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Kern v. Kogan

Decided: January 17, 1967.

HAROLD KERN, AS GENERAL ADMINISTRATOR AND AS ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF KATHLEEN KERN, HAROLD KERN AND LOUISE KERN, PLAINTIFFS,
v.
EDGAR KOGAN, A. FESSAS, I. HAROLD SMELSON, AND ST. ELIZABETH'S HOSPITAL, A NEW JERSEY CORPORATION, DEFENDANTS



Feller, J.s.c.

Feller

This matter is before the court as a result of an action brought by Harold Kern, as general administrator and as administrator ad prosequendum of the estate of Kathleen Kern; Harold Kern and Louise Kern, individually, against Drs. Edgar Kogan, A. Fessas and I. Harold Smelson, and St. Elizabeth's Hospital.

The first count of the complaint alleges that defendants are duly licensed physicians of New Jersey, and that on or about February 26, 1964 plaintiff placed his daughter Kathleen Kern, age 13, under the care of defendant Dr. Fessas. Further, that on March 2, 1964 defendant examined and undertook to treat Kathleen up until March 8, 1964, on which date he recommended defendant Dr. Kogan to plaintiff for consultation and treatment of Kathleen, now deceased. The first count further alleges that Dr. Kogan undertook to treat decedent at St. Elizabeth's Hospital on March 9, 1964, and thereafter defendant Dr. Smelson, sharing a common duty with the other defendants, undertook to treat her. The first count also alleges that since March 9, 1964 Dr. Kogan was the physician in charge of treating Kathleen and that the other defendant physicians participated in the treatments which were administered. Further, that Drs. Kogan and Smelson negligently failed to exercise that degree of care commonly exercised by like physicians and failed to treat Kathleen properly. Further, that as a result of that negligence Kathleen suffered severe pain and agony up to and including March 18, 1964, as a result of which she died. Further, that defendant St. Elizabeth's Hospital was negligent during the period of March 9 to 19, 1964 by permitting Dr. Kogan to perform acts which were unreasonable on their face, and that the hospital, through its servants, agents or employees, failed to heed the laboratory findings and the physical and outward appearance of Kathleen during the course of the treatment, and failed to

take action to prevent the deterioration of decedent. Kathleen leaves surviving her, her mother and father, and this action is instituted for their benefit within two years from the date of her death. Finally, judgment is demanded against defendants.

The second count repeats all of the allegations of the first, and alleges that Kathleen suffered great pain, agony, discomfort and deterioration as a result of the negligence. Judgment is similarly demanded.

The third count of the complaint repeats all of the allegations of the first and further avers that Dr. Kogan fraudulently and deceitfully assured plaintiff that his prognosis was reasonably accurate, and concealed further facts relating to Kathleen's condition. Judgment was therefore demanded against Dr. Kogan generally, together with judgment for punitive damages.

The fourth count repeats all of the allegations of the third, and further alleges that the conscious conduct of Dr. Kogan during the course of his treatment was such that he recklessly disregarded and was completely indifferent to and unconcerned for the probable consequence of his negligence, and that his indifference was so complete that it, in essence, was willful or wanton misconduct, wherefore punitive damages were demanded against Dr. Kogan.

The fifth count alleges that plaintiffs were the natural parents of decedent; that all of the allegations of the first and second counts are repeated, and that as a result of the aforementioned negligence, great emotional disturbances and mental anguish were inflicted upon plaintiffs. Finally, they demanded judgment generally on the fifth count.

The sixth count repeats all of the allegations of the fifth, and of the third and fourth counts, and finally demands judgment for punitive damages against Dr. Kogan.

The motion presently before the court, as a result of the aforedescribed proceedings, is one to dismiss the third, fourth, fifth and sixth counts of plaintiffs' complaint for failure to state a cause of action. An attached affidavit of Dr. Kogan is

relied upon in support of this motion by defendant Dr. Kogan. The affidavit states that said defendant undertook to treat Kathleen Kern after having the said patient referred to him by defendant Dr. Fessas. Further, that said Dr. Kogan, in so treating decedent, brought to bear that degree of care, knowledge and skill that is ordinarily possessed by those of the medical profession practicing in the field of internal medicine. Further, that Dr. Kogan arranged to have decedent hospitalized at the St. Elizabeth Hospital with an admitting diagnosis of anorexia nervosa and ordered certain laboratory tests to be performed, among which was a urine analysis for sugar. Dr. Kogan further avers in his affidavit that a proper diagnosis depends upon facts available to a physician and that in this case, one very significant fact did not come to his attention, i.e., the presence of sugar in the patient's urine. Further, that the progress notes which are part of the hospital records indicate that on March 10, 1964 the information then in Dr. Kogan's possession was that the urine sugar of decedent was negative. Further, that this report was erroneous and that Dr. Kogan labored and proceeded under the belief that the urine analysis was negative. Further, that the unfortunate situation which gave rise to the alleged cause of action came about as a result of human error. Dr. Kogan further avers that during the time which he treated decedent, he was fully cognizant of his responsibilities as a physician and exercised his best judgment and skill based upon the information then at hand, and was at all times considerate, compassionate, understanding and solicitous of the welfare of his patient. Finally, Dr. Kogan avers that his conduct in the treatment of decedent was completely devoid of any suggestion that could give rise to malicious motivation, and that he is therefore not subject to liability for punitive damages.

As stated above, Dr. Kogan has moved before this court to dismiss the third, fourth, fifth and sixth counts of the complaint, for failure to state a cause of action. It is this motion which will be dealt with in the course of this opinion. It is Dr. Kogan's position that arguendo, even if liability exists

with respect to the main case, punitive damages cannot be awarded as a matter of law in a medical malpractice case where death intervenes, for the reason that such death gives rise only to a cause of action under the Wrongful Death Act, which by its terms precludes awarding of punitive damages. Dr. Kogan further alleges that there can be no recovery under the fifth and sixth counts of the complaint for emotional and mental anguish suffered by said parents.

Under the common law rule, personal actions did not survive to the personal representatives of a deceased person, but abated with the latter's death pending trial. The rigors of this harsh and technical rule were relaxed and ameliorated by the provisions of the Death Act, which, under the title of "An act to provide for the recovery of damages in cases where the death of a person is caused by the wrongful act, neglect or default" of another, was enacted in this State on March 3, 1848 (P.L. 1848, p. 151, Rev. 1877, p. 294). See Cammarata v. Public Service Co-Ordinated Transport, 124 N.J.L. 38 (E. & A. 1940); Prudential Insurance Co. of America v. Laval, 131 N.J. Eq. 23 (Ch. 1942). The Death Act then appeared in the Revised Statutes of 1937, under 2:47-1 et seq. and is encompassed today in N.J.S. 2A:31-1 et seq. Because it was designed to abolish the harsh and technical rule of the common law, the act was given a liberal interpretation. Cibulla v. Pennsylvania-Reading Seashore Lines, 25 N.J. Misc. 98, 50 A. 2 d 461 (C.P. 1946).

The Wrongful Death Act states:

The Wrongful Death Act states:

"When the death of a person is caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, and although the death was caused under circumstances amounting in law to a crime." N.J.S. 2A:31-1 (Emphasis added)

It should be noted that the controlling feature of the original act in 1848 (Rev. 1877, p. 294) was that damages were made recoverable for causing death as a compensation for the pecuniary injury sustained by the designated beneficiaries by reason of the death. See Cooper v. Shore Electric Co., 63 N.J.L. 558 (E. & A. 1899). It can therefore be seen that a cause of action for the death of another did not exist at common law, Giardini v. McAdoo, 93 N.J.L. 138 (E. & A. 1919); and that in the absence of a statutory provision, therefore, an action cannot be maintained for the wrongful death of another. Myers v. Holborn, 58 N.J.L. 193 (E. & A. 1895). The right to recover for a wrongful death, being a creature not of the common law, but of the statute (Death Act, supra), confers that right on the personal representatives of the deceased, for the sole benefit of the persons designated in the act. In such action, the quantum of damages recoverable is to be admeasured according to the said persons' pecuniary loss resulting from his death. See Cooper v. Shore Electric Co., supra; McKeering v. Pennsylvania Railroad Co., 65 N.J.L. 57 (Sup. Ct. 1900); Pisano v. B.M. & J.F. Shanley Co., 66 N.J.L. 1 (Sup. Ct. 1901); Gottlieb v. North Jersey Street Railway Co., 72 N.J.L. 480 (E. & A. 1906); Brown v. Honiss, 74 N.J.L. 501 (E. & A. 1907); Cetofonte v. Camden Coke Co., 78 N.J.L. 662 (E. & A. 1910); and Manns v. A.E. Sanford Co., 82 N.J.L. 124 (Sup. Ct. 1911).

It should finally be noted that N.J.S. 2A:31-4 sets forth the fact that the amount recovered under the Death Act shall be for the exclusive benefit of the persons entitled to take any intestate personal property of the decedent, and N.J.S. 2A:31-5 expresses the legislative intent to have the jury give such damages as they shall deem fair and just, with reference to the pecuniary injuries resulting from the death. Having established the above, by way of background, this court will now proceed to dispose of the defendant's motion to dismiss the third, fourth, fifth and sixth counts of the complaint in numerical order.

I

The third count of the complaint, which is the first count which defendant seeks to have ...


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