Perna v. PirozziPerna v. Pirozzi
The opinion of the Court was delivered by
This appeal challenges the validity of
The medical malpractice panel unanimously found no basis for plaintiffs’ claims of malpractice, but made no determination on the informed consent issue, which it found to be purely factual and, thus, not subject to panel disposition. See
At trial, the panel determination was admitted in evidence. The trial court, however, refused to permit plaintiffs to show that the panel-doctor, in answer to a questionnaire submitted to prospective panelists, had stated that he was acquainted professionally with defendant Dr. Pirozzi. Also, the court refused to permit cross-examination of Dr. Pirozzi about prior inconsistent statements he allegedly made before the panel. The jury returned a verdict of no cause of action in favor of defendants.
In affirming the judgment of the trial court, the Appellate Division sustained the constitutionality of
We agree that
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.
1
In this context, the term “assistants” refers to medi
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.
Pursuant to
In its original charge on informed consent, the trial court instructed the jury:
Should you determine with regard to the first operation of May 18, 1977, the plaintiff’s consent to the operation was based on the fact that Dr. Pirozzi was to perform the operation and that that was his understanding with the doctor and further determine that such failure of informed consent constituted a deviation from accepted medical standards and that if there was such deviation constituting medical malpractice, it was the proximate cause as I will define that term for you of the plaintiff’s damages, then you must find for the plaintiff on this issue. However, should you determine that with regard to the first operation of May 18, 1977, there was no understanding that Dr. Pirozzi would perform the operation or that any two members of the group would perform it or that such failure of informed consent was not such deviation from accepted medical standards as to constitute medical malpractice or should you find that such medical malpractice was not a proximate cause as I will define that term for you of the plaintiff’s damages, then you must find for the defendants on this issue.
The court then gave a standard charge on proximate cause. Neither party objected to the submission of the issue of unauthorized surgery in this form. Subsequent to the initial charge, the jury requested further instructions on the issue of informed consent: “In your charge to the jury with reference to informed consent, is there a basis for malpractice if consent was given to one physician and another operated but no deviation from standard surgical procedures were involved?”
The trial court advised counsel in advance of a proposed supplemental charge, which undertook to explain that, in addition to proving medical malpractice, plaintiffs were required to establish that the malpractice was a proximate cause of their damages. For various other reasons not relevant to this appeal,
II
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.”
The panel hearing is informal and without a verbatim record, and the proceeding is confidential and in camera.
A unanimous recommendation, however, poses a serious obstacle to adverse parties.
Corbo v. Crutchlow,
86
N.J.
68, 77 (1981). Although not binding, the panel’s findings may predetermine the outcome of a trial.
Id.
at 75;
see
Redish, “Legislative Response to the Medical Malpractice Insurance Crisis: Constitutional Implications,” 55
Tex.L.Rev.
769, 792 (1977); Note, “Medical Malpractice Panels: A Constitutional Analysis,” 46
Fordham L.Rev.
322, 331-32 (1977). We have recognized the importance of the recommendation by declaring that the physician panelist may be called as a witness at trial under
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.”
At the outset, we note that
In view of the great weight apparently attached to the panel findings, either party must be permitted to show possible bias of a panel member. Accordingly, the questionnaires completed by physician panel members are admissible when relevant to the impartiality of the panel member and, thus, to the panel determination. From that perspective, our normal deference to the exercise of a trial court’s discretion under Evid.R. 4 must yield to the right of a jury deciding a medical malpractice action to know of possible bias of a panel member in favor of one of the parties.
In addition, on remand the trial court should permit plaintiffs’ counsel to attack the credibility of the defendant-doctor on the basis of prior inconsistent statements before the panel. A paramount purpose of cross-examination is the impeachment of the credibility of the witness.
McCormick, Evidence
(2d ed. 1972) § 22. Generally, any prior inconsistent statement, including an oral statement, may be used for impeachment.
McCormick, supra,
§ 34 at 67 & n. 7;
see also N.J.Evid.R.
22(b). Because no transcript is made of a panel hearing, no written record exists of a prior inconsistent statement. Cross-examination based on unrecorded testimony before a panel could deteriorate into an inconclusive shouting match. That risk can be reduced, if not eliminated, by the exercise of firm control by the trial court in balancing the need for effective cross-examination with the risk of unduly repetitive questioning. The confidentiality of a panel hearing, see
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
Ill
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. See supra p. 456. 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.
Further, we find to be without merit the contention that
As noted previously,
From the date of its adoption in 1978,
Even before the committee filed its report, Chief Justice Wilentz signed an order on December 7, 1982 that permits the suspension of
IV
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.
Canterbury
v.
Spence,
464
F.
2d 772, 780 (D.C.Cir.),
cert. den.,
409
U.S.
1064, 93
S.Ct.
560, 34
L.Ed.2d
518 (1972);
see Calabrese v. Trenton State College,
162
N.J.Super.
145, 156 (App.Div.1978),
aff’d,
82
N.J.
321 (1980) (summary judgment for defendant-doctors reversed because of
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. Prosser,
Law of Torts
§ 9 at 35 (4th ed. 1971);'
see Dow v. Kaiser Foundation,
12
Cal.App.3d
488, 90
Cal.Rptr.
747, 758 (App.1970). The plaintiff
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. See Right to Choose v. Byrne, 91 N.J. 287, 306 (1982); Schloendorff v. New York Hosp., 211 N.Y. 125, 105 N.E. 92, 93 (1914).
Any non-eonsensual touching is a battery.
See
Prosser,
Law of Torts
§ 9. 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
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.”
3
A patient has the right
New 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
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. 4 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.
The judgment below is reversed and the matter remanded for trial consistent with our opinion. On remand, the court shall conduct a new pretrial conference at which all parties should
For reversal and remandment — Chief Justice WILENTZ and Justices CLIFFORD, SCHREIBER, HANDLER, POLLOCK and O’HERN — 6.
For affirmance — None.
Notes
The consent form provided in relevant part:
I. I, Thomas Perna, authorize Dr. Pirozzi and his assistants to treat the condition or conditions which are indicated by the examinations and studies already performed.
... 2. The procedure[s] necessary to treat my condition, as explained to me by Dr.. — . are: remove stone from rt. kidney through dank incision. (Underscored portions indicate blanks on standard consent form).
Jurisdictions differ as to the standard to be applied when judging the adequacy of disclosure for informed consent purposes. Some courts have ruled that the standard is that of the “reasonably prudent medical practitioner acting under the same or similar circumstances,” see,
e.g., Natanson v. Kline, supra;
others a standard based on community custom,
see, e.g., Tangora v. Matanky,
The Judicial Council of the American Medical Association has declared: To have another physician operate on one’s patient without the patient’s knowledge and consent is a deceit. The patient is entitled to choose his own physician and he should be permitted to acquiesce in or refuse to accept the substitution. The surgeon’s obligation to the patient requires him to perform the surgical operation: (1) within the scope of authority granted by the consent to the operation; (2) in accordance with the terms of the contractual relationship; (3) with complete disclosure of all facts relevant to the need and the performance of the operation; and (4) to utilize his best skill in performing the operation. It should be noted that it is the operating surgeon to whom the patient grants consent to perform the operation. The patient is entitled to the services of the particular surgeon with whom he or she contracts. The surgeon, in . accepting the patient is obligated to utilize his personal talents in the performance of the operation to the extent required by the agreement
Under the normal and customary arrangement with private patients, and with reference to the usual form of consent to operation, the surgeon is obligated to perform the operation, and may use the services of assisting residents or other assisting surgeons to the extent that the operation reasonably requires the employment of such assistance. If a resident or other physician is to perform the operation under the guidance of the surgeon, it is necessary to make a full disclosure of this fact to the patient, and this should be evidenced by an appropriate statement contained in the consent.
If the surgeon employed merely assists the resident or other physician in performing the operation, it is the resident or other physician who becomes the operating surgeon. If the patient is not informed as to the identity of the operating surgeon, the situation is “ghost surgery.”
Judicial Council of the American Medical Ass’n, Op. 8.12 (1982); see also “Questions and Answers," 209 J.A.M.A. 947 (1969) (describing the performance of surgery by a resident operating under the supervision of a surgeon, but without the consent of the patient, as a fraud and deceit); American College of Surgeons, “Statements on Principles,” § I.A. (June 1981) (it is unethical to mislead a patient as to the identity of the doctor who performs the operation).
Where the essence of a cause of action is an allegation of the failure to provide medical care or to provide that care properly, a plaintiff should couch the cause as malpractice.
Liebler v. Our Lady of Victory Hosp.,