On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2165-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Lyons.
Plaintiff Jenny Wang appeals from an order entered on November 9, 2006, dismissing with prejudice plaintiff's complaint against defendant John Shi. The following factual and procedural history is relevant to our consideration of the issue advanced on appeal.
On August 7, 2002, Jie Bin, mother of the then-infant plaintiff, Jenny Wang, took her daughter to Doctor Shi for a dental examination. This was plaintiff's first visit to Dr. Shi. Her last dental visit before seeing Dr. Shi was with Dr. Wu in March 2001. She saw Dr. Shi because her parents had changed dental insurance plans. According to plaintiff's proffer, after Dr. Shi finished the examination of plaintiff, he discussed his findings with her mother. Dr. Shi told Jie Bin that he had found ten cavities and that dental restoration was recommended. According to Jie Bin, she was skeptical because up to that point in time plaintiff had no evidence of any cavities.
Plaintiff returned to Dr. Shi the next day for a dental cleaning and on September 3, returned to have restorations done on three teeth. Plaintiff and her mother were dissatisfied with the information they received and the type of fillings used by Dr. Shi. Accordingly, they returned to Dr. Wu on September 24, 2002. On March 18, 2002, Dr. Wu conducted a complete examination of plaintiff's teeth and found no cavities. In December 2002, plaintiff's counsel sent plaintiff for a dental examination by another dentist, Dr. Allan Monack, who, after conducting an examination, opined that there were no cavities. Furthermore, Dr. Monack opined that, in the absence of cavities on the seven teeth which Dr. Shi had identified as having cavities, he would conclude by inference that there were no cavities on the three teeth which Dr. Shi said had cavities. Defendant proffers that he did not misrepresent plaintiff's condition and that the cavities existed and required treatment.
On August 12, 2003, plaintiff filed suit against Dr. Ecker and Dr. Shi. Dr. Ecker was named defendant on theories of vicarious liability but was voluntarily dismissed from the case on September 7, 2005. The complaint against Dr. Shi contained two counts. In the first count, plaintiff alleged that Dr. Shi committed dental malpractice by deviating from accepted standards of dental care. In the second count of the complaint, plaintiff alleged that Dr. Shi intentionally and with intent to deceive plaintiff misrepresented the true condition of plaintiff's teeth so as to induce plaintiff to rely on his dental evaluation and thereby undertake treatment that was in fact not needed.
On the morning of trial, September 12, 2006, plaintiff advised the court that she would be withdrawing her dental malpractice claim and instead proceeding solely on the intentional misrepresentation claim. Defendant then responded with an in limine motion for a dismissal for failure to state a cause of action. Defendant argued that a cause of action for fraud did not exist in law with respect to the delivery of medical or dental services based upon the Supreme Court's decision in Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537 (2002).
The trial court heard oral argument and reviewed pertinent case law. The trial judge found that there was no case brought to his attention where a fraud case standing alone can be asserted against a doctor or a dentist. He did not find Howard to be distinguishable and, based on the language in Howard, granted the motion to dismiss with prejudice. Plaintiff filed a motion for leave to supplement the record, which the court granted as to both plaintiff and defendant. A timely notice of appeal was subsequently filed.
On appeal, plaintiff alleges that she was prepared to prove misrepresentation by defendant with respect to the condition of plaintiff's teeth and that this misrepresentation induced her to undertake restorative procedures. Plaintiff argues that a cause of action for fraud lies as an exception to Howard and that, therefore, the dismissal of the complaint by the trial court was error. We disagree.
Plaintiff argues that defendant's misrepresentation of the condition of plaintiff's teeth "induced" her to proceed with "unnecessary surgery." Plaintiff claims that the trial court's reliance on Howard was misplaced. Plaintiff argues, citing to Tonelli v. Khanna, 238 N.J. Super. 121 (App. Div.), certif. denied, 121 N.J. 657 (1990), that Howard recognizes an exception where a plaintiff was induced by misrepresentation to proceed with unnecessary surgery.
Defendant argues that Howard holds that concealment or failure to disclose a physician's own malpractice does not give rise to a claim of fraud or deceit, independent of medical malpractice. Defendant argues that plaintiff's reliance on Tonelli is misplaced because the plaintiff in Tonelli pursued a medical malpractice claim as well as her misrepresentation claim.
We disagree with plaintiff's argument that Howard recognized an exception for a claim for medical misrepresentation or fraud ...