. Id. at 461, 457 A.2d 431.

Thus, although a claim for battery will lie where there has been “ghost surgery” or where no consent has been given for the procedure undertaken, if consent has been given for the procedure only a claim based on lack of informed consent will lie. A claim based on lack of informed consent properly will focus then on the adequacy of the disclosure, its impact on the reasonable patient’s assessment of the risks, alternatives, and consequences of the surgery, and the damages caused by the occurrence of the undisclosed risk. See W. Page Keeton, et ah, Prosser and Keeton on Tarts § 32 at 190 (5th ed.1984).

III.

A.

In finding that a deceit-based claim was appropriate in this matter, the Appellate Division analogized the allegations concerning Dr. Heary’s misrepresentations about his credentials and experience to the “ghost surgery” situation discussed in Pema. Howard, supra, 338 N.J.Super. at 38-39, 768 A.2d 195. At the outset, we note that this case is not factually analogous to Pema where a different person from the one to whom consent was given actually performed the procedure. 92 N.J. at 451-52, 457 A.2d 431. Nor is this a case' where someone impersonating a doctor actually touched a patient. See Taylor v. Johnston, 985 P.2d 460, 465 (Alaska 1999) (noting that “battery claim may lie if a person falsely claiming to be a physician touches a patient, even for the purpose of providing medical assistance”). Here, defendant explained the procedure, its risks and benefits, and the alternatives to the surgery. He then performed the procedure; another person did not operate in his stead as in the “ghost surgery” scenario. See Thomas Lundmark, Surgery by an Unauthorized Surgeon as a Battery, 10 J.L. & Health 287 (1995-1996) (defining[*553] ghost surgery as “surgery by a surgeon [to whom] the patient has not consented”). The facts in Perm simply are not helpful here.

New jurisdictions have confronted the question of what cause of action should lie when a doctor allegedly misrepresents his credentials or experience. Research has revealed only one jurisdiction that has allowed a claim based on lack of informed consent under similar circumstances. See Johnson v. Kokemoor, 199 Wis.2d 615, 545 N.W.2d 495, 498 (Wis.1996) (analyzing doctor’s affirmative misrepresentation as claim for lack of informed consent and finding that reasonable person would have considered information regarding doctor’s relative lack of experience in performing surgery to have been material in making intelligent and informed decision). Although some suggest that a claim based in fraud may be appropriate if a doctor actively misrepresents his or her background or credentials, we are aware of no court that has so held. See, e.g., Bethea v. Coralli 248 Ga.App. 853, 546 S.E.2d 542, 544 (Ga.Ct.App.2001) (holding that patient may not bring claim for fraud independent of claim of medical malpractice); Ditto v. McCurdy, 86 Hawai‘i 84, 947 P.2d 952, 958 (Hawaii 1997) (holding that failure to disclose lack of board certification as plastic surgeon, as opposed to other board certifications possessed, did not violate requirements for informed consent or render doctor liable for fraud); Paulos v. Johnson, 597 N.W.2d 316, 320 (Minn. Ct.App.1999) (allegation of misrepresentation is not actionable as independent fraud claim); Spinosa v. Weinstein, 168 A.D.2d 32, 571 N.Y.2d 747, 751-54 (N.Y.App.Div.1991) (holding that fraudulent representations made to plaintiff did not render her consent to foot surgery equivalent to absence of consent; rather, claim had to do with whether there was failure to obtain informed consent); cf. Duttry v. Patterson, 565 Pa. 130, 771 A.2d 1255, 1259 (Pa. 2001) (holding that alleged affirmative misstatement of credentials does not support claim for lack of informed consent, but suggesting that claim for misrepresentation may be appropriate).

The thoughtful decision of the Appellate Division notwithstanding, we are not convinced that our common law should be[*554] extended to allow a novel fraud or deceit-based cause of action in this doctor-patient context that regularly would admit of the possibility of punitive damages, and that would circumvent the requirements for proof of both causation and damages imposed in a traditional informed consent setting. We are especially reluctant to do so when plaintiffs damages from this alleged “fraud” arise exclusively from the doctor-patient relationship involving plaintiffs corpectomy procedure. See Spinosa, supra, 571 N.Y.S.2d at 753 (citations omitted) (holding that concealment or failure to disclose doctor’s own malpractice does not give rise to claim of fraud or deceit independent of medical malpractice, and noting that intentional tort of fraud actionable “ ‘only when the alleged fraud occurs separately from and subsequent to the malpractice ... and then only where the fraud claim gives rise to damages separate and distinct from those flowing from the malpractice’”). Accordingly, we hold that a fraud or deceit-based claim is unavailable to address the wrong alleged by plaintiff. We next consider whether a claim based on lack of informed consent is the more appropriate analytical basis for the amendment to the complaint permitted by the Appellate Division.

B.

Our case law never has held that a doctor has a duty to detail his background and experience as part of the required informed consent disclosure; nor are we called on to decide that question here. See In re Conroy, 98 N.J. 321, 346, 486 A.2d 1209 (1985) (stating that informed consent doctrine anticipates “a patient’s consent, obtained after explanation of the nature of the treatment, substantial risks, and alternative therapies.”) (quoting Norman L. Cantor, A Patient’s Decision to Decline Life Saving Medical Treatment: Bodily Integrity Versus the Preservation of Life, 26 Rutgers L.Rev. 228, 346 (1973)); Matthies, supra, 160 N.J. at 36-41, 733 A.2d 456. See generally S David W. Louisell & Harold Williams, Medical Malpractice § 22.04(3)(a) (1998) (noting that ordinary scope of disclosure involves “information concerning (1)[*555] the diagnosis; (2) the general nature of the contemplated procedure; (3) the risks involved; (4) the prospects of success; (5) the prognosis if the procedure is not performed; and (6) alternative medical treatments”). Courts generally have held that claims of lack of informed consent based on a failure to disclose professional-background information are without merit. See, e.g., Ditto, supra, 947 P.2d at 958 (holding that informed consent does not require doctor to “affirmatively disclose his or her [professional] qualifications or lack thereof to a patient”); Foard v. Jarman, 326 N.C. 24, 387 S.E.2d 162, 167 (N.C.1990) (finding that because informed consent statute imposed no affirmative duty to discuss experience, facts presented “no genuine issue regarding defendant’s experience which [bore] on the issue of informed consent”).

Although personal credentials and experience may not be a required part of an informed consent disclosure under the current standard of care required of doctors, the question raised in this appeal is whether significant misrepresentations concerning a physician’s qualifications can affect the validity of consent obtained. The answer obviously is that they can.

In certain circumstances, a serious misrepresentation concerning the quality or extent of a physician’s professional experience, viewed from the perspective of the reasonably prudent patient assessing the risks attendant to a medical procedure, can be material to the grant of intelligent and informed consent to the procedure. See 1 Dan B. Dobbs, The Law of Torts, § 251 at 660-61 (2001) (citing Kokemoor, supra, and discussing that some authority has begun to suggest that patient is entitled to information concerning doctor’s experience in performing specific surgery). In Kokemoor, supra, the Supreme Court of Wisconsin reviewed a ease in which the plaintiff alleged that her surgeon did not obtain her informed consent to perform a surgical procedure because he had misrepresented his experience in response to a direct question during a pre-operative consultation. 545 N.W.2d at 505. At trial, evidence was introduced suggesting that the type of surgery performed — basilar bifurcation aneurysm — was “among[*556] the most difficult in all of neurosurgery.” Ibid. The court found that evidence of the defendant’s lack of experience was relevant to an informed consent claim because “[a] reasonable person in the plaintiffs position would have considered such information material in making an intelligent and informed decision about the surgery.” Ibid. See also Bethea, supra, 546 S.E.2d at 544 (recognizing that fraudulent misrepresentation of facts material to consent may support claim based on lack of informed consent); Paulos, supra, 597 N.W.2d at 320 (suggesting misrepresentation by doctor that he was board certified in plastic surgery may present issue of informed consent).

The allegation here is that defendant’s misrepresentations concerning his credentials and experience were instrumental in overcoming plaintiffs reluctance to proceed with the surgery. The theory of the claim is not that the misrepresentation induced plaintiff to proceed with unnecessary surgery. See Tonelli, supra, 238 N.J.Super. at 128, 569 A.2d 282 (noting that plaintiff alleged that doctor performed unnecessary surgery for personal gain). Rather, plaintiff essentially contends that he was misled about material information that he required in order to grant an intelligent and informed consent to the performance of the procedure because he did not receive accurate responses to questions concerning defendant’s experience in performing corpectomies and whether he was “Board Certified.” Plaintiff allegedly was warned of the risk of paralysis from the corpectomy procedure; however, he asserts that if he had known the truth about defendant’s qualifications and experience, it would have affected his assessment of the risks of the procedure. Stated differently, defendant’s misrepresentations induced plaintiff to consent to a surgical procedure, and its risk of paralysis, that he would not have undergone had he known the truth about defendant’s qualifications. Stripped to its essentials, plaintiffs claim is founded on lack of informed consent.

As noted earlier, a patient-specific standard of what is material to a full disclosure does not apply in a claim based on lack of[*557] informed consent. Thus, plaintiffs subjective preference for a Board Certified physician, or one who had performed more cor-pectomies than defendant had performed, is not the actionable standard. Nonetheless, assuming the misrepresentations are proved, if an objectively reasonable person could find that physician experience was material in determining the medical risk of the corpectomy procedure to which plaintiff consented, and if a reasonably prudent person in plaintiffs position informed of the defendant’s misrepresentations about his experience would not have consented, then a claim based on lack of informed consent may be maintained.

Modern advances in medicine coupled with the increased sophistication of medical consumers require an evolving notion of the reasonably prudent patient when assessing a claim based on lack of informed consent. See Schultz, supra, 95 Yale L.J. at 221-22. That said, most informed consent issues are unlikely to implicate a setting in which a physician’s experience or credentials have been demonstrated to be a material element affecting the risk of undertaking a specific procedure. The standard requires proof on which an objectively reasonable person would base a finding that physician experience could have a causal connection to a substantial risk of the procedure. Largey, supra, 110 N.J. at 213-15, 540 A.2d 504 3 David W. Louisell & Harold Williams, Medical Malpractice § 22.05(3) (2001).

The alleged misrepresentations in this case about “physician experience” (credentials and surgical experience) provide a useful context for demonstrating the difficulty inherent in meeting the materiality standard required in order for physician experience to have a role in an informed consent case. We recognize that a misrepresentation about a physician’s experience is not a perfect fit with the familiar construct of a claim based on lack of informed consent. The difficulty arises because physician experience is not information that directly relates to the procedure itself or one of the other areas of required medical disclosure concerning the procedure, its substantial risks, and alternatives that must[*558] be disclosed to avoid a claim based on lack of informed consent. But the possibility of materiality is present. If defendant’s true level of experience had the capacity to enhance substantially the risk of paralysis from undergoing a corpectomy, a jury could find that a reasonably prudent patient would not have consented to that procedure had the misrepresentation been revealed. That presumes that plaintiff can prove that the actual level of experience possessed by defendant had a direct and demonstrable relationship to the harm of paralysis, a substantial risk of the procedure that was disclosed to plaintiff. Put differently, plaintiff must prove that the additional undisclosed risk posed by defendant’s true level of qualifications and experience increased plaintiffs risk of paralysis from the corpectomy procedure.

The standard for causation that we envision in such an action will impose a significant gatekeeper function on the trial court to prevent insubstantial claims concerning alleged misrepresentations about a physician’s experience from proceeding to a jury. We contemplate that misrepresented or exaggerated physician experience would have to significantly increase a risk of a procedure in order for it to affect the judgment of a reasonably prudent patient in an informed consent ease. As this case demonstrates, the proximate cause analysis will involve a two-step inquiry.

The first inquiry should be, assuming a misrepresentation about experience, whether the more limited experience or credentials possessed by defendant could have substantially increased plaintiffs risk of paralysis from undergoing the corpectomy procedure. We envision that expert testimony would be required for such a showing. The second inquiry would be whether that substantially increased risk would cause a reasonably • prudent person not to consent to undergo the procedure. If the true extent of defendant’s experience could not affect materially the risk of paralysis from a corpectomy procedure, then the alleged misrepresentation could not cause a reasonably prudent patient in plaintiffs position to decline consent to the procedure. The court’s gatekeeper function in respect of the first question will[*559] require a determination that a genuine issue of material fact exists requiring resolution by the factfinder in order to proceed to the second question involving an assessment by the reasonably prudent patient. Further, the trial court must conclude that there is a genuine issue of material fact concerning both questions in order to allow the claim to proceed to trial.

Finally, to satisfy the damages element in a claim based on lack of informed consent, a plaintiff typically has to show a causal connection between the inadequately disclosed risk of the procedure and the injury sustained. Canesi, supra, 158 N.J. at 505, 730 A.2d 805. If that risk materialized and harmed plaintiff, damages for those injuries are awarded. Ibid. Here, if successful in his claim based on lack of informed consent, plaintiff may receive damages for injuries caused by an inadequately disclosed risk of the corpectomy procedure. However, as noted, to be successful plaintiff must prove that defendant’s allegedly misrepresented qualifications and experience can satisfy the stringent test for proximate causation that is required for physician experience to be material to the substantial risk of the procedure that occurred (paralysis) and injured plaintiff. If he can, then plaintiff may be compensated for that injury caused by the corpectomy irrespective of whether defendant deviated from the standard of care in performing the surgical procedure.

In conclusion, plaintiffs medical malpractice action will address any negligence in defendant’s performance of the corpectomy procedure. We hold that in addition plaintiff may attempt to prove that defendant’s alleged misrepresentation about his credentials and experience presents a claim based on lack of informed consent to the surgical procedure, consistent with the requirements and limitations that we have imposed on such a claim.

IV.

We reverse that portion of the decision below that would permit a separate action for fraud in view of our conclusion that misrepresentations concerning a physician’s credentials and experience[*560] ordinarily are to be cognizable in a claim based on lack of informed consent. All aspects of plaintiffs complaint against .defendant arise out of plaintiffs consent to a medical procedure and defendant’s performance of that procedure. Permitting a cause of action based on lack of informed consent, in addition to the malpractice action, is all that is required and appropriate to address plaintiffs allegations.

The judgment of the Appellate Division is affirmed in part, and reversed in part. The matter is remanded to the trial court to allow plaintiff the opportunity to amend his complaint to allege lack of informed consent, consistent with the requirements for prevailing on that claim as set forth in this opinion.

For affirmance in part; reversal and remandment — Chief Justice PORITZ and Justices STEIN, COLEMAN, LONG, YERNIERO, LaVECCHIA, and ZAZZALI — 7.

Opposed — None.

1

Although he was Board Eligible at the time of Mr. Howard's surgery, Dr. Heary did not become Board Certified in Neurosurgery until November 1999. "A physician is considered to be a surgical specialist if the physician: (1) Is certified by an American surgical specialty board approved by the American Board of Medical Specialties; or (2) Has been judged eligible by such a board for its examination by reason of education, training and experience.” American College of Surgeons Statements on Principles, Section II.A.