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Herrara v. Atlantic City Surgical Group6/9/1994
WINKELSTEIN, J.S.C.
This is a medical malpractice case. The issue is whether a referring physician has a duty to obtain the patient's informed consent to surgery that is to be performed by another doctor. In other words, plaintiff claims that the referring doctors were under a duty to explain to her all of the material risks and options available to her, even though her surgery was to be performed by another physician.
The issue is before the court on a motion for involuntary dismissal (R.4:37-2(b)). For purposes of the motion, all of plaintiff's proofs will be accepted as true.
Plaintiff Lourdes Herrera was born in the Philippines. She came to the United States as a tourist in 1978 and became a U.S. Citizen in 1985. In May 1987 she discovered what she described as a small ball in her right breast two inches below the nipple. At that time she did not seek any medical treatment.
In October 1987 she returned to the Philippines to visit family. On November 30, 1987, while in the Philippines, she went to a family friend, a surgeon, who removed the lump. A pathology report was prepared and a diagnosis was made of mucinous carcinoma of the right breast. According to plaintiff, the doctor told her she would require additional surgery which she assumed was the removal of her right breast. In other words, she would require a mastectomy.
Plaintiff wanted to consider other options to surgery. She decided to wait, however, until she returned to the United States to obtain additional medical advice as to whether or not additional surgery was necessary.
She returned to the United States in early March 1988. On March 14 she consulted with doctors Austin Gerber and Harry Sweeney, who are family practitioners, not experts in either oncology or surgery. Plaintiff did not have a physician who she saw regularly in the U.S., but her husband had been treated by doctors Gerber and Sweeney, and plaintiff's daughter, a nurse, had previously worked in their office. Both doctors examined her. She did not show them the pathology report from the Philippines at that time but did tell them the doctor in the Philippines told her she had cancer and needed additional surgery. Drs. Gerber and Sweeney referred plaintiff to Dr. Joseph A. Linsk, a medical oncologist. Dr. Linsk examined plaintiff on March 21. He aspirated breast tissue from the area of the scar remaining from her operation in the Philippines. Plaintiff told Dr. Linsk that the doctor in the Philippines said she had cancer and additional surgery was necessary. Dr. Linsk did not give plaintiff the results of the tissue aspiration at that time.
She returned to Dr. Sweeney on March 23. Dr. Sweeney then called Dr. Linsk who told him during the telephone conversation that the aspirated tissue was healthy. Dr. Sweeney did not discuss with plaintiff any other test results, nor did he discuss with her the affects or consequences of mucinous carcinoma. During the office visit, plaintiff showed Dr. Sweeney the pathology report from the Philippines. After reviewing it, Dr. Sweeney told plaintiff that she required a mastectomy. He did not mention any other options to her. Plaintiff was not satisfied with the diagnosis and asked Dr. Sweeney if there were additional tests she could take. He sent her back to Dr. Linsk.
On March 25 plaintiff returned to Dr. Linsk. At that time, she showed him the Phillipine pathology report. Dr. Linsk took blood from her and sent her for mammography. He also told her, after reviewing the pathology report, that she required a mastectomy. He did not discuss with her any other options.
She returned to Dr. Sweeney on March 28. Dr. Sweeney told her the ma
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