On certification to Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz, and Justices Clifford, Pollock and Garibaldi. For reversal and remandment -- Justices Handler, O'Hern and Stein. The opinion of the Court was delivered by Pollock, J. O'Hern, J., Dissenting. Handler and Stein, JJ., join in this opinion.
In this medical-malpractice action, the jury found that defendant Dr. Albert Tama had not been negligent in failing to diagnose breast cancer in plaintiff Mary Ann Campo. The appeal questions whether the trial court committed reversible error in not allowing plaintiff to prove estimated medical expenses that she might incur were she to suffer a recurrence of cancer. Also raised is the propriety of a jury instruction that if plaintiff were to suffer a recurrence, she could maintain a subsequent action. In an unreported opinion, the Appellate Division affirmed a judgment for defendant. We granted plaintiffs' petition for certification, 130 N.J. 19, 611 A.2d 656 (1992), and now affirm.
In March 1985, Mrs. Campo, who was in her mid-forties, called Dr. Tama to report that she had found a lump in her left breast. In 1974, 1977, and 1980, Dr. Tama had discovered in Mrs. Campo's breasts three benign lumps, which were surgically removed.
Based on the presence of those lumps, Dr. Tama had diagnosed Mrs. Campo as suffering from fibrocystic breast disease, a nonspecific diagnosis for a condition involving palpable lumps in the breasts, usually accompanied by pain and tenderness.
On the same day that Mrs. Campo called, Dr. Tama examined her. He noted that an area above her left nipple was tender and "shotty," meaning that he could feel small nodules that felt like buckshot. Although he could not feel a lump, he asked her to report to Garden State Community Hospital for a mammogram, an x-ray that can reveal masses and malignancies.
At the hospital Dr. William Rosner reviewed the mammogram and examined Mrs. Campo. Dr. Rosner agreed with Dr. Tama's diagnosis that the nodules were a manifestation of fibrocystic disease.
Dr. Rosner's report to Dr. Tama indicated the presence of bilateral microcalcifications, meaning that in both breasts microscopic areas of soft tissue had hardened because of accumulations of calcium salts. Dr. Tama's secretary told Mrs. Campo that all was "fine." According to Mrs. Campo, when Dr. Tama later called, he added that "[t]here was nothing to worry about." He told her that he would see her in six months, at her next regularly-scheduled appointment.
Mrs. Campo returned to Dr. Tama in October 1985. She reported no new symptoms, but repeated that she could feel a lump in her left breast beneath a tender area. Dr. Tama conducted a routine examination, and again was unable to palpate a distinct mass. He instructed her to return in six months.
In March 1986, during her regularly-scheduled examination, Mrs. Campo told Dr. Tama that the area was now so tender that she could not lie on her stomach. She also stated that the lump felt larger. Dr. Tama noted an induration or hardening of the area above the nipple on her left breast, but he still was unable to palpate a distinct lump. Because of the induration, he referred Mrs. Campo to the Medical Imaging Center at Greentree for another mammogram, which revealed two masses, one measuring
one centimeter and the other 1.5 centimeters. Dr. Tama informed Mrs. Campo that the x-ray report indicated that a section of her breast should be biopsied. He referred her to a surgeon, Dr. Rudolph Camishion, who examined Mrs. Campo and palpated a three-centimeter firm mass in her left breast.
On May 12, in an out-patient procedure, Dr. Camishion removed a section of tissue from Mrs. Campo's left breast. While she was in the recovery room, he told her that "it did not look good" and that she should return the next day. On that day he told her that the biopsy established that the tumor was malignant. He recommended a mastectomy, an excision of the breast. According to Mrs. Campo, Dr. Camishion told her that the tumor had been cancerous from its inception in 1985.
Mrs. Campo immediately obtained a second opinion from Dr. Gordon Schwartz, who, after examining the 1985 and 1986 mammograms and the biopsy results, confirmed Dr. Camishion's diagnosis. According to Mrs. Campo, Dr. Schwartz also told her that the 1985 mammogram "didn't take" and was illegible. Soon thereafter, Dr. Tama called Mrs. Campo to ascertain the results of her visit to Dr. Camishion. When Mrs. Campo asked Dr. Tama about the poor quality of the x-rays, he responded that he had not seen the 1985 x-rays, but had relied on Dr. Rosner's report.
On June 3, 1986, Mrs. Campo underwent a modified radical mastectomy, during which Dr. Schwartz removed her left breast, the underlying muscle, and the lymph nodes under her left arm. Because the cancer had metastasized to one lymph node, Mrs. Campo also underwent six months of chemotherapy. Additionally, she had a series of reconstructive surgeries. Fortunately, she has not experienced any recurrence of cancer in the intervening seven years.
On April 8, 1987, Mrs. Campo and her husband, Francis Campo (plaintiffs), sued Dr. Tama, Garden State Community Hospital, Dr. Rosner, and his medical group, CPH Radiologic Associates. Before trial, the court granted the hospital's motion for summary judgment.
At trial, plaintiffs presented one expert, Dr. Donna Glover, an oncologist. She testified that Mrs. Campo's fibrocystic disease put her at a three-times-greater-than-average risk of developing cancer. According to Dr. Glover, microcalcifications are associated with malignancy in twenty to fifty percent of relevant cases. Because of the presence of microcalcifications and Mrs. Campo's high risk of cancer, Dr. Glover believed that in March 1985 Dr. Tama should have either needle-aspirated the nodules, performed an ultrasound, referred Mrs. Campo to a surgeon, or seen her more frequently. Dr. Glover also testified that the quality of the 1985 mammogram was poor. Plaintiffs, however, presented no expert testimony that either the x-ray or Dr. Rosner's report was so deficient as to constitute a breach of a duty owed to Mrs. Campo. Consequently, at the Conclusion of plaintiffs' case, the court granted motions to dismiss by Dr. Rosner and CPH Radiologic Associates.
On behalf of Dr. Tama, Dr. Michael Mastrangelo, an oncologist, disputed the claim that Mrs. Campo was at a higher risk of developing breast cancer because she had a fibrocystic disease. He testified that there are various sorts of fibrocystic disease and that only those that show atypical hyperplasia, the excessive proliferation of irregular cells, are associated with a higher-than-average risk. The pre-1986 biopsies from Mrs. Campo's breast, he stated, did not indicate any such proliferation. Dr. Mastrangelo also testified that although microcalcifications may sometimes indicate cancer, a doctor should also consider other risk factors, such as the age of the patient and the family history of breast cancer. His review of the medical records indicated that Mrs. Campo had not exhibited any risk factors. He concluded that Dr. Tama had conformed with accepted medical standards in requiring only that Mrs. Campo return at six-month intervals.
Dr. Richard L. Berman, a gynecologist, concurred with Dr. Mastrangelo that only follow-up examinations were indicated. The presence of microcalcifications in both of Mrs. Campo's breasts, he stated, was consistent with fibrocystic disease. He
also testified that it was standard practice for gynecologists to rely on radiologists' reports, and not themselves look at mammograms.
After the jury found that Dr. Tama had not been negligent, the court entered a judgment of no cause of action.
Plaintiffs contend two trial errors require reversal of the judgment. First, they contend that the trial court mistakenly refused to allow them to present evidence relating to medical expenses Mrs. Campo might incur should she suffer a recurrence of cancer. Although they did not so argue before the trial court, they now rely on the rule that if a plaintiff is more likely than not to incur a future medical expense, he or she may recover at present. Coll v. Sherry, 29 N.J. 166, 148 A.2d 481 (1959). Their second contention is that ...