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Dunn v. Praiss

Decided: May 4, 1992.


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

Dreier, Gruccio and Brochin. The opinion of the court was delivered by Dreier, J.A.D.



Plaintiff has appealed from certain trial rulings, and defendants have cross-appealed from the judgment entered in this medical malpractice action. Notwithstanding plaintiff having filed the initial appeal, and since it is our ruling on the cross-appeal that will govern the issues that need to be decided in plaintiff's appeal, we will first consider defendant's cross-appeal attacking the judgment.

Plaintiff, Linda B. Dunn, individually and as the administratrix ad prosequendum of the estate of her late husband, Carey Dunn, commenced this medical malpractice action against Donald E. Praiss, M.D. and Joel E. Marmar, M.D., both urologists practicing as part of defendant South Jersey Urologic Associates. Plaintiff alleged that the defendant physicians were negligent in failing to diagnose testicular cancer in her husband at a time when there was a substantial probability that he would have survived after treatment. Additionally, she sued Martha Brumbaugh, M.D., a primary care physician employed by defendant Health Care Plan of New Jersey, a health maintenance organization (HMO) which retained South Jersey Urologic Associates to provide urological services to its plan members. South Jersey Urologic Associates is not paid on a fee for service basis. Rather, it receives a per capita fee based upon the total number of subscribers to the HMO. Although some services were provided in South Jersey Urologic Associates' own offices, urologic services were generally provided to the HMO subscribers at the HMO premises.

Both a former doctor who had treated decedent and another doctor who was one of the South Jersey Urologic Associates partners also had been named as defendants, but they were voluntarily dismissed prior to trial. All claims against Dr. Praiss were dismissed under R. 4:37-2 following the testimony

of plaintiff's experts.*fn1 Defendants also moved during trial to dismiss all claims against Dr. Brumbaugh and the HMO.

Plaintiff had originally claimed that the HMO was liable both on theories of negligence and for a contractual breach, and that Dr. Brumbaugh was liable on a contractual breach theory. Since as hereafter explained, we have determined that the HMO is vicariously responsible for the actions of Dr. Marmar, we need not reach plaintiff's contractual theories against the HMO and Dr. Brumbaugh.

After a three week trial, the jury returned a verdict in favor of plaintiff against Dr. Marmar and South Jersey Urologic Associates in the amount of $2,904,240.54. The trial Judge denied their motion for a new trial. We here affirm the liability judgment, but are constrained to set aside portions of the judgment for damages because of trial errors which may have so confused the jury that various elements of damages determined by the jury cannot be reconstructed with any substantial certainty.

I -- Factual Background

In May 1982 Carey Dunn worked as a rigger in the Navy Yard in Philadelphia. He had both pain and swelling caused by an inflammation in the epididymis, the tissue surrounding his

right testicle. In conjunction with this epididymitis, he developed a hydrocele, a collection of fluid in the scrotal sack causing significant swelling. At that time he was treated by a private physician, and this condition improved with antibiotics. In December 1982 decedent experienced a recurrence of his symptoms. In the interim he had become a member of Health Care Plan of New Jersey, a health maintenance organization, which provided a "primary care physician" (Dr. Brumbaugh) and also specialists in most areas of medicine. On January 3, 1983, Dr. Brumbaugh diagnosed a recurrence of the epididymitis and referred decedent to Dr. Praiss, a board certified urologist and member of South Jersey Urologic Associates which practiced under a contract with the HMO. Dr. Praiss saw the decedent at the Cherry Hill facility of the HMO as part of his weekly assignment as a staff member of the plan. He maintained a private practice as well with his urologic partners. In his examination of Mr. Dunn he diagnosed an atrophic (shrunken) testicle with persistent hydrocele and a possible left inguinal hernia. He sent decedent to Cooper Medical Center for a scrotal scan which was performed on February 14, 1983. The radiological report noted:

There is apparently a lucent or avascular region on the right side of the scrotum, which might suggest an avascular mass be it a hydrocele or a solid mass. The study could not distinguish between the hydrocele and the solid mass.

While Dr. Praiss did not then order tests to determine the composition of the "mass" or whether it was cancerous, he did schedule a return appointment for decedent for February 22, 1983.

Decedent returned to the HMO office and was seen by Dr. Marmar, another partner of South Jersey Urologic Associates, who also saw patients at the HMO offices on a weekly basis. Dr. Marmar ordered no follow-up tests to determine the content of the mass or whether it was cancerous. He was aware, however, that decedent had had testicular problems since May 1982, but after the initial improvement the present condition had existed for approximately two months. Although there

were then-existing blood tests for testicular cancer and the radiological report had shown a questionable mass, he merely told decedent to note any change in his pain or in the size of the mass through self-examination and to return if necessary. During his deposition Dr. Marmar testified that he could not remember what he told decedent, but his examination notes stated: "Patient will observe size of mass and pain. May need hydrocelectomy." A hydrocelectomy is an operation which drains fluid and would permit a determination of whether the mass was a hydrocele or cancer. Dr. Marmar failed to schedule a follow-up visit and made no contact with decedent thereafter. In fact, neither Drs. Praiss nor Marmar saw decedent following February 1983 and, notwithstanding the assertions of the HMO in its promotional literature, the primary care physician also had no further contact with decedent following the urological consultations.

For the next several months although the hydrocele had become firmer, decedent had no localized pain and explained to his wife that Dr. Marmar had told decedent that the swelling was a hydrocele and that "it could stay like that for a year." Decedent's wife understood Dr. Marmar to have told decedent to return only if he had pain.

In October 1983 decedent began experiencing a full feeling in his chest. In November he returned to the HMO and was seen by Dr. Brumbaugh. On November 28, 1983, she examined him and ordered medication and various tests including an ultrasound of decedent's gall bladder and liver. The ultrasound indicated cancer which had spread to the liver. Among various other consultations was a urological reexamination by a third partner of South Jersey Urologic Associates who found that the right testicle was irregular, the same finding that appeared in one of Dr. Praiss' notes of February 1983, a note which Dr. Marmar had seen when he examined decedent on February 22, 1983.

On behalf of the HMO, Dr. Brumbaugh referred decedent to two oncologists, one of whom ordered a beta HCG test, a specific test to diagnose testicular cancer. The testimony showed that a normal HCG is approximately 1.5. The test of decedent's blood yielded a result of 170,000, a virtually certain diagnosis of testicular cancer. One of the oncologists admitted decedent to Cooper Medical Center with a diagnostic impression of germinal cell carcinoma of the right testis, metastatic to the liver. The discharge diagnosis was germinal cell carcinoma of the testis. The oncologist treated decedent with four rounds of chemotherapy during which the HCG level fell first to 18,537, then to 394, then to 94. After the fourth round the right testicle was removed and tissue examined by a pathologist. At that point the remaining tumor, a mature teratoma, was found not to have malignant cells.

Decedent was then referred to a doctor outside of the HMO at Indiana University. There he was treated with experimental chemotherapy by Lawrence Einhorn, M.D., a world-famous specialist in testicular cancer. Upon decedent's return, he continued treatment with the local oncologist in conjunction with Dr. Einhorn.

As Dr. Einhorn explained in December of 1983, when the testicular cancer diagnosis was finally made, the cancer had metastasized to the liver producing nausea and pain. Almost all of the cancer was killed with chemotherapy, but it was so advanced at the time of the treatment that decedent's life could not be saved. Dr. Einhorn testified that if the diagnosis had been made at any time between February 1983 through September 1983 it was virtually certain that the cancer could have been conquered and decedent's life saved. Decedent died on April 30, 1985 at the age of 38, leaving a widow and two children, ages 17 and 12. All of the treating doctors as well as defendant's expert ...

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