Court: New Jersey Superior Court Appellate Division; April 25, 2005; New Jersey; State Appellate Court
The court, represented by Judge Axelrad, considered whether a patient, Walter Starozytnyk, could pursue legal action against his surgeon, Dr. Steven Reich, for battery, breach of contract, or breach of fiduciary duty after undergoing spinal fusion surgery without the specific vascular surgeon he believed would assist. The trial judge granted summary judgment in favor of Dr. Reich, ruling that the patient's lack of evidence for injury due to the absence of the expected vascular surgeon negated his claims. Starozytnyk had consented to the surgery based on Dr. Reich’s assurances that Dr. Alan Graham, a highly regarded vascular surgeon, would be present. Despite his reservations about the procedure, Starozytnyk was persuaded to proceed after Dr. Reich emphasized Dr. Graham's qualifications. Prior to the surgery, Starozytnyk learned that Dr. Graham would not be available, but did not communicate with any other surgeons involved. The patient signed a consent form allowing Dr. Reich and his designated assistants to perform the operation, which was carried out by Dr. Reich with two other surgeons, excluding Dr. Graham. The court affirmed the trial judge's decision to dismiss the case.
Two to three days after surgery, the plaintiff experienced severe pain in his right leg and swelling in his right big toe, alongside abdominal distension that was later diagnosed as an intestinal blockage through X-rays. The plaintiff sought clarification from Dr. Graham, mistakenly believing he was the vascular surgeon, only to learn that Dr. Graham had not performed the surgery. During a previous consultation with Dr. Reich, the plaintiff inquired about the actual vascular surgeon, and Dr. Reich incorrectly identified Dr. Graham, leading to a heated exchange where Dr. Reich became agitated when unable to locate the correct information.
On November 16, 2001, both Dr. Graham and Dr. Crowley testified they were unaware of any agreement regarding Dr. Graham’s exclusive assistance during the surgery. Dr. Graham explained that the choice of assisting surgeon depended on availability or specific patient requests, while Dr. Crowley noted his notifications came from Dr. Reich’s secretary. Dr. Reich denied ever assuring the plaintiff that Dr. Graham would assist in the surgery. However, for the sake of his summary judgment motion, Dr. Reich acknowledged the plaintiff's claim that he had promised Dr. Graham's assistance but ultimately used Dr. Crowley instead.
The plaintiff subsequently suffered significant residual effects from the surgery, as detailed in a February 10, 2004, expert report by Dr. Allan D. Tiedrich, which indicated that the surgery resulted in retrograde ejaculation and reflex sympathetic dystrophy (RSD), as well as an exacerbation of pre-existing back pain. These injuries were deemed permanent with a poor prognosis but were not attributed to negligence, instead being recognized risks of the surgery. Additionally, notes from the plaintiff’s psychiatrist, Dr. Jose Vasquez, documented the plaintiff's mental state post-surgery, indicating depression and anxiety related to his deteriorating physical condition.
On November 3, 1999, the plaintiff filed a lawsuit against Dr. Reich, Dr. Crowley, Dr. Stefan, Dr. Graham, and Robert Wood Johnson University Hospital, alleging negligence, lack of informed consent, battery, and breach of contract, seeking compensatory and punitive damages. The plaintiff's wife also made a per quod claim. Subsequently, the plaintiff dismissed claims against the hospital and all doctors except Dr. Reich and abandoned his general malpractice claim after being prompted by a motion to dismiss for lack of an expert report on standard of care deviation.
Dr. Reich moved for summary judgment, arguing that the plaintiff failed to provide an expert report on deviation and proximate cause. The court found no battery claim since the plaintiff consented to the surgery. It also ruled that the breach of contract and lack of informed consent claims were deficient due to the absence of a demonstrated link between the alleged breach and resulting damages. The court stated that despite credibility issues between Dr. Reich and the plaintiff, there was no evidence of proximate cause for damages, including emotional distress, to support punitive damages, leading to the dismissal of all claims against Dr. Reich.
On appeal, the plaintiff argued that the trial court erred in dismissing the claims, asserting that a breach of contract and fiduciary duty exists between doctor and patient. The plaintiff cited a prior court order regarding an expert report on proximate cause and damages, claimed emotional distress from the surgical procedure, and contended that material facts existed warranting a jury trial on surgical misrepresentation. However, the appellate court affirmed the dismissal of the battery claim for lack of cause and the breach of contract and fiduciary duty claims for failing to allege proximately caused injury. The plaintiff relied on the case of Perna to assert that Dr. Reich's actions constituted fraud and that he should be entitled to damages for mental anguish or punitive damages, regardless of negligence.
Plaintiff cites Dr. Vasquez's notes as evidence of emotional distress after learning Dr. Graham did not participate in his surgery. He claims a breach of contract, asserting he was specifically informed that a certain physician would handle the vascular portion of his operation, which influenced his consent. Plaintiff references Dr. Tiedrich’s report as linking the surgery to his injuries, addressing proximate cause, damages, and permanency, thus opposing summary judgment. The defendant argues that a battery claim is unsupported due to the absence of non-consensual touching, maintaining that the plaintiff consented to the operation. Citing the case of Howard, the defendant insists that claims of deviation from the standard of care and lack of informed consent necessitate proof of proximate cause, which he contends the plaintiff fails to establish regarding the injuries linked to Dr. Crowley’s involvement instead of Dr. Graham. The defendant also asserts that Dr. Tiedrich’s report does not connect the plaintiff’s injuries to Dr. Crowley. The document references the Perna case, where a patient learned post-surgery that a different physician performed the operation, which led to claims of malpractice and lack of informed consent. The court found that the patient did not provide informed consent for the "ghost surgeons" who operated without the named surgeon being present.
The Court characterized the case as a battery, ruling that the plaintiff could recover damages from the ghost surgeons for injuries resulting from the operation, irrespective of negligence. Under a battery theory, unauthorized medical actions, even if not harmful, entitle the patient to at least nominal damages and potentially damages for mental anguish and punitive damages related to the lack of consent. A different standard applied to Dr. Pirozzi, the non-operating surgeon, relating to a breach of his fiduciary duty and agreement to perform the procedure himself after obtaining consent. While a breach of contract claim could be considered, it is generally more appropriate to frame the claim as a breach of the duty of care, although the absence of damages may weaken such an action. The plaintiff did not assert a breach of contract. In a related case, the Court ruled that a fraud claim regarding a neurosurgeon's misrepresentation was unavailable due to the patient’s condition post-surgery; however, a claim for lack of informed consent was permissible. The Court recognized three potential claims against a physician: medical malpractice (deviation from standard care), lack of informed consent, and battery, all of which are viewed as sub-groups of medical negligence. The historical context showed that while informed consent arose from battery claims, it has now evolved into a negligence framework. Early cases established that performing a procedure without consent constituted battery, leading to liability for damages.
By the mid-twentieth century, legal analysis around consent evolved from simple consent to informed consent, reflecting a balance between the patient's need for information and the physician's discretion on what to disclose. In New Jersey, informed consent is framed as a negligence concept requiring physicians to provide patients with sufficient information to make knowledgeable decisions regarding treatment options and associated risks. For a patient to succeed in a claim of lack of informed consent, they must demonstrate that the physician withheld significant medical information about risks, alternatives, or consequences of not undergoing the treatment. Additionally, the patient must establish causation, proving that a reasonable person in their position would have declined the treatment if fully informed.
To establish a prima facie case for medical negligence based on lack of informed consent, four elements must be shown: 1) the physician did not meet the reasonably prudent patient standard for disclosure; 2) the undisclosed risk materialized and caused harm; 3) a reasonable person would have chosen not to consent if informed; and 4) the procedure was a proximate cause of the injuries. The damages analysis compares the plaintiff's condition if properly informed against their impaired condition resulting from the risk occurrence.
Moreover, in informed consent cases, the plaintiff must meet a two-pronged causation test: proving that the undisclosed risk materialized and that it was caused by the treatment. A separate cause of action for medical battery exists where surgery is performed without consent, classifying it as unauthorized touching. Battery is an intentional tort applicable when a patient consents to one procedure but the physician performs a substantially different one, or when no consent is obtained at all.
In a battery claim, a patient is not required to show that a physician deviated from disclosure or performance standards. An operation conducted without any consent qualifies as battery, potentially allowing for nominal and punitive damages regardless of the operation's success. The case of Perna is noted for its unique circumstance where the consent was invalidated due to an unauthorized individual performing the procedure, contrasting with the current case where the patient consented to the primary surgeon, Dr. Reich. The court clarified that a battery claim applies only in instances of "ghost surgery" or when no consent is given. If consent is granted, only a lack of informed consent claim is viable, focusing on the adequacy of disclosure about risks and alternatives. Additionally, the court rejected extending common law to allow deceit-based claims arising solely from the doctor-patient relationship, as this could bypass traditional proof requirements for informed consent. In the present case, the plaintiff chose to proceed solely against Dr. Reich and dismissed claims against assisting surgeons. The court determined that a battery claim cannot arise against a primary surgeon who substitutes another qualified assistant. The plaintiff failed to provide evidence of deviations in care or injuries linked to the substitution of the assisting surgeon, nor did he demonstrate a lack of informed consent from a reasonable patient's perspective regarding the surgery.
Dr. Tiedrich indicated that Dr. Reich's spinal surgery worsened the plaintiff's existing pain and led to significant lower extremity pain, reflex sympathetic dystrophy, and retrograde ejaculation. However, there is no evidence linking these conditions to Dr. Reich's negligence. The only condition involving vascular surgery, retrograde ejaculation, was a known surgical risk acknowledged by the plaintiff in his deposition. He confirmed understanding this risk and consented to the surgery with that knowledge. Dr. Reich had also advised the plaintiff to consider sperm donation prior to the procedure, further indicating that retrograde ejaculation was a recognized risk.
Even if the plaintiff could seek damages for a breach of fiduciary duty, there was no evidence of emotional distress stemming from learning that Dr. Graham did not perform the vascular surgery. The plaintiff's deposition reflected only his disbelief at Dr. Reich's reaction when confronted with this information. Dr. Vasquez's post-surgery notes documented the plaintiff's depression and anxiety related to his medical condition but did not mention emotional distress due to feelings of betrayal regarding the surgical team. The plaintiff failed to present additional evidence of his emotional state.
The court, in reviewing the motion for summary judgment, accepted the plaintiff's claims as true and assumed he had been promised Dr. Graham's assistance during surgery. However, it concluded that the plaintiff could not pursue a battery claim against Dr. Reich due to the absence of non-consensual touching, thereby barring the case from jury consideration for nominal or punitive damages. The court also dismissed the remaining claims due to a lack of proximate cause for the alleged injuries, and the decision was affirmed. The case management conference noted the plaintiff's efforts to locate Ms. Rudolph, while Dr. Vasquez had been treating the plaintiff for depression and anxiety related to a prior work accident since 1995. Dr. Tiedrich's report, submitted after the deadline, was considered but its merits were not addressed in this ruling.
