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Supreme Court of New Jersey

“Few decisions bespeak greater trust and confidence than the decision of the patient to proceed with surgery. Implicit in that decision is a willingness of the patient to put his life or her life in the hands of a known and trusted medical doctor… the doctor who, without the consent of the patient, permits another surgeon to operate violates not only a fundamental tenet of the medical profession, but also a legal obligation.” 92 N.J. at 463-465, 457 A.2d at 440-441.

Mairi Pat Maguire dealt a severe blow to Pam’s case by having the Court dismiss the charge  that Richard Wu was actually operating the catheter instead of Calkins, whom Pam was believed would be doing the job.

“The Amended Lack of Informed Consent complaint is grounded on allegations that Doctor Calkins failed to disclose that a resident or fellow or someone with far less experience than he might perform a critical aspect of the procedure and had he done so, Plaintiff would not have consented to the procedure.

“The operative facts involve whether Plaintiff was told that Dr. Wu, as a fellow, would assist in the ablation procedure, Dr. Wu’s training and skill level, what aspects of the procedure were performed by Dr. Wu and what aspects of the ablation procedure are considered to be ‘critical.'”

Mairi Pat correctly points out that the original complaint, “to the extent that it asserts an informed consent claim, grounds those allegations on the fact that Dr. Calkins performed the ablation procedure.”

But  Dr. Wu performed the procedure, so the amended complaint does not relate back to the original complaint and must therefor be dismissed. So the cover up was successful for the purposes of litigation.

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