Duty Of Candor

The New Jersey Supreme Court recently decided a significant medical malpractice case involving the applicable standard of care, the "extent to which medical emergencies fall outside the doctrine of informed consent" and "whether post-surgical communications from a physician to the members of a patient's family may give rise to a fraud-based cause of action..." A question relating to the duty of candor to opposing counsel is briefly discussed at the conclusion of the opinion.

The defendant's expert had opined at deposition that the injury could have been caused in one of two ways. The expert advised counsel shorthy before trial that there was a single cause. While finding there was an obligation by defense counsel to advise plaintff's counsel of the material change, the change conformed to the plaintiff's theory and causation was conceded. Thus, the ethical lapse did not cause prejudice to plaintiffs. (Mike Frisch)