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Evers v. Dollinger

*fn1: February 8, 1984.

MERLE EVERS AND RICHARD EVERS, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
KENNETH DOLLINGER, M.D., AND LIVINGSTON OBGYN GROUP, P.C., DEFENDANTS-RESPONDENTS



On certification to the Superior Court. Appellate Division.

For reversal and remandment -- Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For affirmance -- None. The opinion of the Court was delivered by Clifford, J. Handler, J., concurring. Handler, J., concurring in the result.

Clifford

In this medical malpractice case the trial court granted defendants' motion for judgment at the conclusion of plaintiffs' case because there was no proof of any damages proximately resulting from the defendant doctor's negligence. See R. 4:40-1. The Appellate Division affirmed, in an unreported opinion. We granted certification, 91 N.J. 523 (1982), and now reverse.

I

Because the trial court granted a judgment at the conclusion of plaintiff's*fn2 case, we treat plaintiff's proofs as uncontradicted, both as to liability and damages. See R. 4:37-2(b); Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). Those proofs demonstrate that plaintiff first came under the care of defendant, Dr. Kenneth Dollinger, a physician specializing in obstetrics and gynecology, in about 1973. In March 1977 Mrs. Evers made an appointment for an examination by Dr. Dollinger because of her concern over a "very tiny" lump that she had felt in her right breast. Plaintiff told defendant about the lump and the pain associated with it. The doctor did a "complete examination" and told her it revealed "nothing," to "stop worrying and go home and relax." However, during the succeeding seven months plaintiff experienced worsening pain and noticed an increase in the size

of the lump, so that by October 1977 it was about four times as large as it had been in March. In addition she noticed a "little sorelike type of thing" on her breast, with some bleeding in the area.

With mounting apprehension Mrs. Evers sought another appointment with Dr. Dollinger around the middle of October. Because he was unavailable, his partner, Dr. Ladocsi, examined plaintiff. Mrs. Evers told him about the lump and the bleeding sore. Dr. Ladocsi determined that the sore was an abscess, took a culture of it, and advised plaintiff to await the culture results before seeking a biopsy for the lump because the lump might disappear once the abscess had resolved.

Although the culture results proved "negative for infection," Mrs. Evers' fears were not allayed, so she consulted Dr. Angelo DePalo, a physician associated with Memorial Sloan Kettering Cancer Center in New York. When he examined plaintiff on October 26, 1977, Dr. DePalo discovered an infected cyst in the right nipple area as well as a mass above it. He ordered a mammogram, the results of which raised a suspicion of cancer, whereupon plaintiff was admitted to Sloan Kettering where she underwent a right extended mastectomy on October 31, 1977. A 1.5 centimeter cancerous growth was removed. The pathologist's diagnosis was of infiltrating ductal carcinoma of the right breast. Laboratory studies, x-rays and blood tests indicated that the cancer had not yet spread to any distant sites, and all lymph nodes were negative for metastasis.

As of the time of trial in May 1981 Mrs. Evers had taken no medication and had received neither chemotherapy nor radiotherapy, nor had she experienced any recurrence of the cancer. While plaintiff's appeal was pending determination in this Court, however, we were informed, through motion papers (see supra n. 1, at 399) that Dr. DePalo has now determined that plaintiff has experienced "distant spread of cancer from the original breast cancer * * * [,which] had metastasized"; that he found "breast cancer cells * * * in the lung"; that "Mrs. Evers

* * * is faced with a terminal illness" and is "under psychiatric care"; and that she recently underwent surgery.

II

Plaintiff instituted this action in May 1979, charging that as a result of defendant's failure to have made an accurate diagnosis and to have rendered proper treatment, her "ailment and condition became aggravated and worsened and she suffered great pain and mental anguish and will continue to do so" and her "physical and mental health were severely impaired * * *." The specific allegation of malpractice revolves about defendant's failure to follow the March 1977 examination with a subsequent examination. The claim is not that absent the seven months delay in diagnosis the mastectomy would not have been required. Rather, it is that the delay itself caused both physical and emotional injury, as to both of which there was proof or offers of proof; and further that the delay enhanced the risk that the cancer would recur, requiring additional hospital and medical care -- a grave and threatening circumstance that, as we now learn, plaintiff is prepared to prove has come to pass.

In support of these allegations plaintiff established at the trial, through her expert pathologist, Dr. Michael Janis, that the growth removed from Mrs. Evers' breast in October 1977 was malignant and that "for sure" it had been present in the breast in March. His testimony likewise permitted the reasonable inference that the tumor's size increased between the time of Dr. Dollinger's first examination and the subsequent surgery. Further, Dr. Janis concluded that plaintiff was suffering from infiltrating ductal carcinoma, a form of cancer that infiltrates or spreads into the ductal tissue beyond the site of the original tumor.

Finally, in the course of an extended colloquy out of the jury's presence, Dr. Janis explained a significant statistical phenomenon: that of those patients who have the type of breast cancer from which Mrs. Evers suffered, one out of every four will

experience a recurrence of the disease. Whereas it is impossible to forecast which patients will be stricken, the statistical fact is that it will be one in four. This statistical risk of 25% is applicable to patients who had been accurately and promptly diagnosed and treated. Dr. Janis asserted that if there were a seven months delay, as was here the case, there would be "more of a chance" that the patient would fall into the 25% category.

To much the same effect was a report, marked for identification, of plaintiff's examining physician, Dr. Sam Lan. The report was supplied to defense counsel as part of pretrial discovery, R. 4:17-4(e). In addition to establishing defendant's deviation from accepted standards of medical care, Dr. Lan was prepared to testify that

[a]ssuming the presence of a clinically palpable lump as claimed by the patient at her initial office visit, it is my opinion that the chances of a distant spread of the cancer was increased as a result of the delay of 7 months between the time the patient first saw Dr. Dollinger and the time surgery was performed. The extent to which the patient was endangered cannot be assessed from the [medical records and depositions of plaintiff and Drs. Dollinger and Ladosci].

The trial court refused to admit into evidence the material contained in the foregoing proffers of proof because the experts were unable to quantify the increased risk of recurrence of cancer, holding that "it has to be more probable than not or within a reasonable degree of medical probability that, as a proximate result of any malpractice * * * [plaintiff] would fall within the 25 percentile." Faced with this ruling, which made evidence of quantification of the increased risk indispensable to plaintiff's claim of injury, plaintiff's attorney made a proffer that Dr. Lan, who was scheduled to appear the following day, was now prepared to testify that "because of the delay with a reasonable degree of medical probability, Mrs. Evers would fall into the 25 percentile." However, defendant objected to the proffer on the ground that in his report Dr. Lan was unable to determine the magnitude of the risk of recurrence and distant spread of the cancer. The report had concluded only that the delay had "increased" the risk. Ruling that Dr. Lan could not

testify beyond his report, the trial court then granted defendant's motion for judgment. In a conclusion adopted by the Appellate Division, the trial court ruled that although plaintiff's offer of proof on the alleged deviation from accepted medical standards of care would have created a jury question, there was nevertheless "no showing of any damages proximately flowing from that deviation."

We are satisfied that in the circumstances of this case it was error to enter judgment for defendant at the close of plaintiff's proofs. First, there was uncontradicted evidence that the malignant breast tumor actually increased in size because of the delay. Further, the disease had developed beyond the site of the original tumor itself into an infiltrating ductal carcinoma. Although claims for these specific injuries may not have been made in haec verba, they were clearly embraced within the four corners of the complaint and there was no objection to their admission on the ground that they went beyond answers to interrogatories. Hence, those proofs alone demonstrated sufficient physical injury to withstand defendant's motion. Beyond that, plaintiff was prepared to show that she suffered anxiety, emotional anguish and mental distress. These were attributable not solely to her having the cancer but also to the growth of the tumor during the time proper treatment was withheld and from the realization, following the confirmation of her malignancy, that defendant's delay in her treatment had increased the risk that she would again fall victim, perhaps fatally, to the disease.

Finally, it is now clear that on remand plaintiff will be prepared to prove that the seven months delay increased the risk of recurrence and that such increased risk was a substantial factor in bringing about the condition from which plaintiff now suffers, or, put differently, that the harm of which there was but increased risk has now become a reality. Hence, we need not determine whether the unquantified (and unquantifiable) but nevertheless certain increase in the risk, standing alone, is sufficient injury to sustain plaintiff's cause of action.

III

The most patent form of medical injury in this case relates to the growth of the malignant tumor itself. Mrs. Evers testified that she first discovered the lump in her breast in February 1977. Alarmed, she immediately arranged to see Dr. Dollinger. Following her examination by defendant in March 1977 and her discharge with the assurance that the lump was "nothing," she observed that the lump continued to grow to at least four times in size by the following October. As noted, plaintiff's expert also corroborated the fact that the malignancy grew and had become an infiltrating ductal carcinoma when finally surgically removed and identified. This progressive evolution of the malignancy during the period of delay until plaintiff received proper medical attention, occasioned by defendant's earlier failed diagnosis, is a cognizable injury and constituted an actionable element of damages.

In Cloys v. Turbin, 608 S.W. 2d 697 (Tex.Civ.App.1980), the court reversed a summary judgment in favor of defendant in plaintiff's action for medical malpractice. Defendant allegedly had failed to biopsy a mole-like growth on plaintiff's left arm that three months later was diagnosed as malignant melanoma. Plaintiff alleged that defendant's negligence "was a proximate cause of the malignant melanoma remaining, growing, and spreading in her body, of its not being removed at the earliest possible time * * *." Id. at 699. The defendant's expert concluded that plaintiff suffered no compensable damages as a result of defendant's negligence, asserting that, based upon reasonable medical probability, the malignant melanoma did not spread to other parts of plaintiff's body during the three months delay in diagnosis, since lymph nodes in the permanent section were negative. Id. at 700. The court rejected this explanation, stating that

it does not negate the possibility, specifically alleged in plaintiff's first amended petition, that the tumor on her arm grew during this period, at least by some

imperceptible amount. Accordingly, we hold that an increase in size, no matter how small, would constitute sufficient actual damages to sustain the element of injury in Mrs. Cloys' cause of action. [ Id. at 701.]

Here, the malignant tumor grew significantly, not imperceptibly, during a seven months delay attributable to defendant's malpractice. Plaintiff clearly established that defendant's failure to diagnose the tumor prevented her from undergoing a mastectomy to excise the tumor at the earliest opportunity in 1977. As a proximate result of this malpractice, the tumor remained, grew, and spread in her body. An increase in the size of a malignant tumor, by definition, results in the spread of cancer cells into once healthy tissue, and therefore is an injury in and of itself.*fn3

The concession on the part of plaintiff that a mastectomy would have been necessitated even if the malignancy had been promptly diagnosed does not derogate from the fact that the malignancy was not promptly diagnosed. As a proximate result of that dereliction by defendant, the tumor not only remained in her body, it grew in size. Plaintiff was unquestionably more

seriously diseased as a result of the growth of the malignancy.*fn4 This constituted actionable harm proximately caused by defendant's alleged malpractice according to a standard of reasonable medical probability. It was error on the part of the trial court to fail ...


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