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Shuman v. National Casualty Co.

Decided: August 2, 1963.

BERNARD J. SHUMAN, M.D., PLAINTIFF,
v.
NATIONAL CASUALTY CO., A CORPORATION OF THE STATE OF MICHIGAN AUTHORIZED TO DO BUSINESS IN NEW JERSEY, DEFENDANT



On motion for summary judgment.

Naame, J.c.c. (temporarily assigned).

Naame

This is an action by plaintiff Dr. Bernard J. Shuman, a former practicing pediatrician, to recover indemnity payments under part II of an extended professional disability policy (No. X3310863) which purports to insure the plaintiff against total disability for the period not to exceed 60 months, provided the insured "shall be wholly and continuously disabled from engaging in any gainful occupation for which the Insured is reasonably fitted or qualified and under the regular care and attendance of a legally qualified physician or surgeon, other than himself * * *." (Emphasis added)

Plaintiff, who is now 43 years old, has a New Jersey medical license to practice "any branch of medicine and/or surgery, and any method of treatment of human ailment, disease, pain, injury, deformity, mental or physical condition * * *." N.J.S.A. 45:9-5.1 and 45:9-15. Plaintiff elected to specialize in pediatrics and continued that practice until December 6, 1959.

On December 6, 1959 plaintiff was making a call or driving to some place when he experienced a tightness or uncomfortable feeling in his chest. He ignored the pain but it persisted; he became alarmed and stopped at the office of Dr. Joseph A. Linsk, a hematologist in Atlantic City. Dr. Linsk examined plaintiff, took an electrocardiogram and conducted laboratory and blood tests.

It was discovered later that plaintiff had suffered a coronary occlusion, and he was confined to bed for some time -- three or four weeks. Other tests and treatment followed, and plaintiff from the onset of the aforesaid heart attack began taking dicumerol, an anti-blood coagulant, and was still consuming dicumerol three times a day as of July 7, 1962.

After plaintiff was allowed to leave his bed he experienced very marked weakness for several weeks, and apparently did little if any work thereafter in his former occupation as a pediatrist. Furthermore, it appears from the record that plaintiff did nothing productive or remunerative until he commenced a residency in psychiatry at the Philadelphia Psychiatric Hospital in July 1960.

Plaintiff has had no symptoms following the alleged onset of the heart condition on December 6, 1959, nor has he been under the regular care and attendance of a physician or surgeon for the past year or more.

Plaintiff, after sustaining the above heart attack, received monthly sickness indemnity payments from defendant under policy No. P310863 for a period of 24 months, until December 11, 1961, the terminal date, at the rate of $300 a month, a total of $7,200. However, defendant refused to continue monthly sickness indemnity payments (for purported "total disability") under part II of the extended professional disability policy (No. X3310863) beyond December 11, 1961, the terminal date of policy No. P310863 as aforesaid.

The reason advanced by defendant for the refusal -- and this is the principal if not sole issue in this matter -- is that plaintiff is now and has been since July 1960 engaged in a gainful occupation for which he is reasonably fitted or qualified, which activity allegedly disqualifies him from receiving the aforesaid indemnity payments under the extended professional disability policy.

The aforesaid allegedly gainful occupation originated or was initiated when plaintiff began a residency at the Philadelphia Psychiatric Hospital, which was completed there by July 1, 1962 but which continued at the Philadelphia Guidance

Center. The residency at the latter institution will terminate in June 1964. This residency carried with it a special trainee stipend from the afore-mentioned institutions of $12,000 a year, which was paid by the National Institute of Mental Health, hereinafter designated the Institute. Plaintiff has received $12,000 a year during the past three years. These stipends are given to the aforesaid institutions by the Institute under a program of grants to support psychiatric training programs for general practitioners and other physicians in practice, one of the purposes ...


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