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Starozytnyk v. Reich4/25/2005
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 16, 2005
The issue in this appeal is whether under our Supreme Court's decisions in Perna v. Pirozzi, 92 N.J. 446 (1983), and Howard v. University of Medicine and Dentistry of New Jersey, 172 N.J. 537 (2002), a patient who consents to a spinal fusion by one surgeon under the mistaken belief that he is being assisted by a specific vascular surgeon, and has no proof of injuries resulting from the substitution, has an action against the operating surgeon for battery, breach of contract, or breach of fiduciary duty owed by a physician to a patient. The trial judge found in the negative and granted summary judgment in favor of the defendant-surgeon who obtained the consent and performed the operation. We affirm.
I.
In this medical malpractice action, plaintiff Walter Starozytnyk appeals from summary judgment in favor of defendant Dr. Steven Reich, who performed his spinal fusion surgery, dismissing his claims for battery, lack of informed consent, breach of contract and breach of fiduciary duty. Plaintiff's claim was based on the allegation that defendant had told him a specific vascular surgeon, Dr. Alan Graham, would perform the vascular portion of plaintiff's surgery and the specified doctor was not the surgeon who assisted in the operation.
Plaintiff had been a patient of Dr. Reich since l993 for lower back pain. Dr. Reich performed back surgery on him in l994 but by mid-1997, plaintiff had increasing pain in his lower back. At his deposition, plaintiff testified he was very reluctant to undergo the surgery recommended by Dr. Reich, an anterior spinal fusion at two levels, L4-L5 and L5-S1, and the implementation of medical devices known as BAK cages. The principal factor influencing plaintiff to change his mind and have the surgery was that "Dr. Reich told that [Dr. Reich] would be able to get the chief vascular surgeon at Robert Wood Johnson Hospital [Dr. Graham] to perform the vascular surgery part of the surgery." Dr. Reich also told him Dr. Graham was "the one who taught the other doctors how to do it. That he was one of the best surgeons in the country. And that you couldn't get anybody better. That he was the teacher who taught the teachers." Plaintiff agreed to undergo the surgery when, after six months of discussing the surgery and his reticence at great length, Dr. Reich promised he would get Dr. Graham to perform the vascular part of the surgery. Plaintiff testified he wanted Dr. Graham to be present to ensure that he would not suffer from a condition known as retrograde ejaculation, a potential side effect of the procedure.
Plaintiff went to the hospital on October 21, 1997 for pre-operative testing, where he received a phone call from Dr. Reich's office stating that the surgery was to be rescheduled because of Dr. Graham's unavailability. Prior to the surgery, plaintiff did not speak to any physician involved in the surgery other than Dr. Reich. Plaintiff claimed he would not have gone through with the surgery if he had known Dr. Graham would not be present; this point was clearly communicated to and understood by Dr. Reich. Christine Rudolph, RN, a case manager from plaintiff's workers' compensation insurance carrier who accompanied him on his visits to Dr. Reich, wrote in an October 2, 1997 report that "Dr. Graham who is Director of Vascular Surgery [would] be present" at the surgery tentatively scheduled for October 21, 1997.
On November 4, 1997, plaintiff was admitted for surgery to Robert Wood Johnson University Hospital. He signed a "Request for Operative or Procedural Intervention," a boilerplate form which authorized Dr. Rei
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