(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued April 28, 1998 -- Decided July 13,1998
PER CURIAM
This appeal involves a medical malpractice action brought by Sylvia Kimmel asserting wrongful death
and survivorship claims based on her husband's death from colon cancer. Testimony at trial centered around
alleged negligent omissions by Dr. Dayrit -- failure to obtain the results of two carcinoembryonic antigen
(CEA) tests and failure to perform serial CEA testing. The defense introduced evidence that post-operative
CEA testing has no therapeutic value and that once cancer has spread to the liver treatment is futile. The
jury returned a verdict of no negligence in favor of Dr. Dayrit.
On appeal, the Appellate Division vacated the jury's verdict and reversed the order denying
Kimmel's motion for a new trial, holding that a finding of no negligence was against the weight of the
evidence and resulted in a miscarriage of justice. Specifically, the Appellate Division held that it was
logically inconsistent for the defense experts to agree that the CEA test was part of the required standard of
care, but that follow-up testing would serve no useful purpose. The Appellate Division also held that on
remand Kimmel could seek to establish liability on the basis of the doctrine of informed consent. In doing
so, the Appellate Division applied an expansive standard for informed consent that implicates the patient's
"right of self determination."
The Supreme Court granted Dr. Dayrit's petition for certification.
HELD: The trial court, on motion made at remand, should decide in its sound discretion whether it is proper
for the plaintiff to be permitted to develop at retrial a claim based on informed consent.
1. The Appellate Division's reversal of the jury verdict of no negligence on the grounds of manifest injustice
raises primarily issues of fact and requires the application of settled law to those facts. The issue does not
warrant certification and further review by the Supreme Court. The Supreme Court vacates certification on
this issue as improvidently granted. (Pp. 3-5)
2. On the informed consent ruling, the Appellate Division acknowledged that the issue had not been raised
or presented at the trial level or on appeal, but concluded that justice required that Kimmel have the
opportunity to present the argument on retrial. The Supreme Court has strong reservations about the
Appellate Division's decision to consider this issue in the absence of any pleadings, any claims or defenses,
any arguments or rulings by the trial court, and without the introduction of evidence. The trial court is
directed, on motion made at remand, to decide initially in its sound discretion whether it is proper for the
plaintiff to develop a claim based on informed consent, taking both substantive and procedural considerations
into account. (Pp. 6-8)
The judgment of the Appellate Division is AFFIRMED as MODIFIED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN
and COLEMAN join in this opinion.
SUPREME COURT OF NEW JERSEY
A-
99 September Term 1997
SYLVIA KIMMEL, Executrix of the
ESTATE OF ELIAS M. KIMMEL, O.D.,
F.A.A.O., Deceased,
Plaintiff-Respondent,
v.
PEDRO DAYRIT, M.D.,
Defendant-Appellant,
and
JOHN DOE MD #1 (radiologist),
JOHN DOE #2 (surgeon),
JOHN DOE #3 (internist),
JOHN DOE #4 (neurologist),
JOHN DOE #5 (radiologist),
JOHN DOE #6 (pathologist), John Doe
#1 (individual partnership or
entity in charge of laboratory),
Jointly, Several and/or in the
Alternative,
Defendants.
Argued April 28, 1998 -- Decided July 13, 1998
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
301 N.J. Super. 334 (1997).
Christopher J. Christie argued the cause for
appellant (Dughi and Hewit, attorneys; Mr.
Christie and Gary L. Riveles of counsel and
on the briefs).
Daniel A. Zehner argued the cause for
respondent.
PER CURIAM
This appeal involves a medical malpractice action brought by
plaintiff, Sylvia Kimmel, who asserts wrongful death and
survivorship claims based on her husband's death from colon
cancer. She contends that he died after the defendant, Dr. Pedro
Dayrit, failed to perform or obtain the results of tests to
monitor her husband's condition. She argues that this negligent
failure prevented her husband from discovering that his colon
cancer had metastasized to his liver. Plaintiff claims as
damages the impairment of the decedent's quality of life and the
lost opportunity to arrange his personal and financial affairs.
At trial, the jury returned a verdict of no negligence in favor
of defendant. Thereafter, plaintiff filed a motion for a new
trial, but this motion was denied. On appeal, the Appellate
Division vacated the jury's verdict and reversed the order
denying plaintiff's motion for a new trial, holding that a
finding of no negligence was against the weight of the evidence
and resulted in a miscarriage of justice.
301 N.J. Super. 334
(1997). The Appellate Division also considered the doctrine of
informed consent and concluded that the plaintiff should be
allowed to pursue a claim based on the this theory at retrial.
Id. at 353. This Court granted defendant's petition for
certification, which sought review of both issues.
151 N.J. 465
(1997).
The salient facts in this case are recounted in the opinion of Judge Wecker and we need not recapitulate them in detail. See 301 N.J. Super. at 337-41. Brief reference to those facts is necessary, however, to explain the principle reason for our disposition of the first issue in this case, namely, the Appellate Division's holding that the jury's verdict of no-negligence constituted a miscarriage of justice warranting a new trial.
As the appellate court's opinion indicates, testimony at trial centered around three alleged negligent omissions: 1) defendant's failure to obtain the results of the January 1984 carcinoembryonic antigen (CEA) test, 2) defendant's failure to perform serial CEA testing, and 3) defendant's failure to obtain in a timely manner the results of the April 1989 CEA test. Id. at 341. The defense introduced evidence that post-operative CEA testing has no therapeutic value; that once cancer has spread to the liver from the colon treatment is futile; that a patient who chooses to undergo liver resection or infusive chemotherapy will neither prolong nor improve the quality of his life; and that CEA tests are inherently unreliable. Id. at 345-48. Therefore, the defense maintained at trial, the standard of care does not require a doctor to order serial tests when the tests are unreliable and serve no therapeutic purpose, and the patient's chance of having the detectable disease are remote. Ibid.
The case was submitted to the jury. The first question on
the verdict sheet asked: Did defendant Dr. Pedro Dayrit deviate
from accepted standards of medical practice in his care and
treatment of the late Elias M. Kimmel, O.D.? The jury answered
this question in the negative and was directed to proceed no
further. Id. at 342. Accordingly, judgment was entered in favor
of Dayrit.
As noted, the Appellate Division reversed, holding that the
jury verdict was against the weight of the evidence and created a
miscarriage of justice warranting a new trial. Id. at 353.
Judge Wecker, expressing the view of the entire court, explained
the standard of judicial review. Id. at 338 (citing Carrino v.
Novotny,
78 N.J. 355, 360-61 (1979); Baxter v. Fairmont Food Co.,
74 N.J. 588, 597-99 (1977); R. 2:10-1). Applying that standard,
the court determined that there was an "inconsistency between the
verdict of no negligence and defendant's undisputed failure on
two occasions to obtain the results of the CEA tests that he
ordered, first in January 1984 and again in April 1989" and that
"[d]efendant as well as his expert witnesses admitted his mistake
with respect to the April 1989 test." Ibid. The court concluded
that Dr. Dayrit "was required by the applicable standard of care
either to obtain the [January 1984] results, or to repeat the
test, within seven days of the polypectomy"; that it was
"logically inconsistent for the defense experts each to agree
that the seven-day CEA test was part of the required standard of
care under the circumstances presented, but that follow-up
testing would serve no useful purpose and was therefore not
required by the standard of care"; and that the failure to obtain
the April 1989 CEA test results in a timely manner was a
deviation from the standard of care. Id. at 343, 344, 349.
Defendant's petition for certification included the claim
that the Appellate Division should not have reversed the jury
finding of no negligence. We conclude that this issue raises
primarily issues of fact and requires the application of settled
law to those facts. Further review by this Court would entail
essentially only additional consideration of the facts as such.
It does not appear that disposition of this issue on the merits
will require the reexamination of settled principles of law or
the clarification, modification, or extension of those principles
of law or the formulation of new principles of law. The issue
does not present a question of public importance that has not
been but should be addressed by this Court. Moreover, although
we do not minimize the inconvenience and expense entailed in a
retrial, it does not appear that the Appellate Division's
reversal of the jury verdict of no negligence on grounds of
manifest injustice itself constitutes a grave injustice or
irremediable prejudice to defendants. We thus find that this
issue does not warrant certification and further review by this
Court. See In re Contract for Route 280,
89 N.J. 1-2 (1982);
Mahoney v. Danis,
95 N.J. 51, 50-53 (1983) (Handler, J.,
concurring). Accordingly, we vacate certification on this issue
as improvidently granted. See R. 2:12-4.
As noted, the Appellate Division held that on remand plaintiffs were entitled to seek to establish liability on the basis of the doctrine of informed consent.
Observing that "[w]ith differing opinions among experts," the court "would not normally interfere with a jury's choice of the appropriate standard of care," Judge Wecker added that in this case the court would depart from this rule because "defendant's experts offered a value judgment, not a medical judgment, by testifying that a patient has no need to know that he has a terminal condition." 301 N.J. at 349. The court concluded that defendant "opened the door to the real issues regarding regular CEA testing following surgery: the patient's right to be informed about the availability, the benefits, and the limitations of repeat CEA testing." Id. at 350.
In explaining the doctrine of informed consent and its relevance in this case, the court espoused an expansive standard for informed consent.See footnote 1
The court below recognized that the issue of informed
consent had not been raised or presented at the trial level. Id.
at 352-53. Further, as Judge Humphreys pointed out in his
concurring opinion, the issue was not raised by either party on
appeal. Id. at 361 (Humphreys, J., concurring). Nevertheless,
the court concluded that "justice requires that plaintiff have
the opportunity to present the failure-to-inform argument on
retrial." Id. at 353.
We express strong reservations about the court's decision to
recognize and consider this issue on appeal in the absence of any
pleadings, any claims or defenses, any arguments made by the
parties, or any rulings by the trial court, and without any
relevant evidence having been introduced addressing this issue.
As Judge Humphreys noted: "Before such a far reaching judicial
decision is made, the parties should be given an opportunity to
brief and argue the matter." Id. at 361.
The issue of the relevance and applicability of the doctrine
of informed consent as a basis for liability in this case should
not be resolved on appeal. Judge Stern, in his concurring
opinion, expressed these concerns, viz:
While I join in Judge Wecker's opinion in
permitting the 'failure to inform' theory to
be presented as part of plaintiff's case, the
opinion does not require the trial judge to
present it to the jury. The theory can be
explored as any other issue in the adversary
context at trial.
Judge Humphreys also felt that "this new theory of liability . .
. should be subject to appropriate motions at the trial level."
Id. at 362 (Humphreys, J., concurring).
Without passing on the merits of the issue of informed
consent, we direct the trial court, on motion made at remand, to
decide initially and in its sound discretion whether it is proper
for the plaintiff to be permitted to develop at retrial a claim
based on informed consent. In reaching that determination, the
trial court can take both substantive and procedural
considerations into account. For example, the court may consider
whether or not the newly asserted claim "would unduly prejudice
any party to the action," Molnar v. Hedden,
138 N.J. 96, 102
(1994), would survive a motion to dismiss on the merits,
Interchange State Bank v. Rinaldi,
303 N.J. Super. 239, 257 (App.
Div. 1997), would cause undue delay of the trial, State v.
Standard Tank Cleaning Corp.,
284 N.J. Super. 381, 396 (App. Div.
1995), would be a mere effort to avoid the strictures of another,
applicable rule of law, see Bonczek v. Carter-Wallace, Inc.,
304 N.J. Super. 593, 602 (App. Div. 1997), certif. denied,
51 N.J. 51
(1998), or could be "addressed under ordinary medical negligence
standards," see Vandi v. Permanente Medical Group, Inc.,
9 Cal.
Rptr.2d 463, 467 (Ct. App. 1992) (rejecting modified informed
consent theory on these grounds).
As modified, the judgment of the Appellate Division is
affirmed.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI, STEIN, and COLEMAN join in this opinion.
NO. A-99 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
SYLVIA KIMMEL, etc.,
Plaintiff-Respondent,
v.
PEDRO DAYRIT, M.D.,
Defendant-Appellant,
and
JOHN DOE MD #1 (radiologist), etc.,
et al.,
Defendants.
DECIDED July 13, 1998
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 Judge Wecker indicated that informed consent implicates "the patient's 'right of self-determination,' as well as the value the patient may have placed on knowledge--specifically for financial planning. . .or for personal planning. There may well be a dollar value that a reasonable jury would award . . .for decedent's lost opportunity to determine for himself how to spend his remaining time on this earth." Id. at 351 (internal citation omitted). Judge Humphreys was "uncertain" whether the doctrine of informed consent does or should reach so far as to require a "monitoring physician" to "obtain the patient's consent not to use the test" and, further, whether the doctrine, as enunciated by the majority, would allow liability to be imposed without the plaintiff having presented any expert testimony that the doctor's failure to inform the patient of the availability of this test was a deviation from the proper standard of medical care. Id. at
360-61 (Humphreys, J., concurring).