VICTORIA SHAW v. SIMON B. SANTOS, M.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3959-04T53959-04T5

VICTORIA SHAW,

Plaintiff-Respondent/

Cross-Appellant,

v.

SIMON B. SANTOS, M.D.,

Defendant-Appellant/

Cross-Respondent,

and

MICHAEL LORETI, M.D.,

JUAN DE LA CRUZ, M.D.,

Defendants.

 

Submitted May 17, 2006 - Decided

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-3593-98.

Appellant/cross-respondent did not file a brief.

Judith E. Rodner, attorney for respondent/ cross-appellant.

PER CURIAM

Plaintiff Victoria Shaw underwent plastic surgery by defendant Simon B. Santos, M.D. and another physician in the Dominican Republic in May 1996. As a result of the surgery, she sustained physical and emotional injuries.

She sued Santos for negligence and for a violation of the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -116. Santos defaulted, and at a proof hearing the Law Division awarded plaintiff $450,431.60 in damages. The judge declined, however, to award treble damages, finding that the CFA did not apply to physicians acting in their professional capacities. Santos appealed from the final judgment, but his appeal has been dismissed. Plaintiff filed a cross-appeal from the trial court's determination that the CFA did not apply. We affirm.

Santos was a general surgeon who practiced medicine in New Jersey until 1994, when he sold his practice. In New Jersey, he had never performed plastic surgery; he took two courses in cosmetic surgery, the first in 1987, and the second in 1989, which lasted approximately two weeks.

He became involved in a private surgical clinic in Santo Domingo, known as Centro Medico Internacional Santiago (CEMIS). In connection with that organization, he advertised his services as a plastic surgeon. It was in that capacity that he met with plaintiff and several of her friends at her home in 1996. He described the CEMIS facility to them and the low cost of plastic surgery available in Santo Domingo and briefly examined each of the women. In response to questions about the methods to be used during surgery, Santos represented that all techniques would be to American and New Jersey standards and would be performed at a new, modern surgical clinic.

Based on Santos's representations, plaintiff went to Santo Domingo on May 24, 1996, where she was met by Santos and his wife; she gave Santos a check for $4500 for the surgery. The next day, Santos assisted another physician in performing surgery on plaintiff, which included an abdominoplasty (tummy tuck), as well as liposuction on plaintiff's chest, flanks, arms, and legs. The surgery failed; after plaintiff returned to the United States she was hospitalized on multiple occasions. She required surgery to alleviate her pain and correct "divots" and "dents" and other irregularities resulting from the first surgery.

The record shows that when Santos was promoting the surgery to plaintiff and her friends, he failed to disclose that he did not have medical malpractice insurance. And, though he represented that the surgery would be performed to American standards, it was not; nor was it performed at the CEMIS clinic, but rather at a substandard facility.

Against these facts, the trial judge awarded plaintiff compensatory damages grounded on plaintiff's negligence claim, but determined that the CFA did not apply to defendant's actions. Relying on the New Jersey Supreme Court's decision in Macedo v. Dello Russo, 178 N.J. 340 (2004), the judge said:

Shaw argues that Santos was acting in a purely commercial enterprise and not providing medical services. That is in part true, although Santos did assist in the botched cosmetic surgery. But the court feels constrained by Macedo, and if an exception is to be made to the Macedo rule, it should be carved out by the Appellate Division.

We too are constrained by Macedo to conclude that the CFA does not apply to the factual situation presented here. The Macedo court explained:

Thus, today, forty years after the CFA was enacted, our jurisprudence continues to identify learned professionals as beyond the reach of the Act so long as they are operating in their professional capacities. The Legislature is presumed to be aware of that judicial view.

. . . .

We therefore must assume that the Legislature approves of the consistent judicial interpretation of the CFA that has been extant for four decades. Under that interpretation, advertisements by learned professionals in respect of the rendering of professional services are insulated from the CFA but subject to comprehensive regulation by the relevant regulatory bodies and to any common-law remedies that otherwise may apply. We consider ourselves bound by that Legislative acquiescence. If we are incorrect in our assumption, we would expect the legislature to take action to amend the statute.

That said, because Dr. Dello Russo's advertising representations were made in his professional capacity regarding his professional services, the trial court correctly dismissed the CFA claim against him. That is not to suggest that Dr. Dello Russo would be insulated from the restraints of the CFA if he acted outside his professional capacity. Like the architect in Blatterfein[ v. Larken Assocs., 323 N.J. Super. 167 (App. Div. 1999)], if Dr. Dello Russo were to engage in the merchandising of a golf course, a vacation time-share or a medical office building, he would be subject, as all merchandisers are, to the CFA.

[Macedo, supra, 178 N.J. 345-46.]

In this case, while Santos was selling his CEMIS venture, that venture required his professional services as a physician. He was not, as is suggested by plaintiff, acting outside of his professional capacity. While he was not the plaintiff's primary surgeon, he participated in plaintiff's surgery.

We do not see this situation as falling under the exception set forth in Macedo, which would expose a professional to the CFA if he or she acted outside of his or her professional capacity. See id. at 346. The circumstances here are unlike those in Blatterfein, supra, 323 N.J. Super. at 183, where the defendant architect was found subject to the CFA because he held himself out as either a principal or professional in a real estate marketing venture; his challenged activities did not involve the promotion of his professional architectural services. In contrast, here, while Santos was involved in marketing, he was, in fact, marketing his professional services as a physician.

To summarize, the Legislature has not amended the CFA to include learned professionals so long as they are operating in their professional capacities. That is what happened here.

Affirmed.

 

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A-3959-04T5

MAY 31, 2006