On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-11235- 98.
Before Judges King, Lefelt and Axelrad.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 7, 2001
This is a medical-malpractice case in an unusual context. The four-count complaint asserts several theories of liability negligence and malpractice, lack of informed consent, assault and battery, breach of contract, and product liability. Plaintiff never served an affidavit of merit on defendant pursuant to N.J.S.A. 2A:53A-27. The Law Division judge dismissed plaintiff's complaint because of this default. We affirm as to the dismissal of the negligence, malpractice and lack of professional informed- consent counts; we reverse on the claims based upon assault and battery, breach of contract, and product liability.
Plaintiff, Jane Darwin, age 32, alleges in her complaint and certification that she sought treatment for heroin addiction from defendant, Lance L. Gooberman, M.D. She learned of defendant from an advertisement in a newspaper. She contacted defendant, scheduled an appointment, and arrived in his Merchantville, Camden County office on December 17, 1996.
Plaintiff said that defendant and his staff performed no medical tests on her during the appointment and asked for scant medical history. Plaintiff understood the process would "clean out her system and that she would get an opiate blocker, which she thought to be an oral medication." She did not expect the invasive procedure performed. She claimed very little information was offered concerning the procedure she would undergo. She was told of the procedure's success rate and given some admonitions concerning possible discomfort for a few days. She certified:
He did not tell me that they were going to cut into my arm and implant something in my arm. I did not know about that until I woke up and my arm was sore and I saw stitches in my arm.
Although this record is silent as to whether plaintiff signed a written consent form, the second count of her complaint states "she was not sufficiently informed of her legal and medical rights prior to giving her consent for the invasive procedure." Defendant charged plaintiff $2,800 for the procedure, a payment she made by certified check that day, December 17, 1996.
During this December 17th appointment, plaintiff had a naltrexone pellet implanted into her left arm. Her blood pressure was taken and anesthesia administered for the procedure. She was not certain who administered the anesthesia or who implanted the pellet. She thought the pellet would dissolve in her arm in about ten days.
The treatment, known as "Ultra Rapid Opiate Detoxification," is allegedly, as claimed by defendant, a "swift and relatively painless cure for heroin addicts who are anesthetized while drugs cleanse their brain of heroin."
Under rapid opiate detox, a patient is administered several drugs that compress withdrawal from heroin from about 10 days into about four hours, while the patient is under general anesthesia. During that time, the drugs remove opiates from receptors in the brain.
Awakening from the procedure, plaintiff says she experienced nausea and weakness. In her certification, plaintiff related:
My stomach felt like it was on fire; I was dizzy; I could not even stand up on my own. About 15 to 20 minutes after I woke up, I was told to go home even though I felt horrible and was very sick. Several employees took me by wheelchair to my friend's car, picked me up and put me in the car. I could not do it on my own.
Defendant allegedly provided no follow-up instructions other than "syringes with medicine" for her to administer if she suffered diarrhea. Defendant's staff scheduled no follow-up visits for plaintiff but advised her that "future blockers might be necessary at approximately $300 each and if I wanted them I had to come back for them."
Darwin alleges her symptoms worsened, the pellet failed to dissolve, and her arm became severely infected. By telephone, defendant prescribed antibiotics to her pharmacy. However, she remained nauseous, weak, suffered diarrhea, and could not use her arm. Defendant's staff responded to her calls, advising her to give it more time. Plaintiff then visited an emergency room twice and visited her local physician. Ultimately, the undissolved pellet was surgically removed, allegedly leaving lingering infection, pain and scarring.
Plaintiff filed her four-count complaint on December 10, 1998, a week before the bar of the statute of limitations. The first count pleads a conventional medical-malpractice negligence action. The second count pleads a lack of informed "consent for the invasive procedure" but also pleads an "assault and battery." The third count states "the plaintiff paid $2800 for the procedure which procedure was not authorized and for which plaintiff is now seeking return of her money [$2800] ... because of breach of contract." The fourth count asserts that "defendant used a product and impliedly warranted that it was both merchantable and fit for the intended use." Plaintiff claims that "later activity showed it was not, that the product's use was not FDA approved."
We construe the second count as a hybrid of lack of informed consent and assault and battery. We construe the third count as a breach-of-contract claim and the fourth count as a product- liability claim. As noted, we affirm in part and reverse in part.
Defendant moved to dismiss on September 29, 1999 for failure to serve an affidavit of merit. Plaintiff's counsel filed his own certification with his brief of October 18, 1999 in response to defendant's motion in support of his claim of "extraordinary circumstances," excusing the need for an affidavit of merit. Counsel attached photocopies of October 1999 newspaper articles from The New York Times, The Bergen Record, and The Philadelphia Inquirer to his certification. The articles ...