On appeal from the Superior Court of New Jersey, Law Division, Bergen County, BER-L-5998-00.
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Winkelstein & Fuentes.
Plaintiff, David Murphy, injured his back at work. He claims that contrary to his wishes, defendant doctors implanted cadaver ("allograft") bone in his spine during back surgery. In his complaint, he alleged medical negligence based on a lack of informed consent; battery; and breach of contract; and his wife, Marilyn Murphy, claimed a loss of consortium.*fn1
The case was tried in December 2003. After the completion of plaintiff's case, the court dismissed the complaint pursuant to Rule 4:37-2(b). On appeal, in an unpublished decision, we affirmed the dismissal of the informed consent claim, but reversed the dismissal of, and reinstated, plaintiff's battery and breach of contract claims, and his wife's per quod claim. Murphy v. Implicito, No. A-3172-03 (App. Div. Sept. 22, 2005).
Prior to the retrial, the parties requested that the trial court determine the scope of damages plaintiffs could potentially recover. Accordingly, on November 17, 2006, the trial court entered an order limiting plaintiff's recovery to damages caused directly by the use of cadaver bone material. The court also limited plaintiff's wife's per quod recovery to the battery claim and barred her per quod claim for breach of contract. We granted plaintiff's emergent application for leave to appeal and now reverse and modify the trial judge's order.
In September 1996, plaintiff injured his back while lifting a pallet at work, causing him "horrific" pain, and leaving him unable to sleep, sit in a chair, or lie down. His treating physician referred him to defendant Dr. Dante Implicito, an orthopedic surgeon. After conservative treatment was unsuccessful, Dr. Implicito proposed surgery to remove pieces of bone from plaintiff's spine and replace them with bone grafts. Plaintiff alleges he consented to the surgery only on the condition that the doctor not place cadaver bone in his spine, and the doctor agreed to use plaintiff's own bone material ("autograft" bone). The doctor testified that he did not recall this discussion.
At the request of plaintiff's workers compensation carrier, he received a second opinion from another orthopedic surgeon, defendant Dr. George Jacobs, who agreed that plaintiff needed surgery. Plaintiff testified that he also informed Dr. Jacobs, who was to act as a co-surgeon with Dr. Implicito, that he did not want cadaver bone used in the surgery, and that the doctor agreed not to use it. Dr. Jacobs denied this conversation.
On the day of the surgery, July 22, 1997, plaintiff signed a consent-to-surgery form, which was also to be signed by a doctor. The form described the surgery as a "lumbar diskectomy and fusion with iliac crest bone graft 'steffe plates.'" Murphy, supra, No. A-3172-03 (slip op. at 4). Though someone had signed the form on the line where a doctor was to sign, both doctors denied signing it.
During the surgery, the doctors removed bone fragments and grafted plaintiff's own bone to his spine. They also used cadaver bone as dowels for the bone graft. Defendants do not dispute that they used cadaver bone in the surgery.
The grafted bone did not fuse, and consequently, because plaintiff remained in pain and continued to be totally disabled, his workers compensation carrier referred him to another orthopedist, Dr. Steven Reich. After reviewing an x-ray of plaintiff's spine, Dr. Reich informed him that cadaver bone had been used in the surgery. Plaintiff asserts that upon learning that defendants used cadaver bone in the surgery, he became so upset that he bent a chair in the doctor's office. During his deposition, Dr. Reich, who did not testify at trial, could not remember plaintiff having that reaction to the information.
Dr. Reich subsequently performed a second surgery, without using cadaver bone. He removed all the material from the first surgery, including the cadaver bone. After the second surgery, plaintiff continued to experience pain and remained totally disabled.
At the first trial, no expert opined that the first surgery failed because of the use of cadaver bone. Plaintiff's expert, Dr. Hervie Sicherman, testified that non-fusion is a recognized potential outcome of the surgery. All of the parties' experts agreed that the use of allograft bone created no increased risk of fusion failure.
Plaintiff's position on the motion to determine the scope of damages was that defendants failed to abide by the condition he placed on the surgery - that defendants not use cadaver bone - and that the breach of that condition constituted both a breach of contract and a battery. As such, plaintiff asserted he was entitled to recover damages not only directly arising from the use of cadaver bone, but all damages arising out of the surgery, including his resultant disability. Defendants, on the other hand, argued that plaintiff could only recover for the disability that he could prove directly resulted from the use of cadaver bone.
The court essentially agreed with defendants' position. While ruling that plaintiff may be entitled to nominal damages and damages for any psychological injury he suffered by virtue of defendants' use of cadaver bone, the judge limited plaintiff's potential recovery for pain, suffering and disability to damages "created by the use of a component part, that is, the use of the cadaver bone." The judge distinguished the New Jersey Supreme Court's decision in Perna v. Pirozzi, 92 N.J. 446, 460-61 (1983), which permits the jury to consider and award all damages arising out of a surgery performed without a patient's consent. The judge concluded that in Perna, because the physicians were not authorized to conduct the surgery at all, all of the damages related to the surgery were available to the plaintiff. Here, however, the judge found that the entire surgery was not at issue, but simply one component part of the surgery - the implantation of cadaver bone. Specifically, the court said: "the [Perna] case discussed battery in the context of unauthorized touching of another, which, again, is not the aspect that the battery played in this case. There was no unauthorized touching of the plaintiff. There was unauthorized use of a particular material . . . ."
The judge also denied Marilyn Murphy's claim for per quod damages arising from the breach of contract claim. He stated: "I would think, the per quod claim is limited to the damages, which flow from the defendant's alleged tort of battery. The [c]court is not aware of authority for . . . per quod damages [for] breach of contract."
To support his damages claims, plaintiff proposes to offer at retrial the testimony of both Dr. Reich and Dr. Sicherman that the cadaver bone caused the failure of the first surgery. Because plaintiff did not proceed on that theory during the first trial, defendants object to him presenting such evidence at the retrial.
We begin our discussion with the question of whether plaintiff may offer new evidence and additional theories of liability at the retrial. In Franklin Disc. Co. v. Ford, 27 N.J. 473, 492 ...