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Perna v. Pirozzi

Decided: March 2, 1983.


On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock and O'Hern. For affirmance -- None. The opinion of the Court was delivered by Pollock, J.


[92 NJ Page 449] This appeal challenges the validity of R. 4:21, which requires the pre-trial submission of medical malpractice claims to a panel consisting of a judge, an attorney and a physician. More specifically, the appeal questions whether a plaintiff may cross-examine a defendant-doctor about alleged prior inconsistent statements at a panel hearing and whether the trial court may refuse to permit a plaintiff to show possible bias of the panel-doctor in favor of the defendant-doctor. With respect to the latter issue, plaintiffs did not object to the doctor at the time of the panel hearing, but sought at trial to introduce a questionnaire in which the panel-doctor indicated that he knew the defendant-doctors. The appeal questions further whether R. 4:21 results in an unconstitutional denial of the right to trial by jury and of equal protection.

In addition, the appeal inquires about the nature of the cause of action of a patient who consents to surgery by one surgeon but is actually operated on by another surgeon. Plaintiffs resist the characterization of their cause of action as a battery and contend that a non-consensual substitution of one surgeon for another is more appropriately characterized as a violation of the doctrine of informed consent. We must determine whether that substitution, even when the two surgeons are engaged in a group practice, constitutes malpractice, a battery or both.

The medical malpractice panel unanimously found no basis for plaintiffs' claims of malpractice, but made no determination on the informed consent issue, which it found to be purely factual and, thus, not subject to panel disposition. See R. 4:21-2(d).

At trial, the panel determination was admitted in evidence. The trial court, however, refused to permit plaintiffs to show that the panel-doctor, in answer to a questionnaire submitted to prospective panelists, had stated that he was acquainted professionally with defendant Dr. Pirozzi. Also, the court refused to permit cross-examination of Dr. Pirozzi about prior inconsistent statements he allegedly made before the panel. The jury returned a verdict of no cause of action in favor of defendants.

In affirming the judgment of the trial court, the Appellate Division sustained the constitutionality of R. 4:21 and ruled that the operation by a doctor other than the one identified in the consent form is not malpractice, but a battery. 182 N.J. Super. 510 (1982). We granted certification, N.J. (1982).

We agree that R. 4:21 is constitutional and that the operation by the second physician may be considered to be a battery. However, we conclude that the trial court's refusal to permit plaintiffs to show possible bias of the panel-doctor and to impeach the testimony of the defendant-doctor constituted reversible error. Consequently, we reverse and remand the matter to the Law Division.


On the advice of his family physician, Thomas Perna entered St. Joseph's Hospital on May 8, 1977 for tests and a urological consultation. Mr. Perna consulted Dr. Pirozzi, a specialist in urology, who examined Mr. Perna and recommended that he undergo surgery for the removal of kidney stones.

Dr. Pirozzi was associated with a medical group that also included Drs. Del Gaizo and Ciccone. The doctors testified at trial that their medical group customarily shared patients; no doctor had individual patients, and each doctor was familiar with all cases under care of the group. Further, it was not the practice of the group to inform patients which member would operate; the physicians operated as a "team," and their regular practice was to decide just prior to the operation who was to operate. If, however, a patient requested a specific member of the group as his surgeon, that surgeon would perform the operation. Nothing indicated that Mr. Perna was aware of the group's custom of sharing patients or of their methods for assigning surgical duties.

Although Mr. Perna had never consulted with Dr. Del Gaizo or Dr. Ciccone, he had been treated by Dr. Pirozzi previously in conjunction with a bladder infection. According to Mr. Perna, he specifically requested Dr. Pirozzi to perform the operation. None of the defendants directly contradicted Mr. Perna's testimony. However, Dr. Ciccone testified that he met with Mr. Perna on May 16 and, without discussing who would operate, explained that two members of the medical group would be present during the operation. The following day, in the presence of a urological resident, Mr. Perna executed a consent form that named Dr. Pirozzi as the operating surgeon and authorized him, with the aid of unnamed "assistants," to perform the surgery.*fn1 In this context, the term "assistants" refers to medical

personnel, not necessarily doctors, who aid the operating surgeon. See Judicial Council of the American Medical Ass'n, op. 8.12 (1982) (reproduced in full at infra note 3). The operation was performed on May 18 by Dr. Del Gaizo, assisted by Dr. Ciccone. Dr. Pirozzi was not present during the operation; in fact, he was not on duty that day. At the time of surgery, Dr. Del Gaizo and Dr. Ciccone were unaware that only Dr. Pirozzi's name appeared on the consent form.

Mr. Perna first learned of the identities of the operating surgeons when he was readmitted to the hospital on June 11 because of post-surgical complications. Subsequently, Mr. and Mrs. Perna filed suit for malpractice against all three doctors, alleging four deviations from standard medical procedure concerning the diagnosis, treatment and surgery performed by the defendants. They further alleged that there was a failure to obtain Mr. Perna's informed consent to the operation performed by Dr. Del Gaizo. That is, plaintiffs claimed that Mr. Perna's consent to the operation was conditioned upon his belief that Dr. Pirozzi would be the surgeon.

Pursuant to R. 4:21, the matter proceeded to a mandatory hearing before a medical malpractice panel. The physician member of the panel, Dr. Litzky, had indicated in response to a questionnaire that he knew Dr. Pirozzi from attending professional meetings. Plaintiffs' counsel did not object to Dr. Litzky serving on the panel, which unanimously found no basis for the claims pertaining to the diagnosis, treatment and operation performed by defendants.

The case came on for trial before a jury. Notwithstanding the objection of plaintiffs' counsel, the unanimous panel findings were admitted into evidence in accordance with R. 4:21-5(c). Counsel contended that the absence of a record before the panel prevented effective cross-examination of Dr. Pirozzi on statements allegedly made at the panel hearing. Furthermore, plaintiffs' counsel unsuccessfully sought to introduce the answered questionnaire submitted by the panel doctor indicating that he was acquainted with Dr. Pirozzi from professional meetings attended by the two doctors.

In its original charge on informed consent, the trial court instructed the jury:

Should you determine with regard to the first operation of May 18, 1977, the plaintiff's consent to the operation was based on the fact that Dr. Pirozzi was to perform the operation and that that was his understanding with the doctor and further determine that such failure of informed consent constituted a deviation from accepted medical standards and that if there was such deviation constituting medical malpractice, it was the proximate cause as I will define that term for you of the plaintiff's damages, then you must find for the plaintiff on this issue. However, should you determine that with regard to the first operation of May 18, 1977, there was no understanding that Dr. Pirozzi would perform the operation or that any two members of the group would perform it or that such failure of informed consent was not such deviation from accepted medical standards as to ...

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