Fosgate v. Corona
| Decision Date | 18 December 1974 |
| Citation | 66 N.J. 268,330 A.2d 355 |
| Parties | Mary FOSGATE et al., Plaintiffs-Appellants, v. Anthony G. CORONA, Defendant-Respondent. |
| Court | New Jersey Supreme Court |
Charles J. Farley, Jr., Orange, for plaintiffs-appellants (Farley & Farley, Orange, attorneys).
Paul B. Thompson, Jersey City, for defendant-respondent (Frank L. Brunetti, Jersey City, on the brief, Lamb, Hutchinson, Thompson & Chappell, Jersey City, attorneys).
The opinion of the Court was delivered by
This is a malpractice case in which certification was granted, 65 N.J. 283, 321 A.2d 244 (1974), to consider plaintiffs' contention that the damages awarded by the jury were patently inadequate and were the result of an erroneous charge by the trial court on the issue of aggravation of a preexisting disease.
The charge of malpractice stems from plaintiff Mary Fosgate having consulted defendant Dr. Anthony G. Corona in the early part of 1963. Her complaints included persistent cough, tired feeling and loss of appetite. She contends that she was suffering from tuberculosis at the time and that defendant failed to diagnose it and, instead, treated her conservatively with cough medicines and vitamins despite the persistence of the same complaints over a six-year period during which there were more than 120 visits to defendant's office.
A few days after her last visit to defendant, which was on July 29, 1969, Mary was involved in a motor vehicle accident. She was taken to the hospital for treatment of injuries and it was found that she was suffering from pulmonary tuberculosis, later diagnosed as far advanced. She was immediately transferred to the Essex County Sanatorium where she was confined under treatment for about one year. Her medical bills for such confinement and treatment were about $13,000.
Prior to the August 1969 automobile accident, Mary had been living in the same household with her son Frank, his wife Patricia and their two children, Marilyn and Wendy. Consequently, all of the family underwent testing for tuberculosis and it was ascertained that Patricia and the two children Marilyn and Wendy had tuberculosis infections. They have been treated and cured of the infection. However they will be required to undergo annual examinations to make certain there is no reactivation. It was the treating doctor's opinion that the other members of the family had contracted the infection from Mary.
The jury returned a verdict of $10,000 damages to Mary, $1,000 to Patricia, 'no cause' as to Frank individually, and $3,000 to Frank as Guardian Ad Litem for Marilyn and $1,500 to Frank as Guardian Ad Litem for Wendy. Following entry of judgment, plaintiffs moved for a new trial on the issue of damages claiming that the awards were patently and grossly inadequate. The trial court agreed that the awards were 'low' but denied the motion on the ground that the jury obviously was 'not satisfied that the defendant was liable or that the defendant proximately caused all of the damages here.'
Plaintiffs appealed to the Appellate Division asserting that the jury verdict was inadequate. A new trial on the issue of damages was requested 'as to all the plaintiffs.'
In plaintiffs' appellate brief the inadequacy of the verdict in favor of Mary was attributed to the refusal of the trial court to charge the jury as requested by this plaintiff that:
If you find that the defendant physician was negligent and his negligence resulted in the plaintiff's previous condition being worse than it would have been but for his negligence, the plaintiff may recover for her entire existing condition. Dalton v. Gesser, 72 N.J.Super. 100, 111 (178 A.2d 64) (App.Div.1962); Hahn v. Delaware L & W Railroad Company, 92 N.J.L. 277 (105 A. 459), aff'd 93 N.J.L. 463 (108 A. 357) (E & A 1919); Restatement of Torts Sec. 461.
A defendant is liable to a plaintiff for the entirety of an inseparable specific disability such as the plaintiff's TB which is the result of the concurrent effect of both the plaintiff's prior condition and the defendant's negligence superimposed upon it. Dalton v. Gesser, 72 N.J.Super. 100, 115 (178 A.2d 64) (App.Div.1962).
Instead the court charged the jury:
If a plaintiff is awarded a verdict for a pre-existing illness or condition, he is entitled to an award of damages only if the jury finds that his illness or condition was aggravated or made more severe as a result of the alleged malpractice and only to the extent of such aggravation or acceleration.
In figuring your award for damages or medical and hospital expenses, pain, suffering, disability and impairment, you may allow the plaintiffs such damages as will fairly and reasonably compensate them for damages sustained as a result of the malpractice; including any additional medical and hospital expenses and any increased pain, suffering, disability and impairment because of aggravation of the pre-existing illness or injury.
You may not award damages in this law suit for any medical and hospital expenses, pain, suffering, disability or impairment attributable solely to a pre-existing illness or condition.
If such pre-existing illness or condition did not itself involve pain, suffering, disability or impairment, but combined with the damage sustained as a result of the malpractice to produce pain, suffering, disability or impairment, you may award damages to the full extent of such pain, suffering, disability and impairment.
It was argued that the charge as given erroneously required the jury to apportion Mary's damages and that this error in the principal case also tainted the verdicts for the other plaintiffs.
The Appellate Division confined its consideration of the appeal to the requested charge and the charge as given in regard to the extent of Mary's recoverable damages. It found the requested charge to be improper and the charge as given correct. Therefore, it affirmed the judgment in...
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...Tort Law, 51 Ohio St. L.J. 1127, 1127-28 (1990).2 We similarly modified the usual doctrine of aggravation. Fosgate v. Corona, 66 N.J. 268, 330 A.2d 355 (1974) (holding that physician who asserts defense of aggravation of preexisting condition bears burden of demonstrating proper segregation......
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