JENNY WANG v. JOHN SHI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2249-06T22249-06T2

JENNY WANG,

Plaintiff-Appellant,

v.

JOHN SHI,

Defendant-Respondent.

_________________________________________

 

Argued November 8, 2007 - Decided

Before Judges Wefing and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2165-03.

Lewis Stein argued the cause for appellant (Nusbaum, Stein, Goldstein, Bronstein & Kron, P.A., attorneys; Mr. Stein, on the brief).

Peter C. Gordon argued the cause for respondent (Krompier & Gordon, L.L.C., attorneys; Judith A. Deer, of counsel; Richard J. Tamn, on the brief;).

PER CURIAM

Plaintiff Jenny Wang appeals from an order entered on November 9, 2006, dismissing with prejudice plaintiff's complaint against defendant John Shi. The following factual and procedural history is relevant to our consideration of the issue advanced on appeal.

On August 7, 2002, Jie Bin, mother of the then-infant plaintiff, Jenny Wang, took her daughter to Doctor Shi for a dental examination. This was plaintiff's first visit to Dr. Shi. Her last dental visit before seeing Dr. Shi was with Dr. Wu in March 2001. She saw Dr. Shi because her parents had changed dental insurance plans. According to plaintiff's proffer, after Dr. Shi finished the examination of plaintiff, he discussed his findings with her mother. Dr. Shi told Jie Bin that he had found ten cavities and that dental restoration was recommended. According to Jie Bin, she was skeptical because up to that point in time plaintiff had no evidence of any cavities.

Plaintiff returned to Dr. Shi the next day for a dental cleaning and on September 3, returned to have restorations done on three teeth. Plaintiff and her mother were dissatisfied with the information they received and the type of fillings used by Dr. Shi. Accordingly, they returned to Dr. Wu on September 24, 2002. On March 18, 2002, Dr. Wu conducted a complete examination of plaintiff's teeth and found no cavities. In December 2002, plaintiff's counsel sent plaintiff for a dental examination by another dentist, Dr. Allan Monack, who, after conducting an examination, opined that there were no cavities. Furthermore, Dr. Monack opined that, in the absence of cavities on the seven teeth which Dr. Shi had identified as having cavities, he would conclude by inference that there were no cavities on the three teeth which Dr. Shi said had cavities. Defendant proffers that he did not misrepresent plaintiff's condition and that the cavities existed and required treatment.

On August 12, 2003, plaintiff filed suit against Dr. Ecker and Dr. Shi. Dr. Ecker was named defendant on theories of vicarious liability but was voluntarily dismissed from the case on September 7, 2005. The complaint against Dr. Shi contained two counts. In the first count, plaintiff alleged that Dr. Shi committed dental malpractice by deviating from accepted standards of dental care. In the second count of the complaint, plaintiff alleged that Dr. Shi intentionally and with intent to deceive plaintiff misrepresented the true condition of plaintiff's teeth so as to induce plaintiff to rely on his dental evaluation and thereby undertake treatment that was in fact not needed.

On the morning of trial, September 12, 2006, plaintiff advised the court that she would be withdrawing her dental malpractice claim and instead proceeding solely on the intentional misrepresentation claim. Defendant then responded with an in limine motion for a dismissal for failure to state a cause of action. Defendant argued that a cause of action for fraud did not exist in law with respect to the delivery of medical or dental services based upon the Supreme Court's decision in Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537 (2002).

The trial court heard oral argument and reviewed pertinent case law. The trial judge found that there was no case brought to his attention where a fraud case standing alone can be asserted against a doctor or a dentist. He did not find Howard to be distinguishable and, based on the language in Howard, granted the motion to dismiss with prejudice. Plaintiff filed a motion for leave to supplement the record, which the court granted as to both plaintiff and defendant. A timely notice of appeal was subsequently filed.

On appeal, plaintiff alleges that she was prepared to prove misrepresentation by defendant with respect to the condition of plaintiff's teeth and that this misrepresentation induced her to undertake restorative procedures. Plaintiff argues that a cause of action for fraud lies as an exception to Howard and that, therefore, the dismissal of the complaint by the trial court was error. We disagree.

Plaintiff argues that defendant's misrepresentation of the condition of plaintiff's teeth "induced" her to proceed with "unnecessary surgery." Plaintiff claims that the trial court's reliance on Howard was misplaced. Plaintiff argues, citing to Tonelli v. Khanna, 238 N.J. Super. 121 (App. Div.), certif. denied, 121 N.J. 657 (1990), that Howard recognizes an exception where a plaintiff was induced by misrepresentation to proceed with unnecessary surgery.

Defendant argues that Howard holds that concealment or failure to disclose a physician's own malpractice does not give rise to a claim of fraud or deceit, independent of medical malpractice. Defendant argues that plaintiff's reliance on Tonelli is misplaced because the plaintiff in Tonelli pursued a medical malpractice claim as well as her misrepresentation claim.

We disagree with plaintiff's argument that Howard recognized an exception for a claim for medical misrepresentation or fraud which may proceed standing alone. Recently, the New Jersey Supreme Court has further explained its holding in Howard. In Liguori v. Elmann, 191 N.J. 527, 548 (2007), the Court said

In Howard, supra, we recognized that a patient generally has three avenues for relief against a physician, namely, "(1) deviation from the standard of care . . .; (2) lack of informed consent; and (3) battery." 172 N.J. at 545. We there declined to create a "novel fraud or deceit-based cause of action" arising from a doctor's pre-treatment misrepresentation about his professional qualifications. See Id. at 553. We did not address the potential for a post-surgical fraud claim. As a part of our analysis, however, we cited a New York decision addressing the circumstances in which a fraud claim might arise. See Id. at 553-54 (citing Spinosa v. Weinsein, 571 N.Y.S.2d 747 (App. Div. 1991)). In Spinosa, supra, the New York court reasoned that a fraud claim can only arise "'when the alleged fraud occurs separately from and subsequent to the malpractice . . . and then only where the fraud claim gives rise to damages separate and distinct from those flowing from the malpractice.'" 571 N.Y.S.2d at 753 (quoting Coopersmith v. Gold, 568 N.Y.S.2d 250, 252 (App. Div. 1991)). Our reference to that decision in Howard, supra, 172 N.J. at 553-54 illustrated the reasoning of a sister state which had also rejected the creation of a new fraud based claim in a medical malpractice case.

We see nothing in this record that suggests that we should now deviate from our careful analysis . . . .

Liguori makes it clear that the Supreme Court has declined to create a fraud- or deceit-based cause of action arising from a doctor's pre-treatment misrepresentation about his qualifications. The logic of the Court's holding in Liguori equally applies to this case. In Howard, the Court made it clear that a fraud- or deceit-based cause of action in a doctor-patient context "that regularly would admit of the possibility of punitive damages, and that would circumvent the requirements for proof of both causation and damages imposed in a traditional informed consent setting" would not be recognized. The Court relied heavily on the New York case of Spinosa, supra, 571 N.Y.S.2d 747, which held that concealment or failure to disclose a doctor's own malpractice does not give rise to a claim of fraud or deceit independent of medical malpractice.

Plaintiff argues that exactly that type of claim should be recognized. Plaintiff alleges that the misrepresentation by Dr. Shi was intended to "induce" plaintiff to undergo unnecessary dental treatment. The heart of plaintiff's allegation is that Dr. Shi committed malpractice by intentionally misdiagnosing plaintiff. Such a claim would require expert testimony as to a deviation from the standard of care, as well as causation. The Howard Court's holding was premised in significant part on the need to prevent a plaintiff from circumventing the requirements of proof of deviation, causation, and damages imposed in a traditional informed consent setting. Plaintiff, however, chose not to proceed in a traditional informed consent setting.

Plaintiff argues that Tonelli, supra, 238 N.J. Super. 121, provides an independent basis for proceeding. However, Tonelli is readily distinguishable. First of all, in Tonelli, the case was brought on a medical malpractice theory, as well as battery, informed consent, and misrepresentation. Plaintiff relies on the statement from Tonelli that "[i]f consent was obtained by the use of fraud or misrepresentation, an action for battery may be appropriate." Tonelli, supra, 238 N.J. Super. at 128. However, no battery was alleged by plaintiff. Moreover, we find Tonelli's holding was later significantly limited by the Howard Court which stated

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 the consequences of the surgery, and the damages caused by the occurrence of the undisclosed risk.

[Howard, supra, 172 N.J. at 552.]

We are satisfied, therefore, that the holding and reasoning in Howard, as recently elaborated on by the Supreme Court in Liguori, dictates that claims such as plaintiff's may be advanced on either a dental malpractice theory or lack of informed consent theory but not on fraud or misrepresentation standing alone. The Supreme Court in Liguori reinforced the Court's reliance on Spinosa that a fraud claim can only arise "when the alleged fraud occurs separately from and subsequent to the malpractice . . . and then only where the fraud claim gives rise to damages separate and distinct from those flowing from malpractice." Liguori, supra, 191 N.J. at 548. That is not the situation in this case. Therefore, we find no error in the trial court's dismissal of the fraud claim.

Affirmed.

This action was originally brought by Mike Wang and Jie Bin individually, and as Jenny Wang's guardians ad litem because at the time the complaint was filed, Jenny Wang was a minor. At the time of trial, she had reached the age of majority and the trial court amended the complaint accordingly. Any individual claims of Mike Wang and Jie Bin were withdrawn.

The initial complaint also named as a defendant, Lee A. Ecker, on theories of vicarious liability. He was voluntarily dismissed from the case on September 7, 2005.

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9

A-2249-06T2

November 29, 2007