Monturi v. Englewood Hosp.

• Decision Date: 15 March 1991
• Citation: 588 A.2d 408,246 N.J.Super. 547
• Parties: Annette MONTURI and Roy Monturi, Husband and Wife, Plaintiffs-Appellants, v. ENGLEWOOD HOSPITAL; Gynecological & Obstetrical Services of Englewood, P.A.; Edward Shnayerson, M.D.; Victor Borden, M.D.; Robert H. Glick, M.D.; Bruno Bufalini, M.D.; A. Prezioso, M.D.; and U. Sabato, M.D., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 547

246 N.J.Super. 547

588 A.2d 408

Annette MONTURI and Roy Monturi, Husband and Wife Plaintiffs-Appellants, v. ENGLEWOOD HOSPITAL; Gynecological & Obstetrical Services of Englewood, P.A.; Edward Shnayerson, M.D.; Victor Borden M.D.; Robert H. Glick, M.D.; Bruno Bufalini, M.D.; A Prezioso, M.D.; and U. Sabato, M.D., Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued Feb. 4, 1991.

Decided March 15, 1991.

Mary K. Cabala, Englewood Cliffs, for plaintiffs-appellants (Mary K. Cabala, on the brief).

M. Christie Wise, for defendants-respondents Englewood Hosp. Ass'n and Anthony Prezioso, M.D. (Bumgardner, Hardin & Ellis, attorneys; Robert L. Polifroni, of counsel, M. Christie Wise, Springfield, on the brief).

Maura Waters Brady, Short Hills, for defendant-respondent Robert Glick, M.D. (Giblin & Combs, attorneys; Craig S. Combs, Morristown, of counsel, Maura Waters Brady, Short Hills, on the brief).

Before Judges DREIER, ASHBEY and LANDAU.

The opinion of the court was delivered by

ASHBEY, J.A.D.

In this medical malpractice case, plaintiff ¹ appeals by leave granted from a partial summary judgment in favor of Englewood Hospital, Robert H. Glick, M.D., and Anthony Prezioso, M.D. ² dismissing plaintiff's punitive damages claim.

Taking all factual disputes as resolved in plaintiff's favor, plaintiff, while expecting the birth of her third child, received prenatal care from defendant Glick's medical group, Gynecological and Obstetrical Services of Englewood. In connection with that care, plaintiff planned to have tubal ligation surgery following the delivery. She signed a surgical consent form in advance in Glick's office which said:

I authorize Dr. ... Glick and whomever he/she may designate as assistant or associate to perform the following procedure(s): Obstetrical Management (Labor & Delivery), Episiotomy and repair, Fetal monitoring, Caesarean Section if necessary.

At the side of this form was written in hand "and postpartum tubal ligation." That modification was also signed by plaintiff.

Plaintiff was admitted to Englewood Hospital, while in labor, early in the morning on January 16, 1987. There she signed another consent form regarding the tubal ligation surgery. This form read,

I authorize Dr. ... Glick ... and whomever he/she may designate as assistant or associate to perform the following procedure(s): Post Partum Bilateral Tubal Ligation.

Plaintiff's signature was witnessed by a nurse, and Glick's signature and certification were attached the following day. ³ In her claim plaintiff said (and it appears undisputed) that Glick arrived at Englewood Hospital at 10:00 a.m. that day, accompanied by his 5-year old grandson. Glick introduced the child to plaintiff and then told the child to wait outside in the nurses' lounge. Just prior to the operation, Glick summoned the hospital surgical resident, Dr. Prezioso, and at 10:40 a.m., either in the operating room or in the hall outside, he introduced the resident to plaintiff as his assistant. Glick admitted not telling plaintiff what was meant by that term.

During the operation plaintiff's bowel was perforated. Repair was performed by a general surgeon who was summoned to the operating room. While recovering from the tubal ligation, plaintiff allegedly suffered adverse consequences, forming the basis for her compensatory claim which is still pending. This appeal turns on the legal significance of the roles played by Glick and Prezioso, the two operating doctors.

At her deposition, one of the nurses said that the first incision in the operation was made by Prezioso, and that shortly after that, it was Prezioso who perforated the bowel. Glick said that he performed the first incision. There was no dispute, however, that Glick performed the actual tubal ligation.

It is axiomatic that on a motion for summary judgment, a trial court may decide in favor of the moving party only "if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2; Judson v. Peoples Bank and Trust Co. of Westfield, 17 N.J. 67, 73-75, 110 A.2d 24 (1954). All doubts and unresolved inferences must be resolved in favor to the non-moving party. Baer v. Sorbello, 177 N.J.Super. 182, 185, 425 A.2d 1089 (App.Div.), certif. denied 87 N.J. 388, 434 A.2d 1070 (1981). This is also the standard of appellate review. See Shebar v. Sanyo Business Systems Corp., 111 N.J. 276, 280, 544 A.2d 377 (1988).

At issue is whether the proffered facts supported a finding that either of the doctors had committed the intentional tort of "ghost surgery" battery. That claim must be understood within the context of punitive damages in general. Punitive damages are generally characterized as punishment or deterrence for particularly egregious conduct. Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 48, 477 A.2d 1224 (1984); Leimgruber v. Claridge Associates, Ltd., 73 N.J. 450, 454, 375 A.2d 652 (1977). Such damages often depend on malice, defined as ill will, a willingness or intent to injure. See Bock v. Plainfield Courier-News, 45 N.J.Super. 302, 312, 132 A.2d 523 (App.Div.1957). See also 49 Prospect Street Tenants Assoc. v. Sheva Gardens, Inc., 227 N.J.Super. 449, 479, 547 A.2d 1134 (App.Div.1988); Edwards v. Our Lady of Lourdes Hospital, 217 N.J.Super. 448, 460, 526 A.2d 242 (App.Div.1987); Berg et al. v. Reaction Motors Div. Thiokol Chemical Corp., 37 N.J. 396, 413, 181 A.2d 487 (1962).

No "malice" or intent to injure, however, is required to establish battery in general or specifically, "ghost surgery." In Perna v. Pirozzi, 92 N.J. 446, 457 A.2d 431 (1983), the Supreme Court held that such a battery results when a medical procedure is performed by a "substitute" doctor regardless of good intentions. Id. at 459-465, 457 A.2d 431. The Court there took notice of standards published by the Judicial Council of the American Medical Association, which read:

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 creating the physician-patient relationship. He cannot properly delegate to another the duties which he is required to perform personally.

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...