Inflating MD expertise could add to legal woes
Court backs misrepresentation suit
A recent New Jersey court decision means that physicians who overstate their qualifications place themselves and their personal assets at increased risk in medical malpractice cases, say legal experts. In March, a Superior Court of New Jersey Appellate Division judge ruled it was proper for a patient to sue his doctor for fraudulent misrepresentation as part of his medical malpractice lawsuit.
The case stemmed from an operation that left a patient a quadriplegic. The plaintiff said his doctor told him before the operation that he was board-certified when, in fact, he was not. The plaintiff also said the doctor told him he had performed that particular operation hundreds of times when, in fact, he had only performed it 11 times.
"It’s a significant breakthrough in the law, and it exposes physicians to claims that aren’t covered by malpractice insurance," says 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."
Standard of care irrelevant to fraud
One important ramification of the ruling is that the fraud claim holds doctors to a different legal threshold from a medical malpractice case. Unlike medical malpractice, patients don’t have to show that a doctor deviated from the appropriate standard of care to prove fraudulent misrepresentation. To prove that a doctor fraudulently convinced a patient to undergo surgery, the patient only has to prove that the 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, the court noted.
The New Jersey court said it was important to let patients bring a separate fraud claim because patients can’t give fully informed consent if they don’t even know whom they are hiring to perform the operation.
"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. "If [the doctor] 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.
Even in cases where no medical negligence is alleged, patients could be entitled to sue for and collect damages, because 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.
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