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Cannon v. New Jersey Bell Telephone

Decided: July 22, 1987.

KEVIN CANNON AND JOAN AND CHARLES CANNON, HIS GUARDIANS AD LITEM AND JOAN AND CHARLES CANNON, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
NEW JERSEY BELL TELEPHONE, DEFENDANT-RESPONDENT, AND JOHN DOE, INSTALLER, AND JERRY FILLMORE, DEFENDANTS *FN*



On appeal from the Superior Court, Law Division, Camden County.

Dreier, Shebell and Stern. The opinion of the court was delivered by Stern, J.A.D.

Stern

[219 NJSuper Page 305] Plaintiffs, Kevin Cannon, a minor, and his parents, Charles and Joan Cannon, appeal from a judgment in the amount of $64,248.17 entered against defendant New Jersey Bell Telephone

Co. (hereinafter defendant) following a jury verdict for plaintiffs. The verdict was premised on the jury's finding that defendant was 100 percent negligent. Plaintiffs appeal only the issue of damages.

The essential facts are not in dispute. On October 30, 1980 between 6:00 p.m. and 6:30 p.m., Kevin Cannon, then 14 years of age, was riding his bicycle on the sidewalk in a residential neighborhood in Ventnor.*fn1 Kevin testified that he struck a dangling telephone wire which caused him to be "thrown back" off the bicycle. The bike landed on top of Kevin, and the seat hit him in "[t]he groin area."*fn2

After the accident, Kevin got up, went home and told his mother what had happened. His mother took him back to the scene of the accident, then to the police station and thereafter to the family's pediatrician, Dr. Gene Norman Schraeder. Dr. Schraeder conducted a complete physical of Kevin, noting in his records that the youth had tenderness and a mild abrasion of the scrotum. Dr. Schraeder indicated his main concern at the time was a cervical neck muscle sprain, for which he recommended rest and a cervical collar. The physician attempted to obtain a urine sample during this examination but was unable to because Kevin had trouble voiding.

About six months after the accident Kevin woke up one morning at about 3:00 a.m. and complained to his parents about pain in his lower abdomen and his inability to urinate. Kevin

went to Dr. Schraeder, who conducted an intravenous pyelogram test on April 16, 1981. A week later, Kevin again awoke complaining of inability to urinate. Dr. Schraeder took a blood test on April 24, 1981, which was negative "except for a mild number of white blood cells and a plus one albumin, which is very common in children."

Dr. Schraeder referred Kevin to Dr. Herbert Axilrod, a urologist, for further examination. Dr. Axilrod first saw Kevin on April 28, 1981. Kevin complained of nausea and vomiting. Dr. Axilrod testified that he admitted Kevin to Atlantic City Medical Center for evaluation on May 4, 1981. At the hospital, Dr. Axilrod performed a cystoscopy in which he inserted a tubular structure which has a telescope and light for purposes of observing the urethra channel and bladder. Dr. Axilrod said that an obstruction in the bulbous urethra portion of the channel was observed so he attempted to dilate the strictured area by inserting a narrow guide into the the channel. He then screwed an instrument known as a Phillip's Follower into the narrow guide. Because of difficulty in getting anything through this narrow area of the urethra, Dr. Axilrod decided to leave the catheter in Kevin for four days, while changing the Follower on a daily basis to ones with progressively larger diameters in order to dilate the stricture. Dr. Axilrod testified he thereafter commenced dilation treatment and performed dilation about once every six months so that the channel would not contract.

Dr. Axilrod recommended such treatment for the rest of Kevin's life. The doctor recommended against a urethrotomy or surgery "because first of all I feel that the situation is being adequately handled the way it is. And by handling it the way it is, I think we are avoiding the risks attendant to the surgical procedure." Dr. Axilrod indicated

The first risk is the risk of anesthesia. Another risk is that the urethrotomy may not eliminate the stricture. You may wind up with a stricture which requires dilatation [sic] just as you had before.

There is the risk of bleeding. Bleeding is a very common occurrence with this operation and sometimes can be quite severe.

There have been reported cases of impotence and a condition called Chordee.

Chordee is a curvature of the penis on erection. . . . [I]t's probably a permanent condition.

And . . . if there is any damage to the sphincter mechanism . . . you run the risk of any damage to the sphincter mechanism which is just proximal to the bladder side of the strictured area. If that should be damaged in any way, you could run the risk of incontinence, inability to control the flow of --. . . . It would be very difficult to correct.

After Kevin's discharge from the hospital on May 8, 1981, he visited Dr. Axilrod's office about 13 times, the last visit being November 25, 1985, for dilation treatment.

Kevin testified that he undergoes the dilation without anesthesia and it takes about "[t]en to fifteen seconds." He experiences bleeding for about two to three days after each dilation, and worries "[a]lmost every day" about "[t]he fear of having it close over and going back to the hospital." He indicated that he was working at the time of trial as a manager of a motel and that he would like to go to school to study art.

Charles Cannon, Kevin's father, testified that after the first dilation in Dr. Axilrod's office his son appeared dizzy and pale. On Kevin's third or fourth visit, during which he was not accompanied by his parents, after leaving the doctor's office, Kevin became incoherent and dizzy and stumbled down the street "holding onto the buildings to get to" his mother's office. After that Mr. Cannon said he always remained with Kevin at the office until the dilation was completed and took him home.

Mr. Cannon indicated that his son was very fearful of the dilation procedure and became "a total recluse" or "basket case" in the days before and after a dilation session. Initially it took Kevin "a long time . . . to get over the dialations [sic]." ...


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