Perna v. Pirozzi (457 A.2d 431) 1983

…On the advice of his family physician, Thomas Perna entered St. Joseph's Hospital on May 8, 1977 for tests and a urological consultation. Mr. Perna consulted Dr. Pirozzi, a specialist in urology, who examined Mr. Perna and recommended that he undergo surgery for the removal of kidney stones.

Dr. Pirozzi was associated with a medical group that also included Drs. Del Gaizo and Ciccone. The doctors testified at trial that their medical group customarily shared patients; no doctor had individual patients, and each doctor was familiar with all cases under care of the group. Further, it was not the practice of the group to inform patients which member would operate; the physicians operated as a "team," and their regular practice was to decide just prior to the operation who was to operate. If, however, a patient requested a specific member of the group as his surgeon, that surgeon would perform the operation. Nothing indicated that Mr. Perna was aware of the group's custom of sharing patients or of their methods for assigning surgical duties.

Although Mr. Perna had never consulted with Dr. Del Gaizo or Dr. Ciccone, he had been treated by Dr. Pirozzi previously in conjunction with a bladder infection. According to Mr. Perna, he specifically requested Dr. Pirozzi to perform the operation. None of the defendants directly contradicted Mr. Perna's testimony. However, Dr. Ciccone testified that he met with Mr. Perna on May 16 and, without discussing who would operate, explained that two members of the medical group would be present during the operation. The following day, in the presence of a urological resident, Mr. Perna executed a consent form that named Dr. Pirozzi as the operating surgeon and authorized him, with the aid of unnamed "assistants," to perform the surgery. n1 In this context, the term "assistants" refers to medical personnel, not necessarily doctors, who aid the operating surgeon. See Judicial Council of the American Medical Ass'n, op. 8.12 (1982)…. The operation was performed on May 18 by Dr. Del Gaizo, assisted by Dr. Ciccone. Dr. Pirozzi was not present during the operation; in fact, he was not on duty that day. At the time of surgery, Dr. Del Gaizo and Dr. Ciccone were unaware that only Dr. Pirozzi's name appeared on the consent form.

Mr. Perna first learned of the identities of the operating surgeons when he was readmitted to the hospital on June 11 because of post-surgical complications. Subsequently, Mr. and Mrs. Perna filed suit for malpractice against all three doctors, alleging four deviations from standard medical procedure concerning the diagnosis, treatment and surgery performed by the defendants. They further alleged that there was a failure to obtain Mr. Perna's informed consent to the operation performed by Dr. Del Gaizo. That is, plaintiffs claimed that Mr. Perna's consent to the operation was conditioned upon his belief that Dr. Pirozzi would be the surgeon.

[T]he matter proceeded to a mandatory hearing before a medical malpractice panel. The physician member of the panel, Dr. Litzky, had indicated in response to a questionnaire that he knew Dr. Pirozzi from attending professional meetings. Plaintiffs' counsel did not object to Dr. Litzky serving on the panel, which unanimously found no basis for the claims pertaining to the diagnosis, treatment and operation performed by defendants….

The case came on for trial before a jury. Notwithstanding the objection of plaintiffs' counsel, the unanimous panel findings were admitted into evidence…. Counsel contended that the absence of a record before the panel prevented effective cross-examination of Dr. Pirozzi on statements allegedly made at the panel hearing. Furthermore, plaintiffs' counsel unsuccessfully sought to introduce the answered questionnaire submitted by the panel doctor indicating that he was acquainted with Dr. Pirozzi from professional meetings attended by the two doctors….

Rule 4:21 is an attempt, in the interests of the medical and legal professions and the public, to solve some of the problems of medical malpractice suits. R. 4:21-1. The purpose of the rule is to process "medical malpractice actions with the view toward discouraging baseless actions and encouraging settlement of those actions based on reasonable medical probability; to monitor efficiently these cases through the courts; and to assist in the early disposition of medical malpractice actions." Id. In practice, the rule requires the pretrial screening of medical malpractice actions, except those in which the sole factual issue is one of witness credibility, by a three-member panel composed of a Superior Court judge, an attorney and a physician.

At the time of their selection, the attorney and physician are required to "disclose any circumstances likely to create a presumption of bias or which they believe might otherwise disqualify them." R. 4:21-5(b). The disclosed information is forwarded to all parties, after which they have 15 days to object to the designation of the attorney or doctor. R. 4:21-4(b).

The panel hearing is informal and without a verbatim record, and the proceeding is confidential and in camera. R. 4:21-7. Except as otherwise provided in R. 4:21-5, no statement or expression of opinion made at the hearing is admissible in evidence at trial. If the panel is unanimous in its finding as to whether there was malpractice, that finding is admissible at trial upon the request of any party to the hearing. The recommendation is not binding upon the trier of fact, but shall be accorded such weight as the jury or the judge sitting as the trier of the facts chooses to ascribe to it in view of all the relevant information adduced at trial. R. 4:21-5(e).

A unanimous recommendation, however, poses a serious obstacle to adverse parties. Corbo v. Crutchlow (1981). Although not binding, the panel's findings may predetermine the outcome of a trial. We have recognized the importance of the recommendation by declaring that the physician panelist may be called as a witness at trial under R. 4:21-5(d) to challenge his credibility, interest or bias and the weight to be accorded the panel report.

In this case, plaintiffs did not object to Dr. Litzky serving as the panel-doctor, and did not call him as a witness at trial. Over objection, however, the trial court prohibited plaintiffs' counsel from mentioning in his opening statement that Dr. Litzky was the physician member of the panel and that he knew Dr. Pirozzi. The ruling further precluded plaintiffs' counsel from introducing into evidence the questionnaire answered by Dr. Litzky in which he stated that he had seen Dr. Pirozzi at professional meetings. In making its ruling, the trial court relied on Evid.R. 4, which authorizes a trial court, in its discretion, to exclude evidence if it finds that the probative value of the evidence "is substantially outweighed by the risk that its admission will either . . . necessitate undue consumption of time or . . . create a substantial danger of undue prejudice or of confusing the issues or of misleading the jury…."

The judgment below is reversed, and the matter remanded for a new trial in which plaintiffs may introduce evidence as to bias of the physician member of the R. 4:21 panel and also may cross-examine Dr. Pirozzi about prior inconsistent statements before the panel….

In light of our ruling that plaintiffs must be allowed to offer evidence relevant to the bias of panel members, we find it unnecessary to decide whether the admission at trial of the panel determination imposes an unconstitutional burden on the right to trial by jury. As noted, the absence of a transcript of the panel proceedings creates difficulties for parties seeking to cross-examine the physician member of the panel or any other physician who testifies both before the panel and at trial. However, the absence of a transcript of the panel hearing is not tantamount in all cases to deprivation of the right to trial by jury. Although the absence of a transcript impairs the effectiveness of cross-examination based on a prior inconsistent statement made at a panel hearing, a party otherwise may embark on full scale cross-examination….

We now address the nature of the claim resulting from the performance of the operation by a physician other than the one named in the consent form, so-called "ghost surgery." If the claim is characterized as a failure to obtain informed consent, the operation may constitute an act of medical malpractice; if, however, it is viewed as a failure to obtain any consent, it is better classified as a battery.

Informed consent is a negligence concept predicated on the duty of a physician to disclose to a patient information that will enable him to "evaluate knowledgeably the options available and the risks attendant upon each" before subjecting that patient to a course of treatment….

In an action predicated upon a battery, a patient need not prove initially that the physician has deviated from a professional standard of care. Under a battery theory, proof of an unauthorized invasion of the plaintiff's person, even if harmless, entitles him to nominal damages…. The plaintiff may further recover for all injuries proximately caused by the mere performance of the operation, whether the result of negligence or not…. If an operation is properly performed, albeit by a surgeon operating without the consent of the patient, and the patient suffers no injuries except those which foreseeably follow from the operation, then a jury could find that the substitution of surgeons did not cause any compensable injury. Even there, however, a jury could award damages for mental anguish resulting from the belated knowledge that the operation was performed by a doctor to whom the patient had not given consent. Furthermore, because battery connotes an intentional invasion of another's rights, punitive damages may be assessed in an appropriate case….

The plaintiffs here do not challenge the adequacy of the disclosure of information relating to risks inherent in the operation performed. Nor do they contend that Mr. Perna would have decided not to undergo the operation if additional facts had been provided to him. In short, they concede Perna consented to an operation by Dr. Pirozzi. However, plaintiffs contend that two other surgeons operated on him without his consent. If that contention is correct, the operating surgeons violated the patient's right to control his own body….

Any non-consensual touching is a battery. 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. Absent an emergency, patients have the right to determine not only whether surgery is to be performed on them, but who shall perform it. A surgeon who operates without the patient's consent engages in the unauthorized touching of another and, thus, commits a battery….

A nonconsensual operation remains a battery even if performed skillfully and to the benefit of the patient. The medical profession itself recognizes that it is unethical to mislead a patient as to the identity of the doctor who performs the operation. American College of Surgeons, Statements on Principles, § I.A. (June 1981). Participation in such a deception is a recognized cause for discipline by the medical profession. See American College of Surgeons, Bylaws, art. VII, § 1(c) (as amended June 1976). By statute, the State Board of Medical Examiners is empowered to prevent the professional certification or future professional practice of a person who "[h]as engaged in the use or employment of dishonesty, fraud, deception, misrepresentation, false promise or false pretense . . . ." N.J.S.A. 45:1-21. Consequently, a statutory, as well as a moral, imperative compels doctors to be honest with their patients.

A different theory applies to the claim against Dr. Pirozzi. As to him, the action follows from the alleged breach of his agreement to operate and the fiduciary duty he owed his patient. With respect to that allegation, the Judicial Council of the American Medical Association has decried the substitution of one surgeon for another without the consent of the patient, describing that practice as a "deceit." A patient has the right to choose the surgeon who will operate on him and to refuse to accept a substitute. Correlative to that right is the duty of the doctor to provide his or her personal services in accordance with the agreement with the patient. Judicial Council of the American Medical Ass'n, Op. 8.12 (1982).

Few decisions bespeak greater trust and confidence than the decision of a patient to proceed with surgery. Implicit in that decision is a willingness of the patient to put his or her life in the hands of a known and trusted medical doctor. Sometimes circumstances will arise in which, because of an emergency, the limited capacity of the patient, or some other valid reason, the doctor cannot obtain the express consent of the patient to a surrogate surgeon. Other times, doctors who practice in a medical group may explain to a patient that any one of them may perform a medical procedure. In that situation, the patient may accept any or all the members of the group as his surgeon. In still other instances, the patient may consent to an operation performed by a resident under the supervision of the attending physician. The point is that a patient has the right to know who will operate and the consent form should reflect the patient's decision. Where a competent patient consents to surgery by a specific surgeon of his choice, the patient has every right to expect that surgeon, not another, to operate.

The failure of a surgeon to perform a medical procedure after soliciting a patient's consent, like the failure to operate on the appropriate part of a patient's body, is a deviation from standard medical care. It is malpractice whether the right surgeon operates on the wrong part or the wrong surgeon operates on the right part of the patient. In each instance, the surgeon has breached his duty to care for the patient. Where damages are the proximate result of a deviation from standard medical care, a patient has a cause of action for malpractice. Although an alternative cause of action could be framed as a breach of the contract between the surgeon and the patient, generally the more appropriate characterization of the cause will be for breach of the duty of care owed by the doctor to the patient. The absence of damages may render any action deficient, but the doctor who, without the consent of the patient, permits another surgeon to operate violates not only a fundamental tenet of the medical profession, but also a legal obligation….