N.J. court rules doctors can be sued for embellishing credentials

Physicians who pump up resumes could be vulnerable to lawsuits that medical liability insurance won't cover.

By Tanya Albert, amednews staff. April 16, 2001.

Physicians' personal assets are at greater risk in medical malpractice cases after a New Jersey court gave patients the right to sue doctors if they exaggerate their qualifications.

A Superior Court of New Jersey Appellate Division judge in March gave a patient the go-ahead to sue his doctor for fraudulent misrepresentation as part of his medical malpractice lawsuit.

Case at a glance

The decision gives New Jersey patients a recourse they've never had before. Legal experts believe more states soon may recognize similar claims.

"It's a significant breakthrough in the law, and it exposes physicians to claims that aren't covered by malpractice insurance," said New Jersey attorney Bruce Nagel, who represents Joseph Howard, the patient who filed the lawsuit. "Doctors must be extremely cautious about not overstating their qualifications."

In a deposition, neurosurgeon Robert Heary, MD, said he had become board certified about two years after he performed an operation on Howard, who suffered from cervical myelopathy secondary to cervical stenosis and a disc herniation. Dr. Heary also said he had performed similar surgeries about 11 times before operating on Howard, according to court documents.

But Howard, who is now quadriplegic, says he remembers Dr. Heary telling him he was board certified and that he had performed similar operations hundreds of times before Howard's surgery, according to court documents.

Dr. Heary denies Howard's claim. He will appeal the decision to let the charge become part of the malpractice suit.

Although the ruling creates a new way for patients to sue their doctors, some medical malpractice attorneys say physicians shouldn't be overly concerned.

New Jersey attorney Matthew Schorr, who is representing Dr. Heary, doesn't believe the new ruling will create an epidemic of lawsuits. "It might be used in flawed recollection cases," he said.

New territory

Medical malpractice attorneys say fraudulent misrepresentation is a logical extension of existing law.

Two previous New Jersey court cases laid the groundwork and the appellate division court took the next step in Howard v. University of Medicine and Dentistry et al. by allowing Howard to file this claim against his physician.

"This makes it crystal clear that if a doctor misrepresents his or her credentials, patients can sue," said New Jersey medical malpractice lawyer Kenneth G. Andres Jr. "Before, it may or may not have been admissible depending on the judge."

The ruling is particularly significant because the fraud claim holds doctors to a different legal threshold than they're held to in medical malpractice cases. Unlike medical malpractice, patients don't have to show that a doctor deviated from the appropriate standard of care to prove fraudulent misrepresentation.

It "has distinctly different elements than the claim of medical malpractice," the court wrote.

To prove that a doctor fraudulently convinced a patient to undergo surgery, the court said a patient must prove that a doctor knowingly made a "material misrepresentation of a presently existing or past fact" with the intent that the patient would rely on it to his or her "detriment."

If fraud is proven, a jury can award punitive damages if a doctor committed an "evil-minded act" or an act accompanied by willful and wanton disregard of the patient's rights.

"It exposes doctors to huge damage awards that they weren't subject to before," Nagel said.

Informed consent

The court said it was important to let patients bring a separate fraud claim because, to give informed consent, patients need to know whom they are hiring to operate. "Even more private than the decision who may touch one's body is the decision who may cut it open and invade it with hands and instruments," wrote New Jersey Appellate Division Judge Jack Litner, citing an earlier decision.

When making a decision, patients weigh physicians' qualifications and experiences.

"If Dr. Heary lied about his qualifications and experience, then a jury could find that he misled plaintiff as to the abilities and, hence, the true identity of the physicians who would perform the surgery," the court said. "Under such circumstances, plaintiff is entitled to damages for injuries proximately caused by the surgery if plaintiff can show reasonable reliance and detriment."

And patients could be entitled to money even if there isn't medical negligence, the court said. "A jury could award damages for mental anguish resulting from the belated knowledge that the operation was performed by a doctor to whom the patient had not given consent," the court said.

Andres said the court's decision to recognize fraudulent misrepresentation helps ensure that patients are making informed decisions when they choose surgeons.

"It's a win-win situation," Andres said. "It will really come down hard on the few unscrupulous doctors and benefit the good doctors."

ADDITIONAL INFORMATION:

Case at a glance

Joseph Howard v. University of Medicine and Dentistry of New Jersey, et al.

Venue: Superior Court of New Jersey, Appellate Division.
At issue: The court said a patient can sue a doctor for fraudulent misrepresentation if the doctor exaggerates his or her credentials.
Potential impact: The ruling is an extension of the current law, giving patients a new recourse. Legally, the charge can be easier to prove than medical malpractice because a patient isn't required to show that a doctor deviated from the appropriate standard of care.