## Facts

- Thomas R. Perna, Jr. consulted Michael J. Pirozzi, M.D., for kidney stone treatment and agreed to surgery.
- Perna signed a written consent form naming Dr. Pirozzi as the operating surgeon.
- The medical group’s practice was to share patients and decide internally which physician would perform surgery.
- On the day of surgery, Anthony Del Gaizo, M.D. performed the operation and Patrick N. Ciccone, M.D. assisted; Dr. Pirozzi was not present.
- Perna alleged he specifically requested Dr. Pirozzi and was not told another surgeon would operate.
- After complications and readmission, Perna learned Dr. Pirozzi had not performed the surgery.
- Perna and his wife sued, alleging malpractice and lack of consent based on the undisclosed substitution.
- A malpractice panel found no basis for malpractice and declined to decide the informed-consent issue; the panel’s finding was admitted at trial.
- The trial court barred evidence suggesting possible bias of the panel physician and barred impeachment of Dr. Pirozzi with alleged inconsistent statements made before the panel.
- The jury returned a defense verdict; the Appellate Division affirmed; the Supreme Court granted review.

## Issues

1. Whether plaintiffs may impeach a defendant physician at trial with prior inconsistent statements made before a medical malpractice panel.
2. Whether plaintiffs may present evidence of potential bias of the panel physician when the panel’s determination is admitted at trial.
3. Whether the malpractice panel procedure and admission of its determination violate the right to jury trial or equal protection.
4. Whether undisclosed substitution of a surgeon different from the one named in the consent form constitutes battery, malpractice, or both.

## Decision

- The Supreme Court reversed and remanded for a new trial.
- The trial court committed reversible error by excluding evidence bearing on the panel physician’s potential bias.
- The trial court committed reversible error by barring cross-examination of Dr. Pirozzi with alleged prior inconsistent statements made before the panel.
- Rule 4:21 and the admission of the panel’s determination were upheld as constitutional.
- Performing surgery by a surgeon other than the one specifically authorized, without the patient’s knowledge and consent, constitutes battery.
- A physician who obtains consent to perform an operation but delegates it to another without disclosure deviates from accepted medical standards and may be liable for malpractice as well.

## Legal Principles

- Consent to surgery may be limited to a particular physician; when a consent form names a surgeon, the surgeon’s identity is material to consent.
- Unconsented physical contact by a substitute surgeon—when consent was limited to another identified surgeon—supports an action for battery.
- The same undisclosed substitution can also support a professional negligence claim where the consenting physician’s conduct falls below accepted medical standards.
- When a malpractice panel’s finding is admitted at trial, parties must be permitted to present evidence reasonably bearing on a panelist’s impartiality.
- Ordinary impeachment rules apply to trial witnesses; prior inconsistent statements made in panel proceedings may be used for cross-examination.
- A malpractice panel system does not violate the right to jury trial when the jury remains the final factfinder and the panel determination is treated as evidence.
- Differential procedures for medical malpractice cases satisfy equal protection if supported by rational purposes and trial fairness is preserved.

## Conclusion

The court ordered a new trial because the plaintiffs were improperly prevented from challenging the credibility of the malpractice panel and a key defense witness, while also holding that an undisclosed substitution of a surgeon named in a consent form constitutes battery and may concurrently constitute malpractice, and that the state’s malpractice panel process is constitutional when accompanied by fair trial safeguards.


Perna v. Pirozzi, 92 N.J. 446 (1983)