Failure to Obtain Informed Consent New Jersey
In Matthies v. Mastromonaco, 160 N.J. 26, 733 A.2d 456 (1999), acknowledging "the ultimate decision" for treatment resides with the patient, Justice Pollock discussed the majority of jurisdictions' move away from the battery theory of lack of informed consent, opting to view informed consent as "deriving from the right of self-determination." Id. at 34, 733 A.2d 456.
Most jurisdictions view the failure to obtain a patient's informed consent as an act of negligence or malpractice, not battery. See, e.g., Joan P. Dailey, the Two Schools of Thought and Informed Consent Doctrines in Pennsylvania: a Model for Integration, 98 Dick. L. Rev. 713, 727-28 & n. 101 (stating battery basis recognized in only minority of jurisdictions, for example, Georgia, Pennsylvania, and Virginia); Paula Walter, the Doctrine of Informed Consent: to Inform or Not to Inform?, 71 St. John's L. Rev. 543, 543, 558-59 (1997) (noting that two 1980 cases moved informed consent doctrine of New York, one of few remaining battery jurisdictions, toward theory of negligence).
The rationale for basing an informed consent action on negligence rather than battery principles is that the physician's failure is better viewed as a breach of professional responsibility than as a nonconsensual touching. Baird v. American Med. Optics, 155 N.J. 54, 70-71, 713 A.2d 1019 (1998); Largey v. Rothman, 110 N.J. 204, 207-08, 540 A.2d 504 (1988).
As the Court stated, "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." Perna v. Pirozzi, 92 N.J. 446, 459, 457 A.2d 431 (1983); see also 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) (sanctioning negligence-view, lack-of-informed-consent tort twenty years prior to Largey).
Analysis based on the principle of battery is generally restricted to cases in which a physician has not obtained any consent or has exceeded the scope of consent.
The essential difference in analyzing informed consent claims under negligence, rather than battery principles, is that the analysis focuses not on an unauthorized touching or invasion of the patient's body, but on the physician's deviation from a standard of care. Id. at 35-36, 733 A.2d 456.
In affirming our court's reversal of the jury's verdict for defendant, Justice Pollock stated:
Like the deviation from a standard of care, the physician's failure to obtain informed consent is a form of medical negligence. See Baird, supra, 155 N.J. at 70, 713 A.2d 1019; Teilhaber v. Greene, 320 N.J. Super. 453, 457, 727 A.2d 518 (App.Div.1999). Id. at 29, 39, 733 A.2d 456.