Skip to main content



White v. Miller

A-0775-08T3 (N.J. Super. App. Div. 2009) (Unpublished)

CONTRACTS; MISTAKE — Where there is a unilateral mistake of fact, such as the consequences of a laser procedure to be done by a doctor, and the mistaken party was not unreasonable in what made the mistake, the contract may be set aside especially where such rescission causes no serious prejudice to the other party.

A prospective patient contracted with a physician to perform cosmetic laser surgery. Prior to deciding whether to go forward with the procedure, he had several consultations with the physician. On each occasion, he was informed that he needed to stay out of direct sunlight for a six-month period before and after the surgery. The prospective patient signed a financial agreement that provided: (a) for a non-refundable booking fee; and (b) if he cancelled his surgery date less than five days prior to surgery, he would lose his entire fee. He signed the agreement and then later learned that there were additional side-effects from the surgery that were not disclosed to him by the physician. Based on this information, he called the physician more than five days before the surgery and told her he wanted to cancel the procedure. However, he formally cancelled the appointment less than five days before the surgery date. The physician claimed that she explained all the risks to her prospective patient and, instead of giving a refund, offered only a credit. The prospective patient sued.

The lower court ruled in favor of the prospective patient, finding that there had not been a meeting of the minds as to the consequences of the laser procedure. It held that when the prospective patient called the doctor, he cancelled the surgery as of that date (which was more than five days before the surgery date). The Court subtracted the non-refundable booking fee and awarded the prospective patient the balance of the amount paid. The physician appealed.

The Appellate Division affirmed. It held that the record supported the lower court’s determination that the contract was the result of a unilateral mistake of fact as to the consequences of the laser procedure. It found that although the doctor may have regarded her explanation as sufficient to convey information as to all side-effects, her explanation did not do so. The Court believed that the consequences of the surgery were clearly material to the contract and that it would be unconscionable to enforce a contract absent the patient’s full knowledge of those consequences. Further, it believed there was nothing in the record to suggest that the prospective patient was unreasonable in not fully recognizing the consequences of the procedure, and that rescission caused no serious prejudice to the doctor, other than the loss of the bargain and an office expense of less than $1,000.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com