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Medical malpractice cases may soon take on a new dimension, allowing plaintiffs to sue doctors for fudging their credentials, if a New Jersey Appellate Division ruling last Tuesday gains wide acceptance. The appeals court, in Joseph Howard, et al. v. University of Medicine and Dentistry et al., A-774-00T5, reversed a trial court’s refusal to allow the plaintiff to amend his medical malpractice complaint to include a charge of fraudulent misrepresentation. “This creates a fourth cause of action,” says the plaintiff’s lawyer, Bruce Nagel. “You’ve had negligence, breach of informed consent and battery, and now you have fraud. It’s a significant and distinct cause of action.” According to the opinion, Robert Heary, a neurosurgeon at Newark, N.J.’s University of Medicine and Dentistry of New Jersey, operated in March 1997 on Howard, who suffered from cervical myelopathy secondary to cervical stenosis and disc herniation. The surgery did not succeed. Howard is now a quadriplegic. During depositions in June 2000, Heary testified that he became board-certified two years after he performed the surgery on Howard, and that he had performed “a couple of dozen” similar surgeries before the time of Howard’s surgery. That contradicted Howard’s recollection of what Heary told him before his surgery, according to the plaintiff. In his proffered amended complaint, Howard said Heary told him that he was board-certified and that he had performed about 60 similar surgeries during an 11-year period. Heary submitted a certification denying that he made such a claim to Howard, and the trial judge refused to allow Nagel to file an amended complaint on Howard’s behalf. Appellate Division Judge Jack Lintner, joined by Judges Philip Carchman and David Baime, said the right to sue for fraudulent misrepresentation follows the logic of two previous rulings dealing with causes of action ancillary to medical malpractice claims. In Perna v. Pirozzi, 92 N.J. 446 (1983), the supreme court permitted a patient’s claim against a doctor who did not operate as promised, but rather had another physician perform the surgery. “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,” the court wrote. “Few decisions bespeak greater trust and confidence than the decision of a patient to proceed with surgery.” In the second case, Tonelli v. Khanna, 238 N.J. Super. 121 (App. Div. 1990), an appeals court carved out an exception to the rule that battery is not available as a cause of action where the patient has consented to surgery. Where consent was allegedly obtained by fraud or misrepresentation, a claim for battery may be pursued, the judges found. A similar situation could have occurred with Howard, which leads to the fraudulent misrepresentation claim. “Here, plaintiff’s deceit-based claim is not marginal,” Lintner wrote. “If Dr. Heary lied about his qualifications and experience, then a jury could find that he misled plaintiff as to the abilities and, hence, the true identity of the physician who would perform the surgery. “Under such circumstances, plaintiff is entitled to damages for injuries proximately caused by the surgery if plaintiff can show reasonable reliance and detriment. Like battery, the alleged deceit goes directly to the description of the person whom the patient authorized and believed was to perform the surgery, thus resulting in an abrogation of plaintiff’s consent.” And, said Lintner, if the action is predicated on battery, the plaintiff is not required to show that the doctor deviated from the appropriate standard of care in performing the surgery. “Even if harmless, plaintiff is entitled to nominal damages for ‘an unauthorized invasion of the plaintiff’s person,’ ” he said, quoting Tonelli. Howard could seek punitive damages if it can be shown that Heary committed an “evil-minded act” or an act accompanied by willful and wanton disregard for Howard’s rights, wrote Lintner. Nagel, a partner at Livingston’s Nagel, Rice, Dreifuss & Mazie, says the ruling may expose doctors to significant punitive damages. “Fraud is not covered by most insurance policies,” says Nagel. Heary’s lawyer, Matthew Schorr, says the ruling is an outgrowth of the courts’ decisions in Perna and Tonelli. “It appears to me that the courts laid the groundwork for this in prior opinions,” says Schorr, a partner at Springfield, N.J.’s McDonough, Korn & Eichhorn. “The court never actually came out until now and set forth what seems to be a new cause of action,” he says. “It’s tied into informed consent.” Kenneth Andres Jr., a medical malpractice lawyer and a partner at Haddonfield, N.J.’s Andres & Berger, says the ruling makes sense, given the rulings in Perna and Tonelli. “In some respects, it is new law. I view it as a logical extension of the law of informed consent and the tort of battery,” says Andres.

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