Dunn v. PraissDunn v. Praiss
*185 Plaintiff has appealed from certain trial rulings, and defendants have cross-appealed from the judgment entered in this medical malpractice action. Notwithstanding plaintiff having filed the initial appeal, and since it is our ruling on the cross-appeal that will govern the issues that need to be decided in plaintiff‘s appeal, we will first consider defendant‘s cross-appeal attacking the judgment.
Plaintiff, Linda B. Dunn, individually and as the administratrix ad prosequendum of the estate of her late husband, Carey Dunn, commenced this medical malpractice action against Donald E. Praiss, M.D. and Joel E. Marmar, M.D., both urologists practicing as part of defendant South Jersey Urologic Associates. Plaintiff alleged that the defendant physicians were negligent in failing to diagnose testicular cancer in her husband at a time when there was a substantial probability that he would have survived after treatment. Additionally, she sued Martha Brumbaugh, M.D., a primary care physician employed by defendant Health Care Plan of New Jersey, a health maintenance organization (HMO) which retained South Jersey Urologic Associates to provide urological services to its plan members. South Jersey Urologic Associates is not paid on a fee for service basis. Rather, it receives a per capita fee based upon the total number of subscribers to the HMO. Although some services were provided in South Jersey Urologic Associates’ own offices, urologic services were generally provided to the HMO subscribers at the HMO premises.
Both a former doctor who had treated decedent and another doctor who was one of the South Jersey Urologic Associates partners also had been named as defendants, but they were voluntarily dismissed prior to trial. All claims against Dr. Praiss were dismissed under
Plaintiff had originally claimed that the HMO was liable both on theories of negligence and for a contractual breach, and that Dr. Brumbaugh was liable on a contractual breach theory. Since as hereafter explained, we have determined that the HMO is vicariously responsible for the actions of Dr. Marmar, we need not reach plaintiff‘s contractual theories against the HMO and Dr. Brumbaugh.
After a three week trial, the jury returned a verdict in favor of plaintiff against Dr. Marmar and South Jersey Urologic Associates in the amount of $2,904,240.54. The trial judge denied their motion for a new trial. We here affirm the liability judgment, but are constrained to set aside portions of the judgment for damages because of trial errors which may have so confused the jury that various elements of damages determined by the jury cannot be reconstructed with any substantial certainty.
I — Factual Background
In May 1982 Carey Dunn worked as a rigger in the Navy Yard in Philadelphia. He had both pain and swelling caused by an inflammation in the epididymis, the tissue surrounding his
There is apparently a lucent or avascular region on the right side of the scrotum, which might suggest an avascular mass be it a hydrocele or a solid mass. The study could not distinguish between the hydrocele and the solid mass.
While Dr. Praiss did not then order tests to determine the composition of the “mass” or whether it was cancerous, he did schedule a return appointment for decedent for February 22, 1983.
Decedent returned to the HMO office and was seen by Dr. Marmar, another partner of South Jersey Urologic Associates, who also saw patients at the HMO offices on a weekly basis. Dr. Marmar ordered no follow-up tests to determine the content of the mass or whether it was cancerous. He was aware, however, that decedent had had testicular problems since May 1982, but after the initial improvement the present condition had existed for approximately two months. Although there
For the next several months although the hydrocele had become firmer, decedent had no localized pain and explained to his wife that Dr. Marmar had told decedent that the swelling was a hydrocele and that “it could stay like that for a year.” Decedent‘s wife understood Dr. Marmar to have told decedent to return only if he had pain.
In October 1983 decedent began experiencing a full feeling in his chest. In November he returned to the HMO and was seen by Dr. Brumbaugh. On November 28, 1983, she examined him and ordered medication and various tests including an ultrasound of decedent‘s gall bladder and liver. The ultrasound indicated cancer which had spread to the liver. Among various other consultations was a urological reexamination by a third partner of South Jersey Urologic Associates who found that the right testicle was irregular, the same finding that appeared in one of Dr. Praiss’ notes of February 1983, a note which Dr. Marmar had seen when he examined decedent on February 22, 1983.
Decedent was then referred to a doctor outside of the HMO at Indiana University. There he was treated with experimental chemotherapy by Lawrence Einhorn, M.D., a world-famous specialist in testicular cancer. Upon decedent‘s return, he continued treatment with the local oncologist in conjunction with Dr. Einhorn.
As Dr. Einhorn explained in December of 1983, when the testicular cancer diagnosis was finally made, the cancer had metastasized to the liver producing nausea and pain. Almost all of the cancer was killed with chemotherapy, but it was so advanced at the time of the treatment that decedent‘s life could not be saved. Dr. Einhorn testified that if the diagnosis had been made at any time between February 1983 through September 1983 it was virtually certain that the cancer could have been conquered and decedent‘s life saved. Decedent died on April 30, 1985 at the age of 38, leaving a widow and two children, ages 17 and 12. All of the treating doctors as well as defendant‘s expert agreed that decedent died of metastatic testicular cancer. After years of discovery and preparation in the case through the final pretrial conference when defendant suddenly
II — Limitation of Defendant‘s Causation Proofs
The sole dissenting voice on the issue of causation was defendant‘s new attorney, substituted approximately one month before the final but often-adjourned trial date. Defendants contend that they were then unduly hampered in the preparation of their case when they were denied permission to present a report of an oncology expert whom they proposed to present at trial. He allegedly would claim that decedent died not of a metastasized testicular cancer, but rather from a cancer which had originated elsewhere in his body.2 No certification was presented from the proposed witness, but the attorney described what he expected the witness to say. Defendants also sought to obtain tissue blocks taken from the testicle that had been removed (they already had tissue slides) to have them examined by their new expert. The civil presiding judge denied defendant‘s motion to reopen discovery, to permit defendant to produce an expert oncologist‘s report, to add an oncologist expert to the proposed witnesses and to obtain the tissue blocks for examination. Defendants renewed their motion before the trial judge and it was again denied, as was their motion for leave to appeal to the Appellate Division. After the trial, defendants’ motion for a new trial was based upon the same
Defendants’ change in counsel certainly was not a basis to have the trial delayed so that his new legal or medical theories could be explored after four and one-half years of discovery. But if there was a substantial basis in fact for the new attorney‘s application, the court should not be so controlled by calendar problems that justice might be sacrificed. In a case that probably was going to return a seven figure judgment if the liability were proven, more than a cursory analysis was needed. Here both judges who considered the issue explored the problem in depth. Indeed, both plaintiff‘s and defendants’ witnesses, as well as the independent treating physicians, including the oncologists retained by the HMO, supported plaintiff‘s theory of testicular cancer. We note the following from
On viewing of the judges’ decisions to deny defendants’ motions both at the time they were made and after the evidence was produced at trial leads us to the inescapable conclusion that the judges were correct. It was not error for them to have denied this last minute discovery, nor was it error not to have rejected the jury‘s decision that decedent had died of a metastasized testicular cancer.
We further reject defendants’ argument that had the last minute oncologist report and witness been accepted, defendants would have been able to show an alternative source of the cancer and thus reduce the “lost chance” recovery factor. See Scafidi v. Seiler, 119 N.J. 93, 97, 113-114, 574 A.2d 398 (1990). Justice Stein, writing for the Court in Scafidi stated:
It should be a self-evident principle of tort law that valuation of allowable damages “is animated by a premise similar to that underlying causation: that a tortfeasor should be charged only with the value of the interest he destroyed.” King, Causation and Valuation, supra, 90 Yale L.J. [1353] at 1356 [(1981)]. To the extent that a plaintiff‘s ultimate harm may have occurred solely by virtue of a preexistent 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.
The liability judgment against Dr. Marmar and South Jersey Urologic Associates is unimpeachable on this record. It is therefore affirmed.
III — HMO‘s Responsibility
Plaintiff has requested that we overturn the trial judge‘s determination to dismiss plaintiff‘s claims against the HMO. Plaintiff has couched her argument in terms of a contractual duty based upon the promotional literature. We need not analyze the contractual theory advanced by plaintiff, since it is apparent to us that Health Care Plan of New Jersey is responsible for Dr. Marmar‘s actions on theories of respondeat superior or agency. Plaintiff contended that we should examine the contractual responsibility of the HMO to have seen to it that decedent had been given the HCG blood test; that it should have routinely routed the urologist‘s reports to Dr. Brumbaugh so that she might have noticed that standard tests had not been performed; and that decedent had not been called back for a follow up visit soon after Dr. Marmar‘s examination.
However in his treatment of decedent, Dr. Marmar was not acting as an independent contractor for the HMO. Some of the chief indications of the agency relationship were as follows. Neither he nor his group was paid on a fee-for-service basis; rather they were paid on a per capita basis, based upon the number of subscribers to the HMO. They were not free to accept or reject a particular patient. Additional referrals were
IV — Economic Loss
Defendants claim that the damage verdict was tainted in several respects. On plaintiff‘s wrongful death claim the jury returned a verdict of $1,017,000. On the survival action, the jury awarded the estate $807,290 for decedent‘s pain and suffering, and awarded $588,042 to plaintiff, as decedent‘s widow on her per quod claim for the 16 months’ loss of consortium.
We first examine the wrongful death damages. Plaintiff‘s expert made a standard presentation for the computation of wrongful death damages. During his testimony he wrote his assumptions and conclusions on a series of four charts which aided his testimony and facilitated both cross-examination and summation. The defendants’ counsel both argued that the charts were not evidential. The urologists’ counsel stated that the information was inaccurate and that the calculations “should not be submitted to the jury and are not evidence. The jury will recall his testimony as to what he said and what factors he did or did not include.” The HMO‘s attorney stated that the charts were merely a summary of the expert‘s written report, and clearly argued to the judge that the jury had the opportunity to listen to the expert‘s testimony and view what the expert had written on the charts. He said:
[B]ut this is not evidence.... [T]hese writings should [not] be given any more credence than any other testimony in this case. Because if we‘re going to allow that, I think every witness that comes in here can write their opinions on the board and we can mark those things and we can have them go in....
Inexplicably, over defendants’ objection, the court permitted these charts to be marked not merely for identification, but into evidence, and they accompanied the jury into the jury room.6
- Earnings/benefits loss - Net of T‘s [taxes] of P.M. [personal maintenance] to age — 65 28 X $36,350 5/1/85 - Services — to age 70 $4312 X 32
Tenore v. NuCar Carriers, 67 N.J. 466, 341 A.2d 613 (1975) established the principle that expert testimony concerning the economic effect of a wrongful death was admissible. The expert could testify concerning the discounting of future payments, and could give informed guidelines in assessing the effect of future wage increases, taxes or future inflation or the like. Id. at 473-482, 341 A.2d 613. But the Court in Tenore
This is improper for two reasons. In the first place, the tables assume fact findings not within the peculiar expertise of the economic expert. In the second place, the projection of a gross figure before the jury submitted by an expert tends to exert an undue psychological impact leading to the danger of its uncritical acceptance by the jury in the place of its own function in evaluating the proofs.
In the case before us it is true that the jury was not given “tables” of damages they could return. If they had been given such tables, at least the jury would have had a choice between varying amounts. Here, the jury was given one answer. On the issue of economic loss, rather than a single total amount, the jury was given the figures “28 X $36,350.” This total is $1,017,800, the exact amount returned by the jury. This is the very harm that the Supreme Court warned against in Tenore.
This principle was reiterated in Genovese v. New Jersey Transit Rail Operations, Inc., 234 N.J. Super. 375, 379, 560 A.2d 1272 (App.Div. 1989), certif. denied, 118 N.J. 195, 570 A.2d 960 (1989), where the standard of Tenore was violated by a witness who stated a total wage loss figure. Judge Cohen noted “that the damage verdict of $413,000 was suspiciously near one of the witness‘s bottom line figures of $425,000, and suggests an effect on the determination.” Id. at 379, 560 A.2d 1272. What was merely a suspicion in Genovese is virtually a certainty in the case before us where the verdict returned matched to the dollar the amount in the mistakenly-admitted exhibit.
Defendant contends that the jury did not blindly follow the expert, since they apparently rejected any verdict for the loss of services, counsel, and so forth as permitted by Green v. Bittner, 85 N.J. 1, 4, 424 A.2d 210 (1980). Yet the jury may well have been misled by the wording of the damages interrogatory which asked the jury to state the “economic loss” suffered by the survivors. As we discuss infra, it is difficult for us to
With regard to the economic losses themselves we perceive two errors sufficiently grievous to warrant reversal. First, as noted earlier, the witness was permitted to break down the damages to a simple arithmetical statement and to place this statement before the jury. Second, plaintiff was permitted to mark into evidence the witness’ computation and the jury was permitted to take this into the jury room as an exhibit. These sheets, properly used as an aid to the witness’ testimony, were not proper exhibits. They were neither real evidence nor demonstrative evidence; they were merely a detailed summary of one aspect of plaintiff‘s claim.
Such purported evidence should not be confused with a summary of business records or other material, itself evidential, where the summary is admissible as an exception to the best evidence rule,
Under
a list of the claims made by the parties and of the defenses to such claims, a list of the various items of damage upon which proof was submitted at the trial and a list of the verdicts that may be properly found by the jury.
V — Loss of Consortium Award
We next turn to the jury‘s verdict for the widow‘s survival action judgment for loss of consortium. Plaintiff was awarded $588,042 “for her loss of consortium and services.” Decedent, however, was awarded only $807,290 for his “pain and suffering and other damages ... to the date of his death.” It is highly unusual that a loss of consortium award would be as high as this one, when compared to the decedent‘s physical pain, awareness of impending death, and disability. Defendants would have us explain this loss of consortium award by reference to the judge‘s charge. They claim that the judge failed to inform the jury that loss of consortium was limited to decedent‘s actual lifetime, and the size of the award indicates that the jury awarded plaintiff her damages for decedent‘s expected lifetime. We have searched the charge for some limiting language, and we find none. Therefore, defendants’ suggestion is one explanation of the award.
Another, and we think the more logical explanation may be found in the way the interrogatories to the jury were worded. The first question clearly asked for the damages suffered by decedent to the date of his death. The second question asked for an award that “would reasonably, adequately and fairly compensate the decedent‘s survivors for their economic loss, if any.” As we noted earlier the jury returned the exact amount for the economic aspect of the survivor‘s loss, as testified to by plaintiff‘s expert, and as set forth in the exhibits mistakenly given to the jury. The judge had charged that financial losses could include
not only actual monies which would have been contributed to or earned for the benefit of the survivors, but it also includes the reasonable value of benefits which would have been received in the nature of services, assistance, and care, as well as training, guidance and counsel that the decedent‘s survivors would have received had decedent lived. (emphasis added).
Unfortunately, although it is tempting for us to do so, we cannot determine which portion of the per quod award properly belongs to the widow and which portion really constituted the noneconomic damages to be distributed between the widow and children in the wrongful death action. Furthermore, there is always the possibility that the jury mistakenly awarded the widow lifetime loss of consortium, as suggested by defendants. There already must be a new trial on the wrongful death economic issues for the reasons explained earlier, and we must also remand for a new trial on the widow‘s loss of consortium claim.
This leaves viable only the damages for the decedent‘s own pain, suffering and related damages. We see nothing in the record that would call this award into question, but we also note that the proof of the wife‘s damages and the wrongful death economic and noneconomic losses will require a complete retrial of decedent‘s pain, suffering and other losses. Rather than our directing whether there need be a new trial concerning the decedent‘s survival action damages, we remand this issue to the Law Division so that the judge who will be supervising the trial can determine, after hearing argument of counsel, whether there should be a new trial on all damage issues or merely on the wrongful death damages and the wife‘s loss of consortium. If the parties can agree concerning if and how the original jury‘s award to the widow might be divided between the per
The liability judgment is affirmed; the Health Care Plan of New Jersey is deemed responsible on a principal-agent basis for the acts of Dr. Marmar; the damage judgment for decedent‘s pain, suffering, and related losses is remanded to the Law Division for consideration whether there should be a comprehensive damage trial; the wrongful death and loss of consortium damage judgments are reversed and the matter is remanded to the Law Division for retrial on these latter issues.
Notes
Q. Now, the cancer that was ultimately found in Mr. Dunn was confined to the testicle itself in the scrotum, isn‘t that correct?
A. I‘m not sure what you mean. It started in the right testis, but it had spread to other parts of the body.
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Q. Are there occasions when a patient may have two types of cancer simultaneously?
A. That‘s incredibly rare.
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Q. No sir. I agree with you. But you might want to know whether or not this was a testicular cancer and a lung cancer or a pancreatic cancer or some other type of cancer?
A. Not true at all.
Q. You wouldn‘t do that?
A. Absolutely not. Not with an HCG of 170,000.
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Q. Were you aware that at the Cooper Hospital the patient underwent a study of the gallbladder?
A. Yes. They did not yet have his HCG value back at that time.
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Q. They also did an ultrasound of the liver?
A. That is correct, but, again, before his HCG was back.
There was no objection to the procedure in this case, and we can discern no separate error arising from the jury‘s questions and answers. We commend this topic to the Supreme Court Committee on Civil Practice for further consideration and possible recommendations to the Supreme Court.