On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-2366- 99.
Before Judges Baime, Carchman and Lintner.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiffs, Joseph and Marie Howard, appeal an order denying their motion to amend their complaint to include a count for fraudulent misrepresentations against defendant, Dr. Robert F. Heary. Leave to appeal, R. 2:2-4, was granted on October 4, 2000. We now reverse.
Joseph Howard*fn1 suffered from cervical myelopathy secondary to cervical stenosis and a significantly large C3-C4 disc herniation. On March 5, 1997, he underwent surgical intervention consisting of anterior cervical decompressions with corpectomies of the C4, C5 and C6 vertebral bodies. The surgery was not successful and plaintiff was rendered a quadriplegic. Dr. Heary, a neurosurgeon and assistant professor at the University of Medicine and Dentistry in Newark (UMDNJ), performed the surgery. On March 4, 1999, plaintiff filed a complaint alleging that Dr Heary and others at UMDNJ were negligent, having deviated from the standard of care required for his treatment and care.
Dr. Heary's deposition was conducted on June 9, 2000, at which time he testified that he became board certified more than two years after he performed the surgery on plaintiff. He also testified that he had performed "a couple of dozen" similar procedures prior to the time of plaintiff's surgery. Plaintiff's deposition was taken on June 22, 2000. Plaintiff testified that, prior to deciding to undergo surgery and in response to specific inquiries made by his wife, Dr. Heary advised that he was board certified and had performed approximately sixty similar operations per year for a period of eleven years. Plaintiff's motion to amend the complaint was filed on July 17, 2000, in response to which Dr. Heary submitted a certification denying that he had made the representations claimed by plaintiff.
Plaintiff contends the denial of his motion to amend was error, while defendant asserts that it was properly denied. Both parties raise the entire controversy doctrine. Plaintiff argues that the doctrine requires joinder of the fraud and negligence claims. Defendant counters that plaintiff's fraud based claim has no merit and plaintiff has waived the entire controversy doctrine by not pleading it as an affirmative defense.
Generally, leave to amend is to be freely given without consideration of the ultimate merits of the amendment. Kernan v. One Washington Park, 154 N.J. 437, 456 (1998). Nevertheless, the denial of a motion to amend where "the interests of justice require" is addressed to the sound discretion of the court. Wm. Blanchard Co. v. Beach Concrete Co. Inc., 150 N.J. Super. 277, 299 (App. Div.), certif. den., 75 N.J. 528 (1977). We have observed that "denial of such a motion in the 'interests of justice' is usually only required when there would be prejudice to another party." Brower v. Gonnella, 222 N.J. Super. 75, 80 (App. Div. 1987). Thus, we have held that, even though a plaintiff may be precluded from filing a subsequent action under the entire controversy doctrine where leave to amend to assert a different cause of action is denied, such denial is not an abuse of discretion where the amendment is so late as to prejudice other parties. Wm. Blanchard, supra, 150 N.J. Super. at 299. Likewise, it is not an abuse of discretion to deny amendments on the eve of trial nor should late amendments be permitted at the last minute as to do so would "afford a refuge to languid or dilatory litigants." Branch v. Emery Transportation Co., 53 N.J. Super. 367, 375 (App. Div. 1958); see Jackson v. Georgia-Pacific Corp., 296 N.J. Super. 1, 10-11 (App. Div. 1996), certif. den., 149 N.J. 141 (1997).
Here, the record reflects that the timing of the motion to amend was not prejudicial to defendant, as the trial date had been adjourned to sometime in December and was not imminent. We are satisfied that defendant has not presented any showing of undue prejudice that would qualify to support the proposition that leave to amend was properly denied in the interest of justice.
Dr. Heary argues that the motion judge's refusal to permit the amendment was proper because plaintiff's claim based upon deceit is "marginal at best." He asserts that, in order to recover damages for the alleged misrepresentations, plaintiff must still prove that his quadriplegia resulted from defendant's negligent performance of the surgery. We disagree.
In Perna v. Pirozzi, 92 N.J. 446, 463 (1983), the Court discussed a patient's claim against a doctor who did not operate as promised but, instead, had another doctor perform the surgery. In reaching its holding that any non-consensual touching is battery, the Court in Perna pointed out the importance of the decision making process that a patient goes through when deciding to undergo surgery. The court observed:
Even more private than the decision who may touch one's body is the decision who may cut it open and invade it with hands and instruments.
Few decisions bespeak greater trust and confidence than the decision of a patient to proceed with ...