## Facts

- David Murphy suffered a severe work-related back injury and was referred to Dr. Dante Implicito, an orthopedic surgeon, for surgical treatment.
- Implicito recommended a lumbar diskectomy and fusion using bone graft material; Dr. George Jacobs served as co-surgeon.
- Murphy alleged he consented to surgery only if the surgeons used his own bone (autograft) and did not use cadaver bone (allograft); defendants denied any such condition or agreement.
- Murphy signed a consent form describing “lumbar diskectomy and fusion with iliac crest bone graft + ‘steffe plates,’” but the surgeons denied signing the physician portion of the form.
- During the surgery, cadaver bone was used as dowels in the fusion.
- The fusion failed; Murphy remained in pain and disabled, later learned cadaver bone had been used, and underwent further surgery to remove the cadaver bone, but remained totally disabled.
- Murphy and his wife sued for lack of informed consent, battery, and breach of contract; Marilyn Murphy asserted a per quod/loss-of-consortium claim.
- The trial court dismissed the complaint at the close of plaintiff’s case; on appeal, the informed-consent claim remained dismissed, but battery, breach of contract, and per quod claims were reinstated for retrial.
- Before retrial, the trial court limited David Murphy’s damages to harm “directly” caused by the use of cadaver bone and limited Marilyn’s per quod claim to battery, barring per quod damages on breach of contract.

## Issues

1. In a medical battery/breach-of-contract case based on an alleged conditional consent (no cadaver bone), must damages be confined to injuries separately attributable to the cadaver bone, or may the plaintiff recover for the entire surgical injury when harms are not reasonably separable?
2. When a new trial is ordered after reversal of a dismissal, are plaintiffs limited to the evidence and theories presented at the first trial, or may they present new evidence and theories consistent with the remaining claims?
3. May a spouse’s per quod/loss-of-consortium claim be predicated on breach of contract causing personal injury, as well as on battery?

## Decision

- The Appellate Division reversed and modified the pre-retrial order limiting damages and restricting the per quod claim, and remanded for retrial.
- If the jury finds the use of cadaver bone rendered the surgery unauthorized and the resulting harm cannot be reasonably divided, David Murphy may recover damages for all injuries resulting from the surgery, not only cadaver-bone-specific harm.
- If defendants contend some injuries would have occurred even with an authorized procedure, defendants bear the burden to prove a reasonable basis for apportioning damages.
- On remand, the case proceeds as if no prior trial occurred on the reinstated claims; plaintiffs may introduce new evidence, experts, and theories consistent with the surviving causes of action and procedural rules.
- Marilyn Murphy’s per quod claim may be pursued on breach of contract as well as battery, so long as her loss was proximately caused by David Murphy’s injury.

## Legal Principles

- A medical battery may be shown where a physician performs treatment in a substantially different manner than the patient authorized, including violating a material condition of consent.
- When wrongful conduct and other factors combine to cause an indivisible injury, and damages cannot be reasonably apportioned, the plaintiff may recover for the entire injury.
- A defendant seeking to limit liability through apportionment bears the burden of establishing a reasonable basis to segregate damages.
- After reversal and remand for a new trial on reinstated claims, parties are generally not confined to the prior trial record and may present additional proof and refined theories within ordinary procedural limits.
- Per quod/loss-of-consortium damages may be available where a defendant’s breach of a medical agreement causes personal injury that in turn causes compensable loss to the spouse, regardless of whether the underlying claim is labeled tort or contract.

## Conclusion

The court rejected a pretrial order that confined damages to cadaver-bone-specific harm and that limited loss-of-consortium recovery to a battery theory, holding that indivisible surgical injuries may support full recovery, apportionment is defendants’ burden, parties may present new proof at retrial, and per quod damages may flow from contract-based personal injury.


Murphy v. Implicito, 392 N.J. Super. 245, 920 A.2d 678 (N.J. Super. Ct. App. Div. 2007)