Fischer v. Canario

CourtUnited States State Supreme Court (New Jersey)
Citation670 A.2d 516,143 N.J. 235
PartiesJerry FISCHER, Administrator and Administrator ad Prosequendum of the Estate of Rachel Fischer, deceased, Plaintiff-Respondent and Cross-Appellant, v. Arthur T. CANARIO, M.D., Defendant-Appellant and Cross-Respondent, and Norman Magid, M.D. and John Does 1 through 5, Defendants.
Decision Date30 January 1996

Hugh Francis, Morristown, argued the cause for appellant and cross-respondent (Francis & Berry, attorneys; Peter A. Olsen, on the briefs).

Thomas R. Chesson, Morristown, argued the cause for respondent and cross-appellant (Porzio, Bromberg & Newman, attorneys; William A. Krais, on the briefs).

The opinion of the Court was delivered by


The primary issue in this appeal is the scope of the prospective application of the damage-apportionment rule announced by the Court in Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398 (1990). Also at issue is whether the trial court erred in refusing to give the jury an "ultimate outcome" charge.


On October 11, 1984, Rachel Fischer, then sixty-one years old, went to the emergency room of Newark Beth Israel Medical Center (Beth Israel) as a result of a fall. Dr. Arthur T. Canario, an orthopedic surgeon, examined an x-ray of her shoulder, diagnosed her injury as a fracture, applied a sling, administered medication for her pain, and told her to go home and make an appointment for a follow-up visit. However, Mrs. Fischer requested that she be admitted for the night, because she would be alone at her residence. Dr. Canario reluctantly admitted her and was listed as her attending physician, although he did not treat her after her admission. Mrs. Fischer left the hospital the next morning.

Pursuant to hospital procedure for admitted patients, an x-ray was taken of Mrs. Fischer's chest. Based on that x-ray, Dr. Norman Magid, a radiologist, prepared a report that indicated a probable tumor. Some time thereafter, that report was attached to the x-ray and placed in Mrs. Fischer's hospital chart. Dr. Canario was not aware of that report. Because Dr. Canario was listed as her attending physician, he was required to sign her chart, which he did approximately one week after Mrs. Fischer had been discharged from the hospital. Although he looked through the records attached to Mrs. Fischer's chart, he saw neither the x-ray nor the radiological report. According to Dr. Canario, they were not attached to her chart at that time because "it took a long time for x-ray reports to come back to the chart. It'd be highly unlikely it would be back in a week." Thereafter, Dr. Canario examined her bone fracture several times, but said nothing about her probable tumor, of which he was unaware.

In June 1987, Mrs. Fischer was diagnosed as suffering from metastatic lung cancer. After undergoing radiation therapy and two cycles of chemotherapy, and suffering from, among other things, brain seizures, she died on February 16, 1988.

In April 1989, Jerry Fischer, Mrs. Fischer's son and the administrator and administrator ad prosequendum of Mrs. Fischer's estate, sued Dr. Canario and Dr. Magid for medical malpractice. The trial commenced on March 18, 1993. At trial, Jerry Fischer testified about his mother's extensive physical suffering stemming from the cancer, including her severe nausea, loss of appetite, and general weakness. He also described the severe emotional repercussions of her chemotherapy treatment. As she lost her hair, Mrs. Fischer, a Holocaust survivor, began to relive her concentration camp experiences. Scars and bumps, hidden for years by her hair, were revealed and served as constant reminders of her World War II experiences.

Frank Tinari, an economist, testified for the plaintiff that Mrs. Fischer's children and grandchildren sustained a loss of over $100,000 by being deprived of Fischer's advice, guidance, and counsel during the period between her actual death and her statistical date of death (2006). He further testified that the children and grandchildren sustained a loss of over $44,000 due to loss of companionship. Based on testimony of Fischer's son and daughter, Tinari stated that the children had also lost the opportunity to receive gifts totalling approximately $30,000. The parties stipulated to medical expenses of $45,000 and funeral expenses of $5,000.

Plaintiff presented expert testimony that the prevailing standard of reasonable medical care required a patient's attending physician, prior to signing a patient's chart, to know the tests performed on his or her patient and the results of those tests. There was testimony that Dr. Canario's failure to review the chest x-ray and inform Mrs. Fischer of the probable tumor was a "substantial factor in causing [her] to lose her 50 percent chance of a cure which she had as of October 11, 1984." The parties stipulated, and the trial court informed the jury, that if the cancer had been diagnosed in October 1984, Mrs. Fischer would have had a fifty percent chance of survival. The trial court, however, rejected plaintiff's request to include an ultimate outcome charge in the instructions to the jury.

The jury found that Dr. Canario, but not Dr. Magid, had been negligent, and awarded plaintiff a total of $134,231 in damages, $96,687 on the decedent's survivorship claim and $37,544 for the wrongful-death claim. Initially, the trial court determined that the damage-apportionment rule announced in Scafidi, supra, applied to this case and reduced the verdict from $134,231 to $67,115. After the trial, plaintiff moved for an additur, or alternatively for a new trial. The trial court denied both motions. However, in response to those post-trial motions the trial court reversed its initial ruling on the application of Scafidi. Although the court believed that the Scafidi rule should apply because "it was a rule of equity," it concluded that based on the Appellate Division's interpretation of Scafidi 's prospectivity in Roses v. Feldman, 257 N.J.Super. 214, 608 A.2d 383 (1992), Scafidi did not apply. The court therefore reinstated the $134,231 verdict.

Both parties appealed to the Appellate Division. Dr. Canario argued that a judgment notwithstanding the verdict should have been entered in his favor because the evidence failed to establish that he had a duty to inform Mrs. Fischer about her chest x-ray, and further, that if the verdict were sustained it should be reduced because the Scafidi damage-apportionment rule was applicable. Plaintiff cross-appealed from the judgment contending that the trial court's denial of his request for an ultimate outcome charge was prejudicial error.

In considering the Scafidi issue, the Appellate Division observed that in this case the negligence (October 1984), the accrual of the wrongful-death cause of action (February 1988), and the filing of the complaint (April 1989) occurred prior to the Scafidi decision (May 24, 1990). The trial, however, commenced in March 1993, and judgment was entered in May 1993. The Appellate Division "infer[red] that the prospective application of [Scafidi 's] damage rule was intended to apply only to causes of action which accrued after the date the Supreme Court issued its Scafidi opinion." 277 N.J.Super. 302, 310, 649 A.2d 875 (1994). The court emphasized that it had been "attempting only to interpret the prospectivity rule announced in Scafidi. Because the Supreme Court declared that Scafidi should be applied only prospectively, we do not consider ourselves free to decide on policy grounds whether or not it should be applicable to a medical malpractice case like the present one." Id. at 310 n. 1, 649 A.2d 875. Therefore, the Appellate Division concluded that the trial court properly declined to apply Scafidi and the verdict remained $134,231. The Appellate Division rejected plaintiff's ultimate outcome charge argument.

We granted defendant's petition for certification, 142 N.J. 449, 663 A.2d 1357 (1995), to review the Appellate Division's prospective application of the damage-apportionment rule announced in Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398 (1995). Subsequently, we granted plaintiff's cross-petition, 142 N.J. 516, 665 A.2d 1109 (1995), to review whether the trial court erred in not providing an ultimate outcome charge to the jury.


In Scafidi, supra, we reaffirmed the standard that we initially announced in Evers v. Dollinger, 95 N.J. 399, 471 A.2d 405 (1984). We held that when evidence demonstrates within a reasonable degree of medical probability that negligent medical treatment increased the risk of harm posed to a patient by a preexisting condition, a jury question is raised concerning whether the increased risk was a substantial factor in producing the ultimate result. Scafidi, supra, 119 N.J. at 108, 574 A.2d 398. The Court further held that "[t]o the extent that a plaintiff's ultimate harm may have occurred solely by virtue of a preexisting condition, without regard to a tortfeasor's intervening negligence, the defendant's liability for damages should be adjusted to reflect the likelihood of that outcome." Id. at 112-13, 574 A.2d 398. Accordingly, the jury must determine that likelihood on a "percentage basis," and the trial court must "mold the verdict to limit defendant's liability to the value of the lost chance for recovery attributable to defendant's negligence." Id. at 114, 574 A.2d 398. Finally, the Court concluded:

In view of the significant change in the law represented by our holding concerning the measure of damages, the effect and application of that holding, except with respect to this case and Olah v. Slobodian, 119 N.J. 119, 574 A.2d 411 (1990), also decided today, shall be prospective only. See Weinberg v. Dinger, 106 N.J. 469, 524 A.2d 366 (1987).


However, we did not interpret the scope of the prospective application of the Scafidi rule. We turn to that interpretation now.

As expected, the parties take opposing positions as...

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