SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1926- 22 JACQUELINE STUDER and TIMOTHY STUDER, her husband, Plaintiffs-Appellants,

v. DANIEL J. PYO, M.D., and SUMMIT HEALTH, f/k/a SUMMIT MEDICAL GROUP, Defendants-Respondents.

Argued January 23, 2024

– Decided March 22, 2024 Before Judges Rose and Smith. On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L

- 0250

- 22. Gregg D. Trautmann argued the cause for appellants (Trautmann & Associates, LLC, attorneys; Gregg D. Trautmann, on the briefs). Beth A nn Hardy argued the cause for respondent s (Farkas & Donohue, LLC, attorneys; David

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1926

- 22 Christopher Donohue, of counsel; Beth A nn Hardy, on the brief).
PER CURIAM In this medical negligence action, plaintiff Jacqu eline Studer 1 appeals from a January 20, 2023 Law Division order dismissi ng her complaint against defendants Daniel Pyo, M.D., and Summit Health, for failure to file an appropriate affidavit of merit (AOM). Because plai ntiff's AOM did not satisfy the same-specialty requirement under N.J.S.A. 2A:53 A- 41 (a) , we affirm. We summarize the pertinent facts and procedural hi story from plaintiff's complaint, upon which the motion judge relied

. On April 7, 2021, Dr. Pyo performed a cosmetic lower face lift and lower and upper blepharoplasty on plaintiff. After the procedure, plaintiff develope d dry eye syndrome and experienced several related side effects and, as su ch, "it is highly probabl[e] that she will lose her eyesight ." Plaintiff averred Dr. Pyo never advised her of th e risk of developing dry eye syndrome following the blepharo plasty surgery. Based on these allegations, plaintiff asserted clai ms against Dr. Pyo alleging lack of informed consent and general medical neglig ence. She also asserted a vicarious liability claim against Summit Health.

1 All references to plaintiff in our opinion are to J acqueline Studer. The per quod claim of her husband, Timothy Studer, was whol ly derivative.3 A- 1926

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In their answer to plaintiff's complaint, defendant s demanded an AOM in accordance with N.J.S.A. 2A:53A- 27. Thereafter, plaintiff timely served an
AOM authored by Saveren Scannapiego, M.D. In his affidavit, Dr. Scannapiego stated he was a " board-certified . . . ophthalmologist" and "a physician credentialed to t reat patients for the medical condition, or to perform the procedure that is the basis for this claim or action." Dr. Scannapiego opined "there exists a reasonable p robability that the care, skill or knowledge exercised or exhibited in the care ren dered to [plaintiff] by [Dr. Pyo], that is the subject of the within action, fell outside a pplicable professional standards." Upon receipt of the AOM, defendants object ed , noting their answer stated "Dr. Pyo [wa]s a [b]oard[-]certified plastic surgeo n and was practicing within that specialty at all times relevant" to the allega tions set forth in plaintiff's complaint. Defendants therefore contended, as an ophthalmologi st, Dr. Scannapiego was not similarly credentialed as requi red by the AOM statute. See N.J.S.A. 2A:53A-41(a). Further, even if plaintiff "proceed[ed] solely on a theory of lack of informed consent" she was nonethe less required to comply with the AOM statute.4 A- 1926

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After expiration of the 120-day timeframe for fili ng a valid AOM , see N.J.S.A. 2A:53A- 27 , defendants moved to dismiss plaintiff's complaint with prejudice, arguing plaintiff failed to file a same- specialty AOM. During argument before the motion judge, plaintiff volunta rily dismissed her medical malpractice claim and argued an AOM was not necessa ry to proceed on her remaining informed consent claim. Alternatively, plain tiff asserted she was not required to submit an AOM pursuant to the common kn owledge exception. Following argument, the judge reserved decision and thereafter issued a cogent written opinion granting defendants' motion. Citing our decision in Risko v. Ciocca, 356 N.J. Super. 406, 412 (App. Div. 2003), the judge correctly recognized an AOM is a prerequisite to an action ba sed on lack of informed

consent. Applying the factors set forth in Couri v. Gardner, 173 N.J. 328, 334 (2002), the judge found plaintiff's personal injury action sounded in negligence because her informed consent claim alleged Dr. Pyo failed to warn plaintiff about the risks of blepharoplasty surgery. The judge reasoned that although our Supreme Court's decision in Howard v. University of Medicine & Dentistry of New Jersey , 172 N.J. 537, 549 (2002), "did not involve an asses sment of whether an AOM was required in an informed consent case," t he Court explained in such cases, "the physician's negligence is in the inadeq uate disclosure and the5 A- 1926

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damages claimed de rive from the harm to the patient caused by a procedure that would not have occurred if the disclosure had been adequate." The judge therefore rejected plaintiff's reliance on the comm on knowledge exception to the
AOM requirement and further found the affidavit served by plaintiff failed to meet the same-specialty requirement. On appeal, plaintiff reprises her arguments raised before the motion judge but abandons her common knowledge claim. Plaintiff ar gues that because she dismissed her medical malpractice claim

– which was based on a deviation from the standard of care

– her informed consent claim no longer sound ed in negligence and, as such, an AOM was not required. She attempts to distinguish our decisions in Risko and Darwin v. Gooberman, 339 N.J. Super. 467 (App. Div. 2001), abrogated in part by Couri, 173 N.J. at 335, because they were decided before the 2004 enactment of the Patients F irst Act (PFA), N.J.S.A. 2A:53A -37 to - 42 , which imposed the same-specialty requirement. Plaintiff therefore argues Dr. Scannapiego's AOM satisfies th e AOM statute because the same-specialty requirement was not applicable to her informed consent claim. In the alternative, plaintiff argues her affiant wa s similarly qualified as evidenced by his statement that he was "a physician credentialed to treat patients6 A- 1926

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for the medical condition, or to perform the proced ure that is the basis for this claim or action." After de novo review of the court's dismissal under the AOM statute, Castello v. Wohler, 446 N.J. Super. 1, 14 (App. Div . 2016) , we reject plaintiff's contentions and affirm the order under review subst antially for the cogent reasons expressed by the motion judge. We therefor e conclude plaintiff's contentions lack sufficient merit to warrant extend ed discussion in a written opinion , R. 2:11 -3(e)(1)(E), beyond the comments that follow. Simply stated, plaintiff's informed consent claim r equired an AOM because it was inextricably tied to the surgery and Dr. Pyo's alleged deviation from appropriate standards of care. See Risko, 356 N.J. Super. at 412 n.1 (noting an allegation of "lack of informed consent" require s an AOM (citing Darwin , 339 N.J. Super. at 480

- 81 )) ; see also Perna v. Pirozzi, 92 N.J. 446, 459 (1983) (holding if a claim "is characterized as a failure to obtain informed consent, the operation may constitute an act of medical malpract ice"); Ehrlich v. Sorokin , 451 N.J. Super. 119, 129 (App. Div. 2017) (recognizing that a lthough informed consent "is generally unrelated to the standard of care for performing medical treatment," it is "c lear" that these two theories are "simply sub-group s of a broad claim of medical negligence") (quoting Newmark-Shor tino v. Buna, 427 N.J.7 A- 1926

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Super. 285, 303 (App. Div. 2012) (internal quotatio ns omitted)); Matthies v. Mastromonaco, 310 N.J. Super. 572, 593 (App. Div. 1 998) (recognizing "[i]nformed consent is a negligence concept"). Further, we are not persuaded by plaintiff's argume nt that the 2004 enactment of the PFA rendered pre-PFA caselaw inapplic able. Rather, the PFA supports the motion judge's decision that a same-sp ecialty AOM was required here. See Pfannenstein v. Surrey , 475 N.J. Super. 83, 96 (App. Div.), certif. denied, 254 N.J. 517 (2023) (observing the PFA "mod ified the AOM statute for medical negligence actions, requiring the AOM affia nt to be 'licensed as a physician or other health care professional in the United States and meet [specific] criteria'") (alteration in original) (qu oting N.J.S.A. 2A:53A- 41) ; see also Nicholas v. Mynster, 213 N.J. 463, 481- 82 (2013) ("When a physician is a specialist and the basis of the malpractice action 'involves' the physician's specialty, the challenging expert must practice in the same specialty."). Because
Dr s. Pyo and Scannapiego did not share the same specialty, plaintiff's AOM was deficient. Affirmed.