Verdicchio v. Ricca
| Citation | 179 N.J. 1,843 A.2d 1042 |
| Parties | Kathleen VERDICCHIO and Vincent Verdicchio, Individually and as Executors of the Estate of Stephen Verdicchio, Plaintiffs-Appellants and Cross-Respondents, v. Anthony RICCA, M.D. and Hazlet Health Care, Defendants-Respondents and Cross-Appellants. |
| Decision Date | 15 March 2004 |
| Court | United States State Supreme Court (New Jersey) |
Philip G. Auerbach, Red Bank, argued the cause for appellants and cross respondents (Auerbach & Ryan, attorneys).
Richard A. Grossman, Brick, argued the cause for respondents and cross appellants (Grossman, Kruttschnitt, Heavey & Jacob, attorneys; Mr. Grossman and Thomas J. Heavey, on the briefs). Justice LONG delivered the opinion of the Court.
On appeal in this medical malpractice case, we revisit the thorny problem of assessing proximate cause in the context of harm generated by concurrent forces. More particularly, we are called on to apply the increased risk doctrine in a case alleging failure to diagnose cancer. On the facts before us, it is not known whether the cancer had metastasized at the time of the deviation. As a result, the trial court set aside a substantial verdict in plaintiffs' favor and the Appellate Division affirmed, essentially holding that the absence of proof regarding metastasis was a fatal flaw in plaintiffs' increased risk analysis. We now reverse, on the ground that those courts too narrowly characterized the notion of increased risk and required quantification that is not necessary under our jurisprudence.
The matter arose when plaintiffs Kathleen and Vincent Verdicchio, individually and as executors of the estate of their son, Stephen Verdicchio, filed a wrongful death and survivorship action against defendant, Dr. Anthony Ricca, alleging malpractice in connection with Dr. Ricca's failure to timely diagnose Stephen's cancer. Dr. Ricca answered, denying the allegations of the complaint. The matter was tried over eight days. At the end of the Verdicchios' case and again at the conclusion of the trial, Dr. Ricca moved to dismiss the complaint. The trial court reserved decision on both motions.
The jury returned a verdict declaring that Dr. Ricca had been negligent in his treatment of Stephen; that the negligence "increased the risk" of a bad outcome; and that that increased risk was a "substantial factor" in bringing about the ultimate harm that befell Stephen. It awarded the estate $6,500,000.00 in the survival action and $1,500,000.00 in the wrongful death action. Because the jury concluded that the underlying disease, osteosarcoma, was responsible for 45% of the outcome and Dr. Ricca for 55%, the total judgment of $8,000,000 was molded to $4,400,000.00. Dr. Ricca then moved for a judgment nothwithstanding the verdict.
The trial court granted that motion along with the previous dismissal motions on the ground that:
The Appellate Division affirmed the trial court's decision concluding that "plaintiffs failed to establish by expert testimony that Stephen was suffering from non-metastasized cancer at the time of the alleged deviation by defendant, and thus, failed to meet their burden of proof in an `increased risk' case under the modified proximate causation test enunciated in Evers v. Dollinger, 95 N.J. 399, 471 A.2d 405 (1984), Scafidi v. Seiler, [119] N.J. 93, 574 A.2d 398 (1990), and Gardner v. Pawliw, 150 N.J. 359, 696 A.2d 599 (1997)." The panel held that the jury was left with no proof, other than speculation, that Stephen's condition was such that, had the defendant diagnosed it as of January 1994, Stephen's chance of survival would have been increased.
The Verdicchios filed a petition for certification and Dr. Ricca, a cross-petition. We granted both, Verdicchio v. Ricca, 175 N.J. 79, 812 A.2d 1111 (2002), and now reverse.
The relevant facts established at trial are as follows: Dr. Ricca, a board certified internist, became Stephen Verdicchio's primary care physician on May 22, 1993, when Stephen was seventeen years old. Dr Ricca was selected by the Verdicchio family from a list of eligible physicians associated with the family's insurance carrier, Oxford Health. On that visit, Dr. Ricca recorded that Stephen was generally healthy but experienced some lethargy and difficulty running track at school. He also reported bowel movements after each meal.
Stephen saw Dr. Ricca again on August 3, 1993, to obtain medical clearance to compete on his high school track team. According to Mrs. Verdicchio, during that visit, she told the doctor that Stephen continued to have bowel problems and some difficulty breathing. Dr. Ricca ordered blood tests, a chest x-ray, and an electrocardiogram that all proved to be normal.1 According to Dr. Ricca, neither Mrs. Verdicchio nor Stephen mentioned any stomach pains, bowel problems or diarrhea. Dr. Ricca also examined Stephen's legs and knees and did not record any evidence of pain or deficits in range of joint motion.
Dr. Ricca again saw Stephen on October 2, 1993, when he administered a flu shot. Mrs. Verdicchio testified she made that appointment because Stephen was not feeling well, was still tired and lifeless, and continued to have bowel problems. He also continued to lose weight. Dr. Ricca denied that those symptoms were even mentioned during the visit. His records merely indicate that Stephen went in for a flu shot. In that connection, Mrs. Verdicchio testified as follows:
Mrs. Verdicchio testified that in response to her expressed concerns during that visit about Stephen's bowel problems, Dr. Ricca told her she was a paranoid mother not ready to let go of her son, and that that was adding stress for Stephen. She also testified that the doctor told her the bowel movements could be a sign of anorexia, which is found many times in runners, and that Stephen could also be using laxatives or other drugs. Dr. Ricca denied making any of those statements.
Mrs. Verdicchio recounted that in the late fall of 1993 to early January 1994, Stephen continued to complain of pain in his left leg and continued to lose weight. On January 25, 1994, Stephen and Mrs. Verdicchio went to see Dr. Ricca. Mrs. Verdicchio recounted that Stephen complained of problems with bowel movements, diarrhea, weight loss and specifically with pain in his left leg. Dr. Ricca denied that Stephen or his mother raised the issue of leg pain. He recorded in his computerized "Patient Chart Notes" that Stephen "appears seriously ill." The chart also indicated under "Current Complaint"—"diarrhea, constipation, and stomach pains." The patient history further described:
Otherwise healthy 17 year old male presents with several month history of diarrhea. The patient states that he has had periods of normal bowel movements followed by days of watery diarrhea. The patient states that he has never seen blood in the stool. The stool has never been black. He states that after a few mouthfuls of food he has to evacuate his bowels. He has occasional crampy abnormal pain. No fever, sweats, chills. Some arthralgias of the knees but the patient is a track runner. He is not yet sexually active. No vomiting. The patient states that he has periods of constipation. Actually, the patient has lost 17 pounds over the last 5 months.
[Emphasis added.]
Mrs. Verdicchio testified that Dr. Ricca never suggested even indirectly that Stephen was seriously ill:
A. No, no. He never told me that. If he would have told me that,—don't you think I would have went to another doctor? No mother, no parent has a doctor say to you, your child is seriously ill, when you know in your heart there is already something wrong and ignore it. No mother would do that. I'm sorry.
Mrs. Verdicchio stated in regard to the leg pain that Dr. Ricca told them that track runners generally have aches and pains in the legs, and that if Stephen was going to be a track runner he would have to accept the pain. Dr. Ricca testified that he asked Stephen if he was having any joint pain, and Stephen indicated achiness in both knees. The doctor acknowledged that he did not examine Stephen's legs or knees, attributing the complaint of pain to Stephen's running:
Q. You have been criticized for not examining Stephen's legs that day when you elicited this response to your question about joint pain.
A. Yes.
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