Safer v. Estate of Pack

• Decision Date: 11 July 1996
• Parties: , 65 USLW 2103 Donna SAFER and Robert Safer, Plaintiffs-Appellants, v. The ESTATE OF George T. PACK; Helen W. Pack; George T. Pack, Jr.; Christopher Charles Pack; Malcolm Jonathan Pack; Tacy Dorothea Pack; and Clytie Helen Pack, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 619

291 N.J.Super. 619

677 A.2d 1188, 65 USLW 2103

Donna SAFER and Robert Safer, Plaintiffs-Appellants, v. The ESTATE OF George T. PACK; Helen W. Pack; George T Pack, Jr.; Christopher Charles Pack; Malcolm Jonathan Pack; Tacy Dorothea Pack; and Clytie Helen Pack Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued March 19, 1996.

Decided July 11, 1996.

Jeffrey A. Donner, Bernardsville, for appellants (Shain, Schaffer & Rafanello, attorneys; Mr. Donner, of counsel, and, with Todd R. Staretz, on the brief).

Nancy Crosta Landale, Springfield, for respondents (McDonough, Korn, Eichhorn & Boyle, attorneys; R. Scott Eichhorn, of counsel; Ms. Landale, on the brief).

Before Judges A.M. STEIN, KESTIN and CUFF.

The opinion of the court was delivered by

KESTIN, J.A.D.

Plaintiffs appeal from the trial court's order dismissing their complaint and denying their cross-motion for partial summary judgment as to liability only. We reverse that portion of the order dismissing the complaint and affirm the denial of plaintiffs' motion.

Donna Safer's claim arises from the patient-physician relationship in the 1950s and 1960s between her father, Robert Batkin, a resident of New Jersey, and Dr. George T. Pack, also a resident of New Jersey, who practiced medicine and surgery in New York City and treated Mr. Batkin there. It is alleged that Dr. Pack specialized in the treatment and removal of cancerous tumors and growths.

In November 1956, Mr. Batkin was admitted to the hospital with a pre-operative diagnosis of retroperitoneal cancer. A week later, Dr. Pack performed a total colectomy and an ileosigmoidectomy for multiple polyposis of the colon with malignant degeneration in one area. The discharge summary noted the finding in a pathology report of the existence of adenocarcinoma developing in an intestinal polyp, and diffuse intestinal polyposis "from one end of the colon to the other." Dr. Pack continued to treat Mr. Batkin postoperatively.

In October 1961, Mr. Batkin was again hospitalized. Dr. Pack performed an ileoabdominal perineal resection with an ileostomy. The discharge summary reported pathology findings of "ulcerative adenocarcinoma of colon Grade II with metastases to Levels II and III" and "adenomatous polyps." Dr. Pack again continued to treat Mr. Batkin postoperatively. He also developed a physician-patient relationship with Mrs. Batkin relative to the diagnosis and treatment of a vaginal ulcer.

In December 1963, Mr. Batkin was hospitalized once again at Dr. Pack's direction. The carcinoma of the colon had metastasized to the liver with secondary jaundice and probable retroperitoneal disease causing pressure on the sciatic nerve plexus. After some treatment, Mr. Batkin died on January 3, 1964, at forty-five years of age. Donna was ten years old at the time of her father's death. Her sister was seventeen.

In February 1990, Donna Safer, then thirty-six years of age and newly married, residing in Connecticut, began to experience lower abdominal pain. Examinations and tests revealed a cancerous blockage of the colon and multiple polyposis. In March, Ms. Safer underwent a total abdominal colectomy with ileorectal anastamosis. A primary carcinoma in the sigmoid colon was found to extend through the serosa of the bowel and multiple polyps were seen throughout the entire bowel. Because of the detection of additional metastatic adenocarcinoma and carcinoma, plaintiff's left ovary was also removed. Between April 1990 and mid-1991, Ms. Safer underwent chemotherapy treatment.

In September 1991, plaintiffs obtained Robert Batkin's medical records, from which they learned that he had suffered from polyposis. Their complaint was filed in March 1992, alleging a violation of duty (professional negligence) on the part of Dr. Pack in his failure to warn of the risk to Donna Safer's health.

Plaintiffs contend that multiple polyposis is a hereditary condition that, if undiscovered and untreated, invariably leads to metastatic colorectal cancer. They contend, further, that the hereditary nature of the disease was known at the time Dr. Pack was treating Mr. Batkin and that the physician was required, by medical standards then prevailing, to warn those at risk so that they might have the benefits of early examination, monitoring, detection and treatment, that would provide opportunity to avoid the most baneful consequences of the condition.

The summary judgment proceeding in the trial court was based upon a scanty record, largely comprised of hospital records. Dr. Pack himself had died in 1969; none of his individual records were before the court. The reports of the parties' medical experts and a deposition of plaintiffs' expert were submitted. Ida Batkin, Donna Safer's mother, had also given a deposition in which she testified, among other details, that neither her husband nor Dr. Pack had ever told her that Mr. Batkin suffered from cancer; and that, throughout the courses of surgery and treatment, Dr. Pack advised her that he was treating a "blockage" or an unspecified "infection". On the one or two occasions when Mrs. Batkin inquired of Dr. Pack whether the "infection" would affect her children, she was told not to worry.

In dismissing, the trial court held that a physician had no "legal duty to warn a child of a patient of a genetic risk[.]" In the absence of any evidence whether Dr. Pack had warned Mr. Batkin to provide information concerning his disease for the benefit of his children, the motion judge "assume[d] that Dr. Pack did not tell Robert Batkin of the genetic disease."

The motion judge's reasoning proceeded from the following legal premise: "[i]n order for a doctor to have a duty to warn, there must be a patient/physician relationship or circumstances requiring the protection of the public health or the community [at] large." Finding no physician-patient relationship between Dr. Pack and his patient's daughter Donna, the court then held genetically transmissible diseases to differ from contagious or infectious diseases or threats of harm in respect of the duty to warn, because "the harm is already present within the non-patient child, as opposed to being introduced, by a patient who was not warned to stay away. The patient is taking no action in which to cause the child harm."

The motion judge relied on Pate v. Threlkel, 640 So.2d 183 (Fla.Dist.Ct.App.1994), as the only "on point" authority respecting genetically transmissible disease. In holding that a physician owed the patient's child no duty to warn, the Florida Court of Appeals had expressly rejected the general approach of the New Jersey Supreme Court in Schroeder v. Perkel, 87 N.J. 53, 63-65, 432 A.2d 834 (1981), on related questions of foreseeability and duty.

The Florida Supreme Court has since dealt with the issue, reaching a contrary conclusion. Pate v. Threlkel, 661 So.2d 278 (1995). Because the case had initially been decided on defendants' motions to dismiss the complaint for failure to state a cause of action, the Supreme Court was required to

accept as true the [plaintiffs'] allegations that pursuant to the prevailing standard of care, the health care providers were under a duty to warn [the patient] of the importance of testing her children for [the genetically transmissible] carcinoma.

[Id. at 281.]

The court held:

[W]hen the prevailing standard of care creates a duty that is obviously for the benefit of certain identified third parties and the physician knows of the existence of those third parties, then the physician's duty runs to those third parties. Therefore, in accord with our decision in Baskerville-Donovan Engineers, [Inc. v. Pensacola Executive House Condominium Ass'n, 581 So.2d 1301 (Fla.1991) ], we hold that privity does not bar Heidi Pate's pursuit of a medical malpractice action. Our holding is likewise in accord with McCain [v. Florida Power Corp., 593 So.2d 500 (Fla.1992) ] because under the duty alleged in this case, a patient's children fall within the zone of foreseeable risk.

* * * Our holding should not be read to require the physician to warn the patient's children of the disease. In most instances the physician is prohibited from disclosing the patient's medical condition to others except with the patient's permission. See § 455.241(2), Fla.Stat. (1989). Moreover, the patient ordinarily can be expected to pass on the warning. To require the physician to seek out and warn various members of the patient's family would often be difficult or impractical and would place too heavy a burden upon the physician. Thus, we emphasize that in any circumstances in which the physician has a duty to warn of a genetically transferable disease, that duty will be satisfied by warning the patient.

[Pate v. Threlkel, supra, 661 So.2d at 282.]

Because the issue before us arose on a motion for summary judgment, we, too, are obliged to accept plaintiffs' proffer through their medical expert that the prevailing standard of care at the time Dr. Pack treated Mr. Batkin required the physician to warn of the known genetic threat. The legal standard of care, knowledge and skill is that which is "ordinarily possessed and exercised in similar situations by the average member of the profession practicing in the field." Schueler v. Strelinger, 43 N.J. 330, 344, 204 A.2d 577 (1964). Whether the conduct of a practitioner in established circumstances at a particular time comported with prevailing standards of care is preeminently a question to be determined by the finder of fact, not an issue of law to be resolved by the court. Campo v. Tama, 133 N.J. 123, 133, 627 A.2d 135 (1993); Lopez v. Swyer, 115 N.J.Super. 237, 251, 279 A.2d 116 (App.Div.1971), aff'd, 62 N.J. 267, 300 A.2d 563 (1973). Where, as here, a genuine issue of fact in this regard is presented, the matter is not amenable to resolution on summary judgment. R. 4:46-2; Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 528-30, 536-37,...