The New Jersey Supreme Court has long been committed to the principle that a patient should be fully informed about the benefits and risks associated with medical treatment. Generally, a patient has a cause of action for the breach of the duty to obtain informed consent when:

1. the treatment rendered was associated with a known risk, and
2. plaintiff was not advised of the risk, and
3. the risk occurred, and
4. a reasonable person in the plaintiff's position would have rejected the treatment.

See Model Jury Charge (Civil) 5.50C.

Significantly, the standard for disclosure is imposed by law and not medical consensus. Largey v. Rothman, 110 N.J. 204 (1988). The Largey court held that the “breadth of disclosure” is measured by what it deemed to be an “objective standard” established not by either the subjective standards or expectations of either the physician or patient. Instead, Largey instructed that “the law must set the standard for adequate disclosure,” and therefore, the standard for disclosure is to be determined by the trial court as a matter of law.

Largey has been followed by a line of cases which have defined and expanded the scope of the duty to obtain informed consent. However, despite all of the discussion devoted to this topic, the number of meritorious informed consent cases are few. Informed consent generally only applies to elective procedures (see Petrolia v. Estate of Nova, 284 N.J. Super. 585 (App. Div. 1995) and Posta v. Chueng-Loy, 306 N.J. Super. 182 (App. Div. 1997)) and the failure to inform of the need for treatment, often called “informed refusal.” See Matthies v. Mastromonaco, 160 N.J. 26 (1999) and Battenfeld v. Gregory, 247 N.J. Super. 538 (App. Div. 1991).