It is well settled that a patient in a medical negligence action has three avenues of relief against a physician: (1) deviation from the standard of care; (2) lack of informed consent; and (3) battery. Newmark-Shortino v. Buna, 427 N.J. Super. 285, 302 (App. Div. 2012), certif. denied, 213 N.J. 45 (2013); citing Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 545 (2002). “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.’” Ibid. (quoting Teilhaber v. Greene, 320 N.J. Super. 453, 463 (App. Div. 1999).
Informed consent differs from breach of standard of care, as the key to an informed consent claim is the doctor’s duty to provide material information to the patient in order to permit the patient to make informed decisions regarding their care and treatment. Informed consent is a negligence concept “predicated upon the duty to disclose to a patient such information as will enable the patient to make an evaluation of the nature of the treatment and any attendant substantial risks as well as of available options” in treatment or otherwise. Largey v Rothman, 110 N.J. 204, 208 (1988). Informed consent is defined by the “prudent patient” standard, which is what a reasonable patient would expect to hear from the doctor, not what the doctor believes he should inform the patient. Id. It is predicated on “the patient’s right to self-determination.” Canesi v. Wilson, 158 N.J. 490, 503-4. “Informed consent obligates a doctor to disclose material risks inherent in a procedure or course of treatment so that the patient can make an informed decision.” Matthies v. Mastromonaco, 160 N.J. 26, 36 (1999). A patient must be provided “sufficient information to enable them to ‘evaluate knowingly’ the available options in their course of treatment.” Perna v. Pirozzi, 92 N.J. 446, 459 (1983).
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