On appeal from the Superior Court, Appellate Division, whose opinion is reported at 338 N.J. Super. 33 (2001).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The Court addresses the possible causes of action available to an injured party who claims that a physician misrepresented his credentials and experience at the time he obtained the claimant's consent to surgery.
Joseph Howard came under the care of Dr. Robert Heary in February 1997 for neck pain and related claims. Howard had a history of cervical spine disease. Following a 1991 car accident, Howard was examined by doctors who determined that he had severe spinal stenosis and recommended that he undergo surgery, which Howard declined to do, even though the condition was worsening progressively.
In January of 1997, Howard was involved in another car accident causing, among other things, a cervical and low back injuries. Howard sought the care of Dr. Boston Martin, who had treated him after the 1991 accident. Dr. Martin concluded that Howard's spinal condittion had worsened significantly and recommended that he be seen at the University of Medicine and Dentistry of New Jersey (UMDNJ) by Dr. Heary, a Professor of Neurology and the Director of UMDNJ's Spine Center of New Jersey.
Dr. Heary had two pre-operative consultations with Howard. In the first consultation, Dr. Heary determined that Mr. Howard needed surgery to correct a cervical myelopathy secondary to cervical stenosis and a significantly large C3-C4 disc herniation. Because of the serious nature of the surgery, Dr. Heary recommended that Mrs. Howard attend a second consultation. What transpired during that meeting is in dispute. Dr. Heary claims that he informed the Howards of the significant risks of the surgery, including paralysis. The Howards deny that they were informed of such risks. In addition, the Howards contend that Dr. Heary told them that he was Board Certified and that he had performed approximately sixty corpectomies each year in the past eleven years. Mrs. Howard claims that she was opposed to the surgery but that she and her husband decided to go through with it based on Dr. Heary's specific claims of skill and experience. Dr. Heary denies that he represented that he was Board Certified in Neurosurgery and that he claimed to have performed sixty corpectomies per year for eleven years.
Dr. Heary performed the surgical procedure on March 5, 1997, but it was unsuccessful. The Howard's filed a malpractice action alleging that Mr. Howard was rendered a quadriplegic as a result of Dr. Heary's negligence. The Howard's moved to amend their complaint to add a count of fraud based on Dr. Heary's alleged misrepresentation of his experience and credentials. The trial court denied the motion, finding that a fraud count would cloud the issues presented.
The Appellate Division granted leave to appeal and reversed and remanded with the direction to the trial court to allow amendment of the complaint to allege a deceit-based claim. The Appellate Division held that the denial of the motion to amend the complaint violated the interests-of-justice standard. Further, the panel disagreed that the Howard's would be required to prove negligent performance of the surgery in order to recover damages under the deceit-based claim. The Appellate Division likened the claim for fraudulent misrepresentation to a claim for battery, when a doctor, other than the one authorized under principles of informed consent, performs the surgery. In such circumstances, proof of negligent performance by the doctor would not be required.
The Supreme Court granted Dr. Heary's motion for leave to appeal.
HELD: A fraud or deceit-based claim is unavailable to address the claim that the physician misrepresented his skill and credentials during the pre-surgery consultation. However, The Howards may attempt to prove that Dr. Heary's alleged misrepresentations about his credentials and experience presents a claim based on lack of informed consent to the surgical procedure.
1. A plaintiff has several avenues of relief against a doctor: 1) deviation from the standard of care (medical malpractice); 2) lack of informed consent; and 3) battery. The Howards' motion to amend the complaint raises the question whether a patient's consent to surgery obtained through alleged misrepresentations about the doctor's professional experience and credentials is properly addressed in a claim of lack of conformed consent, battery, or whether it should constitute a separate and distinct claim based on fraud. (Pp. 7)
2.. A plaintiff seeking to recover under a theory of lack of informed consent must prove that a reasonably prudent patient in his or her position, if apprised of the material risks, would have elected a different course of treatment or care. In addition, the claimant must meet a two-pronged test of causation: 1) that the undisclosed risk actually materialized; and 2) that it was medically caused by the treatment. (Pp. 8-13)
3. A medical battery cause of action exists where a doctor performs surgery without consent, rendering the surgery an unauthorized touching. A battery exists where the patient consents to one type of operation but the physician performs a substantially different one from the one for which consent was obtained or where no consent is obtained. "Ghost surgery" has also been considered a battery where one surgeon obtains the informed consent from the patient and another surgeon performs the operation without the knowledge of the patient. (Pp. 13-17)
4. Common law should be extended to allow a novel fraud or deceit-based cause of action in this doctor-patient context that would allow for the possibility of punitive damages and would circumvent the requirements for proof of both causation and damages imposed in a traditional informed consent setting. This is especially so when the damages from this alleged fraud arise exclusively from the doctor-patient relationship involving the corpectomy procedure. (Pp. 17-20)
5. In certain circumstances, a serious misrepresentation concerning the quality or extent of a physician's professional experience, viewed from the perspective of the reasonably prudent patient assessing the risks associated with a medical procedure, can be material to the grant of intelligent and informed consent to the procedure. Howard claims that Dr. Heary's misrepresentations induced him to consent to the procedure, and its risk of paralysis, that he would not have undergone had he known the truth about Dr. Heary's qualifications. This claim is founded on a lack of informed consent. However, the Howards must prove that the additional undisclosed risk posed by Dr. Heary's level of qualifications and experience increased the risk of paralysis from the corpectomy procedure. (Pp. 20-26)
6. Misrepresented or exaggerated physician experience would have to significantly increase the risk of a procedure in order for it to affect the judgment of a reasonably prudent patient in an informed consent case. The proximate cause analysis will involve a two step inquiry. First, whether the more limited experience or credentials possessed by Dr. Heary could have substantially increased Mr. Howard's risk of paralysis from undergoing the corpectomy procedure. Expert testimony would be required for such a showing. The second inquiry would be whether that substantially increased risk would cause a reasonably prudent patient not to consent to the procedure. To satisfy the damages element, the plaintiff would have to show a causal connection between the inadequately undisclosed risk of the procedure and the injury sustained. (Pp. 26-29)
Judgment of the Appellate Division is REVERSED IN PART and AFFIRMED IN PART. The matter is REMANDED to the trial court to allow the Howards the opportunity to amend the complaint to allege lack of informed consent.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, VERNIERO, and ZAZZALI join in
JUSTICE LaVECCHIA'S opinion.
The opinion of the court was delivered by: ...