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            When patients are confronted with the issue of whether to undergo surgical treatment for a medical condition, they want to feel assured that the surgeon who performs the procedures is sufficiently qualified to treat them.  Before they exercise their informed consent to surgery, many patients inquire about the level of experience their surgeon has with performing the proposed procedures.  In response, physicians may be inclined to make statements to assure the patient of their qualifications.  In doing so, physicians must be careful that they are accurately representing their level of experience.  The Appellate Division of the Superior Court in New Jersey recently held that a physician can be sued for fraudulently misrepresenting their expert qualifications. 

            In Howard v. Heary, the plaintiff claimed that he relied upon the defendant surgeon’s misrepresentations about his qualifications when consenting to surgery.  Joseph Howard suffered from cervical myelopathy secondary to cervical stenosies and a significantly large C3-C4 disc herniation.  Mr. Howard went to see Dr. Heary, a neurosurgeon and assistant professor at the University of Medicine and Dentistry in Newark to treat his condition.  Dr. Heary recommended surgical treatment.  On March 5, 1997, Mr. Howard underwent surgery which consisted of anterior cervical decompressions with corpectomies of the C4, C5, and C6 vertebral bodies.  The surgery was not successful in treating Mr. Howard’s medical condition, and he became quadriplegic after the procedure.   Mr. Howard filed a complaint of medical malpractice against Dr. Heary in which he claimed that he claimed that Dr. Heary deviated from the standard of care when performing the operation. 

            During the course of discovery in the medical malpractice, Dr. Heary had his deposition taken.  Dr. Heary testified about his qualifications and his experience with performing surgery.  Dr. Heary testified that he became board certified about two years after performing surgery upon Mr. Howard.  Dr. Heary also testified that he had performed a couple dozen procedures similar to Mr. Howard’s at the time he operated upon Mr. Howard.  When Mr. Howard learned of Dr. Heary’s testimony, he claimed that this testimony was inconsistent with what Dr. Heary told him about his credentials before the surgery.  Mr. Howard claimed that in response to specific inquiries made by his wife, Dr. Heary advised them that he was board certified and that he performed approximately sixty operations per year which were similar to Mr. Howard’s proposed procedure for a period of eleven years. 

            Mr. Howard then moved to amend his complaint to add a claim of fraudulent misrepresentation based upon Dr. Heary’s alleged contradictory deposition testimony.  In response to Mr. Howard’s motion to amend the complaint, Dr. Heary submitted a certification denying that he made the representations that Mr. Howard claimed.  The Superior Court denied the motion to amend and Mr. Howard appealed. 

            On appeal, counsel for Mr. Howard argued that the fraud claims should be added to the claims of medical malpractice since they arose out of the same facts in controversy.  Counsel for Dr. Heary argued that the fraud claims were without merit.  The appeals court reversed the order denying the motion to amend on the grounds that amending the complaint would not result in undue prejudice to Dr. Heary since a trial date was not imminent.  In so ruling, the appeals court explained that Mr. Howard could recover for his claim of fraudulent misrepresentation if he could show that Dr. Heary lied about his qualifications and experience and that Mr. Howard relied upon these misrepresentations to his detriment. 

            Allowing patients to bring claims of fraudulent misrepresentation is significant because cases of this nature are easier to prove then cases of medical negligence.  Whereas cases of medical negligence require a plaintiff to present expert testimony as to how the defendant physician allegedly breached the standard of care, a claim of fraudulent misrepresentation does not require any such expert testimony.  As a result, physicians must be cautious about overstating their qualifications to their patients.  This is particularly a concern if the patient is relying upon the physician’s qualification when exercising their informed consent to undergo treatment. Claims of fraudulent misrepresentation are also considered intentional torts and are not covered by malpractice insurance.  If the plaintiff presents evidence that the misrepresentation was made by the physician in wanton disregard for a patient’s rights, this could result in a jury award of punitive damages.


Sufficiently Qualified Surgeons

by Attorney Frank E. Reardon

June 2001