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Bandel v. Friedrich

Decided: July 19, 1989.

WILLIAM F. BANDEL, PLAINTIFF-RESPONDENT CROSS-APPELLANT, AND CHRISTINE A. BANDEL, AS GUARDIAN AD LITEM OF REBECCA BANDEL, A MINOR, AND WILLIAM H. BANDEL, JR., A MINOR, PLAINTIFFS,
v.
CHARLES FRIEDRICH, M.D., DEFENDANT-APPELLANT CROSS-RESPONDENT, AND EMERGENCY PHYSICIANS ASSOCIATES, ZURBRUGG MEMORIAL HOSPITAL, JEROME W. WARREN, M.D., PENNSAUKEN MEDICAL INDUSTRIAL CLINIC, "JOHN DOE" BUSCH, M.D., GARDEN STATE COMMUNITY HOSPITAL, AND HOWARD L. PRESS, D.O., DEFENDANTS



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

Bilder, R.s. Cohen and Arnold M. Stein. The opinion of the court was delivered by Arnold M. Stein, J.A.D.

Stein

The novel question raised in this medical malpractice action implicates the collateral source rule: whether plaintiff in a negligence action can recover damages for the reasonable value of home care and non-professional nursing care gratuitously provided by a third person. We conclude that such damages are recoverable.

Defendant appeals from the judgment entered after a liability verdict finding him 20% at fault and awarding plaintiff total damages of $720,000. Plaintiff cross-appeals, contending that the jury awarded inadequate damages. We affirm the liability verdict. We reverse the $720,000 award and remand the matter to the Law Division for a retrial on damages because the trial judge refused to permit plaintiff to prove as damages the reasonable value of the long-term home care provided him without cost by his mother.

For about three days, plaintiff had been experiencing fever, sweats and chills. On May 17, 1983, at his request, plaintiff's estranged wife and a neighbor drove him to the emergency room of Zurbrugg Memorial Hospital. There, plaintiff was seen by defendant for the first and only time. Plaintiff complained of fever and lower abdominal pain. Following an examination, defendant ordered a complete blood count and

urinalysis. He did not order a urine culture or a blood culture, which, according to plaintiff's experts, would have revealed the presence of bacteria in the urine and in the blood. The lab results were positive for bacteria and white cells. Defendant made a diagnosis of urinary tract infection and gave plaintiff some Bactrim tablets (a sulfa), together with a prescription for that medication. He then advised plaintiff to follow up with a visit to his family doctor in the next two or three days.

Plaintiff did not see his family doctor. Instead, he stayed at home and attempted to take care of himself. After six days, plaintiff returned to work. His employer observed that plaintiff appeared to be very ill and made arrangements for plaintiff to see Dr. James Warren at the doctor's office.

Plaintiff was experiencing a rash and hives as an adverse reaction to the Bactrim prescribed by defendant. Dr. Warren gave plaintiff Benadryl to alleviate the itching caused by the rash, and, accepting defendant's diagnosis, gave plaintiff a prescription for Tetracycline for the urinary tract infection.

The rash disappeared but the fever and chills continued. Plaintiff returned to Dr. Warren, who increased the Tetracycline dosage and ordered a urinalysis. The symptoms did not abate.

On May 29, 1983, plaintiff went to the emergency room at Garden State Community Hospital where he was seen by Dr. Busch, in the emergency room. Dr. Busch also diagnosed plaintiff's condition as a urinary tract infection but ordered a blood culture. The blood culture proved positive for streptococcus B, a virulent bacterium.

Two days later, plaintiff was admitted to Garden State Community Hospital by Dr. Press, with a diagnosis of "acute urinary infection/septicemia." The next day, after a complete physical examination of plaintiff, Dr. Press changed his diagnosis to "probable sub-acute bacterial endocarditis with mitral valve involvement." More blood tests confirmed the presence of the streptococcus B infection. A urine culture was negative

for bacterial infection, essentially ruling out a urinary ...


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