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 Ann Hardy argued the cause for respondents 

(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NOT FOR PUBLICATION WITHOUT THE 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 parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-1926-22

Christopher Donohue, of counsel; Beth Ann Hardy, on 

the brief). 

PER CURIAM 

 In this medical negligence action, plaintiff Jacqueline Studer1 appeals 

from a January 20, 2023 Law Division order dismissing her complaint against 

defendants Daniel Pyo, M.D., and Summit Health, for failure to file an 

appropriate affidavit of merit (AOM). Because plaintiff's AOM did not satisfy 

the same-specialty requirement under N.J.S.A. 2A:53A-41(a), we affirm. 

 We summarize the pertinent facts and procedural history 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 developed dry eye syndrome and 

experienced several related side effects and, as such, "it is highly probabl[e] that 

she will lose her eyesight." Plaintiff averred Dr. Pyo never advised her of the 

risk of developing dry eye syndrome following the blepharoplasty surgery. 

Based on these allegations, plaintiff asserted claims against Dr. Pyo alleging 

lack of informed consent and general medical negligence. She also asserted a 

vicarious liability claim against Summit Health. 

1

 All references to plaintiff in our opinion are to Jacqueline Studer. The per 

quod claim of her husband, Timothy Studer, was wholly derivative. 
3 A-1926-22

In their answer to plaintiff's complaint, defendants 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 treat 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 probability that the care, skill 

or knowledge exercised or exhibited in the care rendered to [plaintiff] by [Dr. 

Pyo], that is the subject of the within action, fell outside applicable professional 

standards." 

Upon receipt of the AOM, defendants objected, noting their answer stated 

"Dr. Pyo [wa]s a [b]oard[-]certified plastic surgeon and was practicing within 

that specialty at all times relevant" to the allegations set forth in plaintiff's 

complaint. Defendants therefore contended, as an ophthalmologist, Dr. 

Scannapiego was not similarly credentialed as required 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 nonetheless required to comply with 

the AOM statute. 
4 A-1926-22

 After expiration of the 120-day timeframe for filing 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 voluntarily dismissed her medical 

malpractice claim and argued an AOM was not necessary to proceed on her 

remaining informed consent claim. Alternatively, plaintiff asserted she was not 

required to submit an AOM pursuant to the common knowledge 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 based 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 assessment of whether 

an AOM was required in an informed consent case," the Court explained in such 

cases, "the physician's negligence is in the inadequate disclosure and the 
5 A-1926-22

damages claimed derive 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 common 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 argues 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 sounded 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 First 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 the AOM statute because the

same-specialty requirement was not applicable to her informed consent claim. 

In the alternative, plaintiff argues her affiant was similarly qualified as 

evidenced by his statement that he was "a physician credentialed to treat patients 
6 A-1926-22

for the medical condition, or to perform the procedure 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 substantially for the cogent 

reasons expressed by the motion judge. We therefore conclude plaintiff's 

contentions lack sufficient merit to warrant extended discussion in a written 

opinion, R. 2:11-3(e)(1)(E), beyond the comments that follow. 

Simply stated, plaintiff's informed consent claim required 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" requires 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 malpractice"); Ehrlich v. Sorokin, 

451 N.J. Super. 119, 129 (App. Div. 2017) (recognizing that although informed 

consent "is generally unrelated to the standard of care for performing medical 

treatment," it is "clear" that these two theories are "simply sub-groups of a broad 

claim of medical negligence") (quoting Newmark-Shortino v. Buna, 427 N.J. 
7 A-1926-22

Super. 285, 303 (App. Div. 2012) (internal quotations omitted)); Matthies v. 

Mastromonaco, 310 N.J. Super. 572, 593 (App. Div. 1998) (recognizing 

"[i]nformed consent is a negligence concept"). 

Further, we are not persuaded by plaintiff's argument that the 2004 

enactment of the PFA rendered pre-PFA caselaw inapplicable. Rather, the PFA 

supports the motion judge's decision that a same-specialty 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 "modified the AOM statute for 

medical negligence actions, requiring the AOM affiant to be 'licensed as a 

physician or other health care professional in the United States and meet 

[specific] criteria'") (alteration in original) (quoting 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 

Drs. Pyo and Scannapiego did not share the same specialty, plaintiff's AOM was 

deficient. 

 Affirmed.