On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Before Judges Petrella, Brochin and Cuff
The opinion of the court was delivered by
In June 1987, Rachel Fischer, plaintiff's decedent, was diagnosed as suffering from metastatic lung cancer. She underwent radiation therapy and two cycles of chemotherapy. As the result of her condition and the therapy to which she submitted herself, she suffered a loss of appetite, severe nausea, and the loss of all of her hair. She experienced anemia and general weakness. Ultimately, she suffered from brain seizures, she had her kidney
removed, and she lapsed in and out of a coma until she died on February 16, 1988. Her suffering was exacerbated by the fact that she was a holocaust survivor, and the circumstances of her cancer and her treatment, including the loss of her hair, caused her to relive her concentration-camp experiences.
Plaintiff is Mrs. Fischer's administrator ad prosequendum and the administrator of her intestate estate. He sued defendants, Dr. Arthur T. Canario, M.D. and Dr. Norman Magid, M.D., for medical malpractice, alleging that, but for their negligence, Mrs. Fischer's cancer would have been discovered in October 1984. The parties stipulated, and the trial court informed the jury, that if the cancer had been diagnosed at that time, Mrs. Fischer would have had a fifty percent chance of recovery.
The jury found that Dr. Canario, but not Dr. Magid, had been negligent. The verdict in Dr. Magid's favor is uncontested. The evidence presented at trial showed the following facts relevant to the negligence of Dr. Canario.
Mrs. Fischer, who was then 61 years old, went to the emergency room of the Newark Beth Israel Medical Center at 12:45 a.m. on October 11, 1984. She was treated there by Dr. Canario, an orthopedic surgeon, who examined an x-ray of her shoulder, diagnosed her injury as a fracture, applied a sling, administered medication for her pain, and told her to go home and to make an appointment for a follow-up visit. Mrs. Fischer asked to be admitted to the hospital for the night because there was no one else home at her residence. Dr. Canario reluctantly agreed and she was admitted. On the hospital records, he was listed as her attending physician, although he did not treat her at the hospital after her admission. Mrs. Fischer left the hospital the morning after her arrival.
Pursuant to what was then the unvarying procedure for a patient being admitted to the hospital, her chest was x-rayed. The radiologist's report attached to the x-ray indicated a probable tumor. But the report did not come to Dr. Canario's attention.
In accordance with hospital procedures, he was required to sign her chart because he was listed as her attending physician. He did so approximately a week after Mrs. Fischer's discharge from the hospital. He looked through the records attached to her chart, but did not see the x-ray or the radiological report. The evidence is not clear whether they were attached to her chart by that time. Probably, they were not. After he had signed Mrs. Fischer's chart, he examined ...