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Roukounakis v. Messer5/9/2005
e as the common law rule set forth in Harnish, the courts have not permitted such an action. In Backlund v. University of Wash., 137 Wash. 2d 651, 661 n.2 (1999), the court pointed out:
"Where a physician arguably misdiagnoses the patient's condition and recommends a course of treatment for the patient based on that misdiagnosis, the physician is properly liable in negligence for the misdiagnosis if such diagnosis breaches the standard of care. But the physician should not be additionally liable under RCW 7.70.050 [the informed consent statute] for a condition unknown to the physician. For example, a physician who misdiagnosed a headache as a transitory problem and failed to detect a brain tumor may be guilty of negligence for the misdiagnosis, but it seems anomalous to hold the physician culpable under RCW 7.70.050 for failing to secure the patient's informed consent for treatment for the undetected tumor."
The Backlund court cited with approval Bays v. St. Luke's Hosp., 63 Wash. App. 876, 883 (1992), in which the Court of Appeals declined to create a second cause of action of informed consent predicated on the same facts required for negligence for a failure to diagnose a thromboembolism. The Court of Appeals stated that "the duty to disclose does not arise until the physician becomes aware of the condition by diagnosing it." Id. at 881.
The New Jersey appellate courts have ruled to the same effect. See Eagel v. Newman, 325 N.J. Super. 467, 475 (App. Div. 1999); Farina v. Kraus, 333 N.J. Super. 165, 178-179 (App. Div. 1999); Linquito v. Siegel, 370 N.J. Super. 21, 33 (App. Div. 2004) (informed consent doctrine does not apply where physician makes an improper diagnosis that there is no cancer; he cannot be expected to give the patient information necessary to determine whether additional diagnostic testing should be conducted). See also Brown v. Armstrong, 713 S.W.2d 725, 727 (Tex. Ct. App. 1986) (failure to diagnose tubal pregnancy constitutes negligence but no cause of action based on theory of informed consent); 3 Louisell and Williams, Medical Malpractice ยง 22.04 (2004). Cf. Pratt v. University of Minn. Affiliated Hosp. & Clinics, 414 N.W.2d 399, 402 (Minn. 1987) (principles of informed consent do not require informing patient that diagnosis may be incorrect). But see Marsingill v. O'Malley, 58 P.3d 495, 504-505 (Alaska 2002).
We consider persuasive the cases precluding an additional claim based on a theory of informed consent in circumstances similar to those here. The crux of the plaintiff's claim was Dr. Messer's failure properly to diagnose and to recognize the need for further tests. That failure gives rise to a claim for negligence but not to a claim on principles of informed consent.
Accordingly, the judge was correct in refusing to charge on informed consent.
Judgment affirmed.
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