[279] Nolan Carter of Law Offices of Nolan Carter, P.A., Orlando, for petitioners.

J. Brent Jones of Hannah, Marsee & Voght, P.A., Orlando; and Francis E. Pierce, III of Gurney & Handley, P.A., Orlando, for respondents.

WELLS, Justice.

We have for review the following question certified to be of great public importance:

DOES A PHYSICIAN OWE A DUTY OF CARE TO THE CHILDREN OF A PATIENT TO WARN THE PATIENT OF THE GENETICALLY TRANSFERABLE NATURE OF THE CONDITION FOR WHICH THE PHYSICIAN IS TREATING THE PATIENT?

Pate v. Threlkel, 640 So.2d 183, 186 (Fla. 1st DCA 1994). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the question in the affirmative provided the children of the patient first establish that pursuant to the prevailing standard of care set forth in section 766.102, Florida Statutes (1989), a reasonably prudent physician would give such warning to his or her patient in light of all relevant circumstances.

In March 1987, Marianne New received treatment for medullary thyroid carcinoma, a genetically transferable disease. In 1990, Heidi Pate, New's adult daughter, learned that she also had medullary thyroid carcinoma. Consequently, Pate and her husband filed a complaint against the physicians who initially treated New for the disease as well as the physicians' respective employers. Pate and her husband alleged that the physicians knew or should have known of the likelihood that New's children would have inherited the condition genetically; that the physicians were under a duty to warn New that her children should be tested for the disease; that had New been warned in 1987, she would have had her children tested at that time; and if Pate had been tested in 1987, she would have taken preventative action, and her condition, more likely than not, would have been curable. Pate claimed that as a direct and proximate cause of the physicians' negligence, she suffers from advanced medullary thyroid carcinoma and its various damaging effects.^[1]

The respondent health care providers moved to dismiss the complaint for failure to state a cause of action. Specifically, the respondents alleged that Pate did not demonstrate the existence of a professional relationship between her and respondents and thus failed to establish that respondents owed her a duty of care. The trial court granted the motion and dismissed the Pates' complaint with prejudice, finding that the plaintiffs were not patients of the respondents [280] and that they did not fit within any exception to the requirement that there be a physician-patient relationship between the parties as a condition precedent to bringing a medical malpractice action.

The district court affirmed the trial court's dismissal. The court rejected the Pates' argument that it should, based upon past decisions recognizing a doctor's duty to inform others of a patient's contagious disease,^[2] extend a physician's duty to cover the child of a patient who suffers from an inheritable disease. The court also rejected the Pates' reliance on Schroeder v. Perkel, 87 N.J. 53, 432 A.2d 834 (1981), in which the parents of a four-year-old child brought suit against the child's pediatricians for failing to diagnose the child with cystic fibrosis early enough to prevent the parents from having a second diseased child. The New Jersey court in Schroeder recognized that due to the special nature of the family relationship, a physician's duty may extend beyond a patient to members of the patient's immediate family. Id. at 839.

In rejecting the Pates' claim, the district court focused upon the legal issue of duty. To define the concept of duty the court relied on our decision in McCain v. Florida Power Corp., 593 So.2d 500 (Fla. 1992). In McCain, we stated, "Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others." Id. at 503. A duty is thus established when the acts of a defendant in a particular case create a foreseeable zone of risk.^[3] Having defined when a duty arises, we went on to state that "each defendant who creates a risk is required to exercise prudent foresight whenever others may be injured as a result." Id. Relying on McCain, the district court recognized the existence of a physician's duty. The court, however, declined to extend the boundaries of that duty to include Heidi Pate. Specifically, the court held, "we feel constrained by the circumstances of this case and the law as it exists to hold that appellees' conduct in treating Marianne New did not create a foreseeable zone of risk encompassing Heidi Pate, and that the general rule of privity would apply to affirm the trial court's dismissal of the cause." Pate, 640 So.2d at 185.

We agree with the district court's focus on duty. We conclude that to answer the certified question we must consider two questions related to duty. First, we must determine whether New's physicians had a duty to warn New of the genetically transferable nature of her disease. We find that to make this determination we must apply section 766.102, Florida Statutes (1989), which defines the legal duty owed by a health care provider in a medical malpractice case. That section provides in part:

(1) In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s. 768.50(2)(b), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

§ 766.102, Fla. Stat. (1989). In applying this statute to the instant case, we conclude that a duty exists if the statutory standard of care requires a reasonably prudent health care provider to warn a patient of the genetically transferable nature of the condition for which the physician was treating the patient.

[281] In medical malpractice cases, the standard of care is determined by a consideration of expert testimony. Because this case comes to us on appeal from an order granting the physicians' motion to dismiss, the record has yet to be developed in respect to such testimony. However, the court's dismissal requires us to assume that the factual allegations in the complaint are true. Connolly v. Sebeco, Inc., 89 So.2d 482, 484 (Fla. 1956); Aaron v. Allstate Ins. Co., 559 So.2d 275, 276 (Fla. 4th DCA 1990), review denied, 569 So.2d 1278 (Fla. 1990); Thompson v. City of Jacksonville, 130 So.2d 105, 107 (Fla. 1st DCA 1961), cert. denied, 147 So.2d 530 (Fla. 1962). Accordingly, we must accept as true the Pates' allegations that pursuant to the prevailing standard of care, the health care providers were under a duty to warn New of the importance of testing her children for medullary thyroid carcinoma. Whether these allegations are supported by the statutorily required expert medical authority will have to be determined as the action progresses. We do note, however, that the plaintiffs have pled good-faith compliance with section 766.104, Florida Statutes (1989).^[4]

The second question we must address in answering the certified question is to whom does the alleged duty to warn New of the nature of her disease run? The duty obviously runs to the patient who is in privity with the physician. In the past, courts have held that in order to maintain a cause of action against a physician, privity must exist between the plaintiff and the physician. See Joseph v. Shafey, 580 So.2d 160 (Fla. 3d DCA 1990), review denied, 592 So.2d 681 (Fla. 1991), Boynton v. Burglass, 590 So.2d 446 (Fla. 3d DCA 1991). In other professional relationships, however, we have recognized the rights of identified third party beneficiaries to recover from a professional because that party was the intended beneficiary of the prevailing standard of care. In such cases, we have determined that an absence of privity does not necessarily foreclose liability. Baskerville-Donovan Engineers, Inc. v. Pensacola Executive House Condominium Ass'n, 581 So.2d 1301 (Fla. 1991); First Florida Bank, N.A. v. Max Mitchell & Co., 558 So.2d 9 (Fla. 1990); First American Title Ins. Co. v. First Title Service Co., 457 So.2d 467 (Fla. 1984); see also McAbee v. Edwards, 340 So.2d 1167 (Fla. 4th DCA 1976). Specifically, we stated in Baskerville-Donovan Engineers:

[P]rivity between the parties may create a duty of care providing the basis of recovery in negligence. However, lack of privity does not necessarily foreclose liability if a duty of care is otherwise established. See, e.g., First Florida Bank, N.A. v. Max Mitchell & Co., 558 So.2d 9 (Fla. 1990); McAbee v. Edwards, 340 So.2d 1167 (Fla. 4th DCA 1976) (attorney preparing will has duty to client's intended beneficiaries). Thus, the two terms are not interchangeable. As the First District noted below:

Section 95.11(4)(a) is specifically limited in application "to persons in privity with a professional." The decision by the supreme court in First American Title Ins. Co. v. First Title Service Co., [457 So.2d 467 (Fla. 1984)], and its more recent decision in First Florida Bank, N.A. v. Max Mitchell & Co., 558 So.2d 9 (Fla. 1990), do not expand that limitation. Rather, those decisions relax the privity limitation on liability by expanding the class of persons who could bring a cause of action against a professional beyond those in strict contractual privity with the professional.

... .

[282] [I]t is clear that "privity" has not been redefined by the supreme court. Rather, by way of these opinions the court has simply identified parties not in direct contractual privity, or even in "near privity," who may sue the professional.

[Pensacola Executive House Condominium Ass'n v. Baskerville-Donovan Engineers, Inc.] 566 So.2d 850 at 852-53 [Fla. 1st DCA 1990] (emphasis in original).

Id. at 1303 (citation omitted) (emphasis added). We conclude that this analysis recognizing that privity is not always needed to establish liability should apply to the professional relationship between a patient's child and a health care provider.

Here, the alleged prevailing standard of care was obviously developed for the benefit of the patient's children as well as the patient. We conclude that when 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, we hold that privity does not bar Heidi Pate's pursuit of a medical malpractice action. Our holding is likewise in accord with McCain because under the duty alleged in this case, a patient's children fall within the zone of foreseeable risk.

Though not encompassed by the certified question, there is another issue which should be addressed in light of our holding. If there is a duty to warn, to whom must the physician convey the warning? 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.

Accordingly, we conclude that the trial court erred by dismissing the complaint with prejudice. Whether the Pates can recover for medical malpractice depends upon the prevailing standard of care pursuant to section 766.102. The pleadings were prematurely terminated based upon the trial court's conclusion that a lack of privity prevented the Pates from stating a cause of action. We therefore quash the decision of the district court affirming the dismissal of the complaint with prejudice and remand for further proceedings in accord with this opinion.

It is so ordered.

GRIMES, C.J., and OVERTON, KOGAN, HARDING and ANSTEAD, JJ., concur.

SHAW, J., concurs in result only.

[1] Pate's husband alleged that his damages included, in addition to medical expenses, loss of his wife's support, attention, services, affection, and consortium.

[2] See Hofmann v. Blackmon, 241 So.2d 752 (Fla. 4th DCA 1970), cert. denied, 245 So.2d 257 (Fla. 1971); Gill v. Hartford Accident & Indem. Co., 337 So.2d 420 (Fla. 2d DCA 1976).

[3] The facts of a particular case are not the only source that may give rise to a duty to avoid negligent acts. We have also recognized that a duty may arise from: (1) legislative enactments or administrative regulations; (2) judicial interpretations of such enactments or regulations; and (3) other judicial precedent. McCain, 593 So.2d at 503 n. 2 (citing Restatement (Second) of Torts § 285 (1965)).

[4] Section 766.104, Florida Statutes (1989), provides in part:

(1) No action shall be filed for personal injury or wrongful death arising out of medical negligence, whether in tort or contract, unless the attorney filing the action has made a reasonable investigation as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate of counsel that such reasonable investigation gave rise to a good faith belief that grounds exist for an action against each named defendant. For purposes of this section, good faith may be shown to exist if the claimant or his counsel has received a written opinion, which shall not be subject to discovery by an opposing party, of an expert as defined in s. 766.102 that there appears to be evidence of medical negligence.

[621] Before Judges A.M. STEIN, KESTIN and CUFF.

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

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

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 [622] 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.

[623] 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 [624] 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 [625] 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, 666 A.2d 146 (1995); Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 73-77, 110 A.2d 24 (1954); R. 4:46-2.

Whether a legal duty exists is, however, a matter of law. Strawn v. Canuso, 271 N.J. Super. 88, 100, 638 A.2d 141 (App.Div. 1994), aff'd, 140 N.J. 43, 657 A.2d 420 (1995). We see no impediment, legal or otherwise, to recognizing a physician's duty to warn those known to be at risk of avoidable harm from a genetically transmissible condition. In terms of foreseeability especially, there is no essential difference between the type of genetic threat at issue here and the menace of infection, contagion or a threat of physical harm. See generally, e.g., McIntosh v. Milano, 168 N.J. Super. 466, 483-85, 403 A.2d 500 (Law Div. 1979); Tarasoff v. [626] Regents of Univ. of Cal., 17 Cal.3d 425, 131 Cal. Rptr. 14, 24, 551 P.2d 334, 344 (1976); Restatement (Second) of Torts §§ 314, 314A (1965); T.A. Bateman, Annotation, Liability of Doctor or Other Health Practitioner to Third Party Contracting Contagious Disease from Doctor's Patient, 3 A.L.R. 5th 370 (1992). The individual or group at risk is easily identified, and substantial future harm may be averted or minimized by a timely and effective warning.

The motion judge's view of this case as one involving an unavoidable genetic condition gave too little significance to the proferred expert view that early monitoring of those at risk can effectively avert some of the more serious consequences a person with multiple polyposis might otherwise experience. We cannot conclude either, as the trial court did, that Dr. Pack breached no duty because avoidable harm to Donna was not foreseeable, i.e., "that Dr. Pack's conduct did not create a `foreseeable zone of risk.'" Such a determination would ignore the presumed state of medical knowledge at the time. It would also tend to undervalue the concepts that inform our case law establishing a cause of action for increased risk of harm, see Evers v. Dollinger, 95 N.J. 399, 412-17, 471 A.2d 405 (1984); see also Fischer v. Canario, 143 N.J. 235, 241-43, 670 A.2d 516 (1996); Scafidi v. Seiler, 119 N.J. 93, 108-09, 574 A.2d 398 (1990), as well as the underlying rationale of our rules of law on foreseeability, heretofore held to be specifically applicable in professional negligence cases involving genetic torts. See Schroeder v. Perkel, supra, 87 N.J. at 63-64, 432 A.2d 834.

Although an overly broad and general application of the physician's duty to warn might lead to confusion, conflict or unfairness in many types of circumstances, we are confident that the duty to warn of avertible risk from genetic causes, by definition a matter of familial concern, is sufficiently narrow to serve the interests of justice. Further, it is appropriate, for reasons already expressed by our Supreme Court, id. at 63-65, 432 A.2d 834, that the duty be seen as owed not only to the patient himself but that it also "extend[s] beyond the interests of a patient to members of the [627] immediate family of the patient who may be adversely affected by a breach of that duty." Id. at 65, 432 A.2d 834; cf. Fosgate v. Corona, 66 N.J. 268, 274, 330 A.2d 355 (1974) (patient's daughter-in-law and grandchildren, all members of her household but apparently not, themselves, defendant physician's patients, were entitled to recover for contracting tuberculosis as a result of defendant's malpractice in failing to diagnosis the disease in his patient). We need not decide, in the present posture of this case, how, precisely, that duty is to be discharged, especially with respect to young children who may be at risk, except to require that reasonable steps be taken to assure that the information reaches those likely to be affected or is made available for their benefit. We are aware of no direct evidence that has been developed concerning the nature of the communications between physician and patient regarding Mr. Batkin's disease: what Dr. Pack did or did not disclose; the advice he gave to Mr. Batkin, if any, concerning genetic factors and what ought to have been done in respect of those at risk; and the conduct or expressed preferences of Mr. Batkin in response thereto. There may be enough from Mrs. Batkin's testimony and other evidence for inferences to be drawn, however.

We decline to hold as the Florida Supreme Court did in Pate v. Threlkel, supra, 661 So.2d at 282, that, in all circumstances, the duty to warn will be satisfied by informing the patient. It may be necessary, at some stage, to resolve a conflict between the physician's broader duty to warn and his fidelity to an expressed preference of the patient that nothing be said to family members about the details of the disease. We cannot know presently, however, whether there is any likelihood that such a conflict may be shown to have existed in this matter or, if it did, what its qualities might have been. As the matter is currently constituted, it is as likely as not that no such conflict will be shown to have existed and that the only evidence on the issue will be Mrs. Batkin's testimony, including that she received no information, despite specific inquiry, that her children were at risk. We note, in addition, the possible existence of some offsetting evidence that [628] Donna was rectally examined as a young child, suggesting that the risk to her had been disclosed.

This case implicates serious and conflicting medical, social and legal policies, many aptly identified in Sonia M. Suter, Whose Genes Are These Anyway? Familial Conflicts Over Access to Genetic Information, 91 Mich. L.Rev. 1854 (1993) and in other sources, including some referred to by the motion judge. Some such policy considerations may need to be addressed in ultimately resolving this case. For example, if evidence is produced that will permit the jury to find that Dr. Pack received instructions from his patient not to disclose details of the illness or the fact of genetic risk, the court will be required to determine whether, as a matter of law, there are or ought to be any limits on physician-patient confidentiality, especially after the patient's death where a risk of harm survives the patient, as in the case of genetic consequences. See generally Janet A. Kobrin, Confidentiality of Genetic Information, 30 UCLA L.Rev. 1283 (1983).

Issues of fact remain to be resolved, as well. What was the extent of Donna's risk, for instance? We are led to understand from the experts' reports that the risk of multiple polyposis was significant and that, upon detection, an early full colectomy, i.e., an excision of her entire colon, may well have been the treatment of choice to avoid resultant cancer — including metastasis, the loss of other organs and the rigors of chemotherapy. Full factual development may, however, cast a different light on these issues of fact and others.

Difficult damage issues portend also. Not the least of these will involve distinguishing between the costs of the medical surveillance that would have followed a timely and effective warning, and the costs of medical care attributable to any breach of duty that may be found to have occurred. See Lanzet v. Greenberg, 126 N.J. 168, 188, 594 A.2d 1309 (1991).

Because of the necessarily limited scope of our consideration, we have highlighted only a few of the potentially troublesome issues presented by this case. Such questions are best conceived and [629] considered in the light of a fully developed record rather than in the abstract.

Although not raised by either party on appeal, it is also possible that, in resolving this case, the trial court will be called upon to determine whether and to what extent the law of the State of New York should apply rather than that of New Jersey. All of the medical services at the heart of plaintiffs' claims were rendered in New York City. Questions remain regarding when and where, as a matter of law, the tort of which plaintiffs complain was committed, and what effect the answers may have as to choice of law, see, e.g., Restatement (Second) of Conflict of Laws §§ 145, 146, 159, 163 (1971), a determination to be made on an issue by issue basis applying the flexible governmental interest analysis approach. Veazey v. Doremus, 103 N.J. 244, 248, 510 A.2d 1187 (1986); Grossman v. Club Med Sales, Inc., 273 N.J. Super. 42, 48-49, 640 A.2d 1194 (App.Div. 1994). Of course, if no issues of conflict of laws or the need to apply foreign law are raised, New Jersey law will continue to govern. Veazey v. Doremus, supra, 103 N.J. at 248, 510 A.2d 1187; Graulich Caterer, Inc. v. Hans Holterbosch, Inc., 101 N.J. Super. 61, 67, 243 A.2d 253 (App.Div. 1968).

The order of the trial court dismissing the complaint is reversed. For similar reasons, the trial court's order denying plaintiffs' motion for summary judgment on liability is affirmed. The matter is remanded to the trial court for further proceedings.