I.  PROFESSIONAL LIABILITY

Plaintiff Cannot Sustain Fraud Claim Against Neurosurgeon Who Misrepresented His Experience And Credentials.

The Supreme Court of New Jersey has recently held that a patient may not bring a fraud or deceit-based claim concerning a physician's alleged misrepresentation of his experience and credentials. In Howard v. University of Medicine and Dentistry of New Jersey, 2002 WL 1333646 (June 18, 2002), the plaintiff had a history of cervical spine disease, and following a 1991 car accident, he was diagnosed with spondyliosis, with spinal cord compression. In 1997, the plaintiff was involved in another automobile accident and further injured his back. The plaintiff sought treatment from a professor of neurosurgery and the director of the University of Medicine and Dentistry of New Jersey's Spine Center.

The physician had two pre-operative consultations with the plaintiff. During the first consultation, the physician told the plaintiff that he needed surgery to correct a cervical myelopathy caused by cervical stenosis and a disc herniation. Due to the serious nature of the surgery, the physician recommended that the plaintiff's wife attend a second consultation in order to explain again the risks, benefits and alternatives to surgery. Plaintiff's wife then returned for the second consultation and asked the physician whether he was Board Certified. Plaintiff claimed that the physician told him that he was Board Certified in neurosurgery and that he had performed approximately 60 surgeries similar to the surgery the plaintiff was considering. According to the plaintiff's wife, she was initially opposed to the surgery, and it was only after the physician's specific claims of skill and experience, that she and her husband said to go forward with the procedure. The surgical procedure was performed on the plaintiff, but it was unsuccessful. Plaintiff filed a malpractice action against the physician alleging that he was rendered a quadriplegic as a result of the physician's negligence.

During pre-trial discovery, the plaintiffs claimed that they learned from the physician's deposition that he had misrepresented his credentials and experience during the pre-surgery consultation. During his deposition, the physician stated that he was not Board Certified at the time of the surgery, and that he had performed approximately "a couple dozen" of the type of surgeries undergone by the plaintiff. Plaintiffs then sought permission from the court to amend their original complaint to add a fraud count against the physician pertaining to his misrepresentation of his experience and credentials. Plaintiffs' original complaint alleged a standard medical malpractice claim of deviation from the standard of care. Plaintiffs' motion to amend the complaint to add a fraud claim "raises the question whether a patient's consent to surgery obtained through alleged misrepresentations about the physician's professional experience and credentials is properly addressed in a claim of lack of informed consent, or battery, or whether it should constitute a separate and distinct claim based on fraud."

Currently, a patient filing a medical malpractice action in New Jersey has several avenues of relief against a doctor: (1) deviation from the standard of care (medical malpractice); (2) lack of informed consent; and (3) battery. The New Jersey Supreme Court stated "we are not convinced that our common law should be extended to allow a novel fraud or deceit-based cause of action in this doctor-patient context that 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." The court stated that all aspects of the plaintiffs' complaint against the physician arose out of the plaintiffs' consent to a medical procedure and defendant's performance of that procedure. The court stated that permitting "a cause of action based on lack of informed consent, in addition to the malpractice action, is all that is required and appropriate to address plaintiffs' allegations. 

Pennsylvania Court Holds Doctrine Of Ostensible Agency Applicable To Doctors .

In Parker v. Freilich , 2002 WL 1308708 (June 17, 2002), the Superior Court of Pennsylvania applied the doctrine of ostensible agency to hold a physician liable for actions taken by a registered nurse anesthetist who assisted during surgery. The plaintiff in this case underwent a medical procedure performed by Dr. Freilich. Dr. Freilich engaged the services of a registered nurse anesthetist, who was an independent contractor and not an employee of the physician. The nurse anesthetist failed to remove an intravenous line that he had placed on the plaintiff's right arm. Plaintiff brought a lawsuit against the nurse anesthetist, the physician and his practice group, alleging that the nurse anesthetist negligently failed to remove the intravenous catheter from her arm, and that as a result, she suffered permanent injuries. The plaintiff alleged that the doctor should be held liable for the nurse anesthetist's negligence based on the theory of ostensible agency.

Prior to this ruling, Pennsylvania courts had only applied the doctrine of ostensible agency to hospitals and Health Maintenance Organizations (HMO). Ostensible agency is defined as "one who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such." Under the doctrine of ostensible agency, Pennsylvania courts have held that a hospital or HMO may be held liable for the negligent acts or omissions of an independent doctor. Pennsylvania courts have stated that the two factors relevant to a finding of ostensible agency are: (1) whether the patient looks to the institution, rather than the individual physician for care; and (2) whether the hospital "holds out" the physician as its employee.

The doctrine of ostensible agency violates the general rule that an employer is not liable for torts by an independent contractor in his employ. However, the Pennsylvania courts have recognized an exception to the general rule "which provides that one who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the extent as though the employer were supplying them himself or by his servants." The Pennsylvania court found no reason why the doctrine of ostensible agency should not be applied to the physician in this case. The court stated that "[t]he modern realities of the practice of medicine is that some physicians, without any affiliation to a hospital or HMO, maintain private offices in which they consult with patients and sometimes perform minor medical procedures. These doctors often have office employees who provide various forms of assistance to the doctors as well as the patients. ...In addition, some of these doctors often use the services of nurses on an independent contractor basis. In situations where the doctor performing the procedure on a patient in his office utilizes the services of an independent contractor nurse, it would be absurd to require such a patient to be familiar with the law of respondeat superior and so to inquire of each person who treated him whether he is an employee of the doctor or an independent contractor. A patient cannot be expected to quiz each and every assistant rendering services to the patient at the doctor's behest, to ascertain whether he or she as an employee or an independent contractor, and whether the doctor can be held liable for the assistant's negligence."

In reaching its ruling, the court also found that when a patient visits a doctor's office for medical attention, the patient normally looks to the doctor for care.  The patient does not normally visit a doctor's office seeking to be treated or cared for by the doctor's independent contractors.

II.  EMPLOYMENT ISSUES

New Jersey Court Holds Trial Judge Not Compelled To Find That Plaintiff Is Handicapped Under The New Jersey Law Against Discrimination Solely Because Of Uncontroverted Medical Evidence If Sufficient Evidence To Support Contrary Finding By The Jury.

In Domurat v. CIBA Specialty Chemicals Corp., Superior Court of N.J., Appellate Division, No. A-5221-00T2 (unpublished), July 5, 2002, the plaintiff brought an employment discrimination case under the New Jersey Law Against Discrimination (LAD), N.J.S.A. § 10:5-1 et. seq. alleging that he was wrongfully discharged by CIBA because of his age and his handicaps. Plaintiff alleged that he suffered from attention deficit disorder, alcoholism, depression and Lyme disease. Before his employment by CIBA, the plaintiff had a long history of academic and employment success. However, after working for CIBA for 17 years, the plaintiff was terminated, following a probationary period brought on by the plaintiff's poor job performance. The plaintiff was terminated because he failed to meet the objectives during the probationary period.

Plaintiff then filed a law suit that alleged that he had been terminated in violation of the LAD because he was wrongfully discharged because of his age (50) and his handicaps (attention deficit disorder, alcoholism, depression and Lyme disease). During the jury trial, two psychiatrists testified as experts. The psychiatrist testifying for the plaintiff stated that the plaintiff suffered from attention deficit disorder, alcoholism and substance abuse disorder. The plaintiff's psychiatrist did not explain how the plaintiff had managed academic and employment success before being terminated. The defendant's expert testified that the plaintiff was suffering from attention deficit hyperactivity disorder, alcohol abuse, as well as depression and anxiety. The jury found that the plaintiff had not proven by a preponderance of the evidence that he was handicapped. The jury also found that the plaintiff was not performing the essential functions of his job at a level that met the defendant's legitimate expectations at the time of his termination. After the verdict, the plaintiff moved for a new trial contending that "there was no question but that plaintiff was handicap[ped] according to the undisputed medical evidence in the case and under the standards."

In analyzing a complaint brought under the LAD, New Jersey courts have traditionally sought guidance from the substantive and procedural standard established under federal law, specifically in the case of McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). Under the McDonnell Douglas case, the plaintiff must first prove he or she (1) belongs to a protected class; (2) applied for or held a position for which he or she was objectively qualified; (3) was not hired or was terminated from that position; and that (4) the employer sought to, or did fill the position with a similarly qualified person. The establishment of this criteria gives rise to a presumption of discrimination. However, once the plaintiff's threshold has been met, the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. After the employer does so, the burden then shifts back to the plaintiff to show that the employer's proffered reason was merely a pretext for discrimination.

In this case, the Appellate Division of the New Jersey Superior Court found that the trial judge was not compelled to find as a matter of law that the plaintiff was handicapped under the LAD solely because of the uncontroverted medical evidence, where there was sufficient evidence in the record to support a contrary finding by the jury. The Appellate Division found that there was a substantial body of evidence from which the jury could conclude that the plaintiff was not handicapped. For example, the plaintiff was successful academically, and initially performed his job responsibilities well. The court also found that there was no dispute that the plaintiff was unable and unwilling to perform his job responsibilities at the time of his termination. When the plaintiff returned to a full work schedule after a medical leave of absence, he was not subject to any medical restrictions, he had rejected substance abuse treatment and was granted extensions of time to complete his work. The court found that the jury's finding that the plaintiff was not performing the essential functions of his job at the time of his termination was adequately supported by the evidence.