DAVID MURPHY AND MARILYN MURPHY v. DANTE IMPLICITO, M.D., GEORGE JACOBS, M.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3172-03T33172-03T3

DAVID MURPHY AND MARILYN

MURPHY,

Plaintiffs-Appellants,

v.

DANTE IMPLICITO, M.D., GEORGE

JACOBS, M.D.,

Defendants-Respondents.

 

Argued September 14, 2005 - Decided

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-5998-00.

Michael J. Epstein argued the cause for appellants (Epstein Beirne, attorneys; Mr. Epstein, on the brief).

Matthew S. Schorr argued the cause for respondent, Dante Implicito, M.D., (McDonough, Korn & Eichhorn, attorneys; James R. Korn, of counsel; Mr. Korn and William S. Mezzomo, on the brief).

Thomas B. Leyhane argued the cause for respondent, George Jacobs, M.D. (Hoagland, Longo, Moran, Dunst & Doukas, attorneys; Mr. Leyhane and Mary Elizabeth Gazi, on the brief).

PER CURIAM

In this medical malpractice case, plaintiff David Murphy claims the defendant doctors, both spine surgeons, inserted cadaver bone into his spine contrary to his specific instructions. He filed suit alleging breach of contract, battery and lack of informed consent. Following the presentation of plaintiff's case to the jury from December 4, 2003 through December 15, 2003, the trial judge dismissed the complaint. We affirm the dismissal of plaintiff's informed consent claim, and reverse the dismissal of his claims for breach of contract and battery.

We take the facts from the trial testimony. In September 1996, plaintiff seriously injured his back while lifting a pallet at work. He was in "horrific" pain, unable to sleep, sit in a chair or lay down; he took eighty Percodans a week to lessen the pain. His treating doctor referred plaintiff to defendant Dr. Dante Implicito, an orthopedic surgeon.

On November 5, 1996, plaintiff first treated with Dr. Implicito, who administered conservative treatment but failed to relieve plaintiff's back pain. Plaintiff and Dr. Implicito discussed surgery on several occasions. Dr. Implicito told him he would remove broken bone fragments from plaintiff's spine and replace them with bone grafts. Plaintiff asserts he told Dr. Implicito that he did not want cadaver bone used in his back; if additional bone was needed, it should come from his hip (iliac crest). He explained to Dr. Implicito that he previously had a successful neck surgery with the use of his own bone. He was also concerned about AIDS and other diseases being transferred from a cadaver bone. Plaintiff testified that Dr. Implicito agreed that using plaintiff's own bone for the surgery "wasn't a problem." Dr. Implicito could not recall if plaintiff ever instructed him not to use cadaver bone.

Plaintiff's workers' compensation carrier referred him to defendant Dr. George Jacobs, a neurosurgeon, for a second opinion. Dr. Jacobs agreed that plaintiff needed surgery and he agreed to act as co-surgeon for the operation. Plaintiff testified that when he told Dr. Jacobs he did not want cadaver bone used, Dr. Jacobs replied that it "wouldn't be a problem;" he and Dr. Implicito would "take care of it." Dr. Jacobs denied that plaintiff ever told him he did not want cadaver bone used.

The surgery, a spinal fusion, took place on July 22, 1997. Prior to surgery, plaintiff signed a consent form, which read, in pertinent part: "I, Murphy David hereby authorize Dr.(s) Jacobs/ and his/her authorized residents and assistants to perform upon the above-named patient, the following operation and/or medical procedure(s): lumbar diskectomy and fusion with iliac crest bone graft + "steffe" plates." The italicized words were hand-written on the otherwise pre-printed form. While there was a line for a physician's signature at the bottom of the form, and a signature on the line, Drs. Implicito and Jacobs testified they did not sign it and they were unable to identify who did.

After plaintiff signed the consent form, the doctors performed the operation. Without plaintiff's knowledge or consent, they not only used pieces of his vertebrae and a bone substitute derived from coral, but also used commercially processed cadaver bone.

During plaintiff's first office visit following the surgery, Dr. Implicito told him everything had gone as planned; the doctors had enough bone at the operative site to perform the surgery without taking bone from his hip. Dr. Implicito did not mention using cadaver bone.

Despite the lack of complications during the operative procedure, plaintiff experienced a non-fusion the surgery failed. He continued to experience severe pain. As a result, in October 1998, plaintiff's workers' compensation case manager, Mary Puglis, scheduled a medical examination for plaintiff with Dr. Steven Reich, an orthopedist. Dr. Reich had x-rays taken of plaintiff's back, from which he observed that cadaver bone had been used to perform the surgery. According to plaintiff, Dr. Reich opined that "the fusion didn't take . . . because it was [performed] with cadaver bone." Upon learning that cadaver bone had been used, plaintiff was "shocked" and "angry" and actually "bent a metal chair in the doctor's office." He argued with Dr. Reich that it could not be cadaver bone because "if it was, [the operating surgeons] would have told [him]."

Puglis testified that during a November 1998 doctor's visit she attended with plaintiff, Dr. Reich confirmed cadaver bone was used and plaintiff's body was rejecting it. She was concerned for plaintiff's psychiatric health because he was "so mad, so angry." She believed the "insurance company should take over the psychiatric care that he had been getting on his own."

Dr. Reich subsequently became plaintiff's treating physician and after additional tests, he recommended a second surgery to remove all of the material from the first surgery and rebuild plaintiff's spine using bone from his hip. Dr. Reich agreed not to use cadaver bone.

One of plaintiff's experts at trial, Dr. Hervie Sicherman, an orthopedic surgeon, testified why some people do not want cadaver bone used: fear of disease, emotional feelings, and possible reactions to foreign proteins. As to a doctor's obligations when a patient requested that cadaver bone not be used, he said it is "standard in any surgery that if you're going to put a foreign material into the patient, whether it's metal or other pieces of . . . people's body, that consent be in a form to do that in addition to doing the procedure or the operation . . . ." He opined that if plaintiff "specifically advised" both defendants that he only wanted his own bone used during surgery, it would be a "deviation from the standards of care to . . . use other than the patient's own bone."

Dr. Reich performed the second surgery on March 1, 1999. He did not use cadaver bone. Nevertheless, the second surgery, as did the first, left plaintiff in severe pain and totally disabled.

From February through September 2000, plaintiff was treated by a psychiatrist, who diagnosed him with depressive disorder and pain disorder "associated with both psychological factors and a general medical condition." He opined that the cause of these problems "was the progressive and steady deterioration of [plaintiff's] physical condition."

At the time of trial, plaintiff was being treated by a pain management specialist, a psychiatrist and his primary care physician. He was taking eight prescriptions: Methadone for pain; Zanaflex for muscle spasms; Typtophan for seizures; Lexipro for mood swings; Xanax for nerves, depression and anxiety; Imitrex for headaches; and Klonopin and Altrace for blood pressure. He testified as to his physical condition:

Lower back, upper back is sore, buttocks, legs. Right leg is small and thin compared to the left. My knees are sore. I've got pain down my left leg and my right leg. One side is numbed out on the right. And one side is numbed out on the left on the - the pain. There's spasms given to me. I can't control them. . . . They . . . make me shake.

During his case, plaintiff presented no expert who criticized defendants' use of cadaver bone or any other aspect of the surgery. Dr. Reich did not testify. Dr. Sicherman admitted that the failure of the fusion was a recognized risk of the procedure; he did not render an opinion that the surgery failed from the use of the cadaver bone. He testified that the only deviation was the doctors' failure to perform the operation without cadaver bone as plaintiff had requested.

Against this factual background, the trial judge granted defendants' motions for involuntary dismissal of plaintiff's complaint after plaintiff presented his case to the jury. The standard for a trial judge to follow under those circumstances is well settled. A trial court, in addressing a motion for involuntary dismissal in either a jury or non-jury trial, is required to "accept as true all evidence which supports the position of the party opposing the motion and accord that party the benefit of all reasonable inferences." Rycoline Prods., Inc. v. Walsh, 334 N.J. Super. 62, 70 (App. Div.), certif. denied, 165 N.J. 678 (2000) (citing Dolson v. Anastasia, 55 N.J. 2, 5 (1969)). The "motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." R. 4:37-2(b). The essential issue in evaluating such a motion is whether the evidence "is so one-sided that one party must prevail as a matter of law." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995).

I. Breach of Contract

We first address plaintiff's breach of contract claim. The trial judge found that the use by the doctors of cadaver bone contrary to plaintiff's wishes was not a breach of a "fundamental element of the relationship" between plaintiff and the doctors. The court also held that even if plaintiff had a viable breach of contract claim, a jury could not find that damages flowed from that breach. We respectfully disagree on both points.

Generally, when a claim arises out of a doctor's failure to provide appropriate medical care, the cause of action is malpractice. In an appropriate case, however, where the doctor has made a special agreement to provide medical services, the action may be for breach of contract. Perna v. Pirozzi, 92 N.J. 446, 465 n. 4 (1983); cf. Starozytnyk v. Reich, 377 N.J. Super. 111, 128-29 (App. Div. 2005) (affirming dismissal of claim for breach of contract, or breach of fiduciary duty owed by a physician to a patient, because plaintiff failed to show proximate causation of injury); Darwin v. Gooberman, 339 N.J. Super. 467, 480 (App. Div.) (affidavit of merit not required for breach of contract claim against physician), certif. denied, 169 N.J. 609 (2001), rev'd by Couri v. Gardner, 173 N.J. 328, 340 (2002) (affidavit of merit may be required for breach of contract claim against physician if underlying factual allegations require proof of deviation from professional standard).

Here, plaintiff claims this is such an appropriate case. He does not allege the doctors failed to provide appropriate medical care. He asserts, instead, that they breached their agreement with him as to how they would perform one of the material elements of the operation.

To establish a breach of contract claim, a plaintiff has the burden to show that the parties entered into a valid contract, that the defendant failed to perform his obligations under the contract and that the plaintiff sustained damages as a result. Coyle v. Englander's, 199 N.J. Super. 212, 223 (App. Div. 1985). According to plaintiff's version of the facts, defendants agreed to perform a fusion on plaintiff's spine using bone from plaintiff's hip, and agreed not to use cadaver bone; and they would be paid for that operation. No dispute exists that defendants used cadaver bone, rather than bone from plaintiff's hip. And, while the trial court ruled that as a matter of law the use of cadaver bone was not a material breach of defendants' agreement to perform a spinal fusion, we find that giving plaintiff all appropriate inferences on a motion to dismiss, that question more appropriately belonged to the jury. If plaintiff is believed, defendants breached their agreement with him.

The next question, then, is whether plaintiff made a prima facie showing of damages to survive the Rule 4:37-2(b) motion. While the question of what damages, if any, plaintiff sustained as a result of defendants' alleged breach is somewhat more troublesome, that too is a jury question under the facts of this case.

Although no New Jersey case has discussed the measure of damages in a breach of contract claim against a physician under like circumstances, we see no reason to depart from the traditional model for breach of contract damages, which permits a plaintiff to recover "for such losses as may fairly be considered to have arisen naturally from the defendant's breach of contract." Model Jury Charge (Civil), 6.18, "Damages Breach of Contract," (1993). "Remedies upon breach of contract fall into three general categories: restitution, compensatory damages and performance." Donovan v. Bachstadt, 91 N.J. 434, 443-44 (1982). Compensatory damages are intended to compensate an injured party for losses caused by the breach. Id. at 444. They "are designed 'to put the injured party in as good a position as he would have had if performance had been rendered as promised.'" Ibid. (quoting 5 Corbin on Contracts 992, p. 5 (1951)).

Nevertheless, a defendant "is not chargeable for loss that he did not have reason to foresee as a probable result of the breach when the contract was made." Ibid. (citing Hadley v. Baxendale, 9 Ex. 341, 354, 156 Eng. Rep. 145, 151 (1854)). And, while the exact amount of the loss need not be certain, the loss must be a reasonably certain consequence of the breach. Kozlowski v. Kozlowski, 80 N.J. 378, 388 (1979).

Applying the law to the facts of this case, plaintiff is entitled to recover for all damages resulting from defendant's breach of contract, if any, that were foreseeable and within the contemplation of the parties; subject, however, to certain limitations. Plaintiff does not dispute that if defendants had refused to operate without using cadaver bone, he would have, nevertheless, had another doctor perform the surgery. Thus, because he would have had the operation anyway, he may only recover for damages in excess of those he would have suffered had the first operation been performed without a cadaver bone. Those damages may include any physical or psychological harm plaintiff can prove he incurred as a result of the use of cadaver bone, regardless of the success or failure of the operation itself. The exact amount of damages is for the jury to decide. On remand, therefore, the jury should be instructed accordingly.

Defendants claim that emotional distress damages are not permitted for a breach of contract claim. Though we agree that they are not routinely awarded in breach of contract actions, emotional distress damages are recoverable where "the breach of contract involves conduct that is both intentional and outrageous and proximately causes severe, foreseeable emotional distress." Picogna v. Bd. of Educ. of Cherry Hill, 143 N.J. 391, 397 (1996). The court first decides whether emotional distress damages can be found; if they can, the jury determines whether a plaintiff has proved such damages. Ibid.

Here, plaintiff presented sufficient evidence of emotional distress damages to survive the dismissal motion. The trial court found defendants' acts to be both intentional and outrageous. The trial judge stated, "clearly the jury could find that this override of a patient's specific instruction was intentional on the part of Dr. Implicito and intentional on the part of Dr. Jacobs." The judge continued, "it's outrageous if somebody tells you I don't want a dead person's cadaver bone substance in my body, and you say don't worry, and then you put it in there anyway and then you [don't] tell him about it, and he has to find out from somebody else . . . ."

Despite these findings, the trial judge found that defendants' actions did not result in any emotional distress to plaintiff. The judge grounded his decision on plaintiff's psychiatrist's testimony, which did not specifically relate plaintiff's emotional distress to the use of the cadaver bone, but rather to plaintiff's overall physical condition. The judge failed, however, to consider the testimony of plaintiff and his wife about plaintiff's mood swings resulting from defendants' use of cadaver bone.

Specifically, when plaintiff discovered that cadaver bone had been used, he felt betrayed, like defendants had "stuck a knife in [his] back." He felt "furious, mad, upset," and believed that "the fusion didn't take [] because it was [done] with cadaver bone." Taken with the judge's findings as to defendants' conduct, when viewed in a light most favorable to plaintiff, this testimony was sufficient to establish a prima facie case of emotional distress damages. See Picogna, supra, 143 N.J. at 396-97. It was up to the jury, not the judge, to decide whether the damages had been proved. Id. at 397.

II. Battery

A battery is "any non-consensual touching." Perna, supra, 92 N.J. at 461 (citing Prosser, Law of Torts, 9). It is an intentional tort "reserved for those instances where either the patient consents to one type of operation but the physician performs a substantially different one from that for which authorization was obtained, or where no consent is obtained." Howard v. Univ. of Med. and Dentistry of N.J., 172 N.J. 537, 550 (2002); see also Whitley-Woodford, supra, 253 N.J. Super. at 11 (battery may occur when doctor fails to obtain patient's consent to perform particular operative procedure); Samoilov v. Raz, 222 N.J. Super. 108, 119 (App. Div. 1987) (battery occurs when patient consents to the performance of one type of operation, and doctor performs a substantially different one "for which authorization was not obtained"). To establish a battery claim, a patient need not show "that the physician deviated from either the applicable standard for disclosure or the standard for performance of the operation." Howard, supra, 172 N.J. at 550.

In instances where the "consent granted was vitiated, [it renders] the circumstances the equivalent of an unauthorized touching." Howard, supra, 172 N.J. at 550. Thus, a battery may occur not only when no consent is obtained from the patient prior to the medical procedure, but also when the scope of consent is exceeded by a physician. "Conditional consent or consent restricted as to time, area or in other respects is effective only within the limits of the condition or restriction." Restatement (Second) of Torts 892A (1979). "If the actor exceeds the consent, it is not effective for the excess." Ibid. "Consent may also be made subject to a condition subsequent, in which case the consent terminates when the condition is not met." Id. at comment f.

Here, the trial judge found that the use of cadaver bone did not constitute a substantially different surgery from the surgery plaintiff authorized, and, accordingly, use of cadaver bone contrary to plaintiff's instructions did not constitute a battery. We reach a different conclusion.

While no New Jersey case has directly addressed this issue, authorities from other states are instructive. In Duncan v. Scottsdale Med. Imaging Ltd., 70 P.3d 435, 441, 443 (Ariz. 2003), the patient told the nurse "on three separate occasions she would accept only morphine or demerol" prior to an MRI procedure, and the nurse agreed to the patient's request, but then "gave her fentanyl regardless." The court found that the nurse had committed a battery. Id. at 443. Similarly, the breach of conditional consent was considered to be a battery in Ashcraft v. King, 278 Cal. Rptr. 900 (Ct. App. 1991). There, the patient consented to surgery on the condition that only family-donated blood was to be used. Id. at 903. Instead, the plaintiff received a transfusion from the general hospital supply. Ibid. The blood was contaminated with the human immunodeficiency virus, HIV, the cause of AIDS. Ibid. The court found that the plaintiff had a viable cause of action for battery. Id. at 903.

While here, the patient's damages may differ, the underlying cause of action remains essentially the same as that in Scottsdale and Ashcraft. Plaintiff asserts that defendants' failure to use his own bone rather than cadaver bone abrogated his consent to the surgery. He testified he told the doctors, and they agreed, that placement of cadaver bone in his spine was unacceptable. The written consent form supports his testimony. Plaintiff only agreed to the surgery subject to the condition that cadaver bone not be placed in his spine. In other words, his consent to the surgery was conditional. Defendants, by inserting cadaver bone, exceeded that condition. At the very least, therefore, it is a jury question as to whether the doctors performed the same operation to which the patient consented. If they did not, their actions constitute a battery. See Cobbs v. Grant, 502 P.2d 1, 7 (Cal. 1972) (when either patient has not consented or has consented to one operation and doctor performs another, that action represents intent to deviate from the consent, a battery); Restatement (Second) of Torts 892A, supra ("to be effective, consent must be . . . to the particular conduct, or to substantially the same conduct").

Defendants contend this case is similar to that of Colucci v. Oppenheim, 326 N.J. Super. 166, (App. Div.), certif. denied, 163 N.J. 395 (1999), where we upheld the trial court's refusal to charge battery to the jury. Defendants' reliance on Colucci is, however, misplaced. In Colucci, the plaintiff had consented to knee surgery, but argued he was not "adequately informed regarding the particular procedure used." Id. at 181. We found that the plaintiff failed to demonstrate any facts which would entitle him to a battery cause of action. Ibid. At issue was not whether consent was given for the procedure, or whether the doctor acted in a manner to contravene the consent given, as occurred here, but whether the doctor failed to inform the patient of the possible risks of the procedure. In Colucci, the plaintiff was not aware of the different procedures available, and as such, the issue was informed consent, not battery. Ibid.; see also Samoilov, supra, 222 N.J. Super. at 119 (patient signed general consent for operation and occurrence of undisclosed complication did not equate to battery); Gerety v. Demers, 589 P.2d 180, 190-91 (N.M. 1978) (when doctor performs procedure consented to, but undisclosed complication occurs, that is failure of informed consent, an act of negligence, not a battery); Cobbs, supra, 502 P.2d at 19 (undisclosed complication constitutes negligence, lack of informed consent).

Defendants also rely on Howard, supra, 172 N.J. 537, to support their position that the use of cadaver bone was not a battery. In Howard, the plaintiff brought suit against his doctors arising out of unsuccessful back surgery that rendered him a quadriplegic. Id. at 544. During pretrial depositions, the plaintiff learned his doctor did not have the credentials and experience he allegedly represented he did during a consultation. Ibid. Plaintiff then sought to amend his complaint to add a count for fraud and deceit. Ibid. The trial court denied the motion and we reversed, likening the claim to a battery. Howard v. Univ. of Med. and Dentistry of N.J., 338 N.J. Super. 33, 39 (App. Div. 2001). The New Jersey Supreme Court disagreed; it found that the plaintiff did not have a fraud or battery claim, but rather a claim based on lack of informed consent. Howard, supra, 172 N.J. at 554-55. The Court explained:

although a claim for battery will lie where there has been "ghost surgery" or where no consent has been given for the procedure undertaken, if consent has been given for the procedure only a claim based on lack of informed consent will lie. A claim based on lack of informed consent properly will focus then on the adequacy of the disclosure, its impact on the reasonable patient's assessment of the risks, alternatives, and consequences of the surgery, and the damages caused by the occurrence of the undisclosed risk.

Id. at 552 (emphasis added).

Here, defendants claim that because plaintiff is not seeking to recover for "ghost surgery," and plaintiff did, in fact, give his consent for a spinal fusion, the procedure undertaken, no action for battery may lie. Defendant's argument, however, assumes the procedure plaintiff authorized was simply the spinal fusion. Plaintiff, on the other hand, argues that he authorized not just a spinal fusion, but a spinal fusion without the use of cadaver bone. In other words, the nature of the procedure performed is at issue, and that is what distinguishes this case from Howard.

In Howard, the misrepresentation of the doctor's credentials went to the risks to which the plaintiff was exposed during the medical procedure. Id. at 556. That made it an informed consent case. Here, the question is not what information was given to plaintiff to allow him to assess the risks and alternatives of the surgery; rather, the question raised is: to what procedure did plaintiff consent? While misrepresentations about his physician's experience may have been material in determining whether the plaintiff in Howard was advised of all of the material risks of his surgery, the use of cadaver bone during plaintiff's spinal fusion calls into question the very procedure authorized. Said another way, in Howard, no dispute existed that the plaintiff consented to the procedure the doctor performed. Here, the question is whether the doctors' breach of the condition not to use cadaver bone was a failure by the doctors to perform the operative procedure plaintiff authorized. For these reasons, we find defendants' reliance upon Howard to be misplaced.

Accordingly, plaintiff has demonstrated a prima facie cause of action for battery and may be entitled to such damages as may flow from the battery. "[P]roof of an unauthorized invasion of the plaintiff's person, even if harmless, entitles him to nominal damages." Perna, supra, 92 N.J. at 460; see also Whitley-Woodford v. Jones, 253 N.J. Super. 7, 11 (App. Div. 1992) (operation undertaken without consent, "even if perfectly performed with good medical results, may entitle a plaintiff to at least nominal and even punitive damages"). A jury may also "award damages for mental anguish resulting from the belated knowledge that the operation was performed [without consent]." Perna, supra, 92 N.J. at 461. Moreover, "because battery connotes an intentional invasion of another's rights, punitive damages may be assessed in an appropriate case." Ibid. Nevertheless, plaintiff may not duplicate his damages, if any, that a jury may award for breach of contract.

III. Informed Consent

The remaining cause of action dismissed by the trial judge was lack of informed consent. "[I]nformed 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 risk attendant upon each" before subjecting that patient to a course of treatment.'" Howard, supra, 172 N.J. at 548 (quoting Perna, supra, 92 N.J. at 459) (quoting Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir.), cert. denied, 409 U.S. 1064, 93 S. Ct. 560, 34 L. Ed. 2d 518 (1972)). To establish a viable informed consent claim, the patient must initially show that the physician "withheld pertinent medical information concerning the risks of the procedure or treatment, the alternatives, or the potential results if the procedure or treatment were not undertaken." Ibid. The disclosure must include "what a reasonably prudent patient would deem significant in determining whether to proceed with the proposed procedure." Ibid. Next, the plaintiff must prove that with full disclosure, a "reasonably prudent patient in plaintiff's position would have declined to undergo the treatment." Ibid. "If the patient succeeds in proving that the surgeon did not comply with the applicable standard for disclosure, the consent is vitiated." Perna, supra, 92 N.J. at 460 (footnote omitted).

We agree with the Law Division that plaintiff has failed to establish an informed consent claim. This is not a case in which the physicians failed to inform him of the risks of surgery. Nor was plaintiff harmed by any undisclosed risk. He was, in fact, informed of the risks of surgery, and while those risks came to fruition, and the first surgery failed, they were known risks. This was not an instance where plaintiff was not given all of the information to which he was entitled. As we have explained, plaintiff may have a cause of action for breach of contract and battery, but the facts do not support a claim for medical negligence, which is the gravamen of an informed consent cause of action. See Whitley-Woodford, supra, 253 N.J. Super. at 10 (informed consent is negligence concept based upon doctor's duty to provide patient with sufficient information to make informed decision about whether to undergo specific medical procedure).

Finally, because a new trial as to plaintiff's breach of contract and battery claims is warranted, we will address one additional issue. That is, whether plaintiff's question to Dr. Jacobs on cross-examination concerning his treatment of another patient was grounds for a mistrial. The challenged cross-examination went as follows:

Q. Doctor, you would agree with me, would you not, that you made mistakes in your practice in the past, correct?

A. Everybody makes mistakes.

. . . .

Q. And it would include that you would have made errors in the actual performance of surgery, correct?

A. I'm sure that's true, too.

Q. Well, Doctor, isn't it a fact that you once performed a surgery on the wrong side of a woman's skull?

Defense counsel asked for a mistrial. The following day, when the trial judge dismissed plaintiff's complaint for failure to establish a prima facie case, he commented that "had [he] not dismissed this case at the end of the plaintiff's case [he] would have declared a mistrial." He found the question to be "clearly improper" and "highly inflammatory." He concluded that no jury instruction could cure the damage. We agree. The challenged evidence was of Dr. Jacobs's alleged prior bad conduct, a violation of N.J.R.E. 404(b). Its probative value, if any, was substantially outweighed by its potential prejudice. See N.J.R.E. 403; State v. Reddish, 181 N.J. 553, 608 (2004) (evidence of other crimes or wrongs is "handled with particular caution"). It would not have been an abuse of the trial court's discretion to order a mistrial. Consequently, on retrial, plaintiff is precluded from asking that question.

We affirm the dismissal of plaintiff's informed consent claim; we reverse the dismissal of plaintiff's breach of contract and battery claims, as well as the dismissal of plaintiff's wife's per quod claim. We remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

Plaintiff Marilyn Murphy has a per quod claim that was also dismissed by the trial judge. Unless otherwise stated, all references in this opinion to plaintiff are to David Murphy.

The Arizona Supreme Court couched its decision both in terms of the Restatement and in reference to an action for misrepresentation. While here, plaintiff argues defendants obtained his consent through misrepresentation, New Jersey has declined to extend medical based battery to "allow a novel fraud or deceit-based cause of action" arising "exclusively from the doctor-patient relationship" involving the procedure. Howard, supra, 172 N.J. at 554.

While the Rule 4:37-2(b) motion was decided solely on the evidence presented during plaintiff's case, Dr. Jacobs's testimony was taken before the trial judge decided the motion for the convenience of the parties.

(continued)

(continued)

25

A-3172-03T3

September 22, 2005