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Verdicchio v. Ricca

March 15, 2004

KATHLEEN VERDICCHIO AND VINCENT VERDICCHIO, INDIVIDUALLY AND AS EXECUTORS OF THE ESTATE OF STEPHEN VERDICCHIO, PLAINTIFFS-APPELLANTS AND CROSS-RESPONDENTS,
v.
ANTHONY RICCA, M.D. AND HAZLET HEALTH CARE, DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

On this appeal in a medical malpractice case, the Court revisits the problem of assessing proximate cause in the context of harm generated by concurrent forces. More particularly, the Court is called on to apply the increased risk doctrine in a case alleging failure to diagnose cancer.

Kathleen and Vincent Verdicchio, individually and as executors of the estate of their son, Stephen Verdicchio, filed a wrongful death and survivorship action against defendant, Dr. Anthony Ricca, alleging malpractice in connection with Dr. Ricca's failure to timely diagnose Stephen's cancer. Mrs. Verdicchio testified that between mid-1993 and early 1994, Dr. Ricca generally discounted Stephen's complaints of pain and other symptoms, attributing them to anxiety and Stephen's participation running track. Dr. Ricca testified to a starkly different version of his interactions with the Verdicchios.

The Verdicchios' expert, Dr. Robert Morrow, testified that Dr. Ricca's failure to examine Stephen's leg during a visit in January 1994 was a deviation from the standard of accepted medical care. He also testified that such an examination could have revealed the tumor in Stephen's leg, and a diagnosis of cancer at that time would have increased Stephen's chance of survival. However, in response to a question as to whether Dr. Morrow knew, within a reasonable degree of medical probability, when the cancer had metastasized to Stephen's lungs, Dr. Morrow stated he did not. At the end of the Verdicchios' case and again at the conclusion of trial, Dr. Ricca moved to dismiss the complaint. The trial court reserved decision on both motions.

The jury returned a verdict declaring that Dr. Ricca had been negligent; that the negligence increased the risk of a bad outcome; and that the increased risk was a substantial factor in bringing about the harm that befell Stephen. It awarded the estate $6,500,000 in the survival action and $1,500,000 in the wrongful death action. Because the jury concluded that the underlying disease, osteosarcoma, was responsible for 45% of the outcome and Dr. Ricca for 55%, the total judgment of $8,000,000 was molded to $4,400,000. Dr. Ricca then moved for judgment notwithstanding the verdict.

The trial court granted Dr. Ricca's motion along with the previous dismissal motions, explaining that the Verdicchios were required to prove, as an element of the modified proximate causation test, that Stephen's cancer had not metastasized at the time of Dr. Ricca's alleged deviation. The trial court found that the Verdicchios' failure to present any evidence regarding the metastasis of Stephen's cancer fatal to their case.

The Appellate Division affirmed, concluding that the Verdicchios failed to establish by expert testimony that Stephen was suffering from non-metastasized cancer at the time of the alleged deviation by Dr. Ricca. The panel held that the jury was left to speculate that Stephen's condition was such that, had Dr. Ricca diagnosed the cancer in January 1994, Stephen's chance of survival would have been increased.

The Supreme Court granted the Verdicchios' petition for certification and Dr. Ricca's cross-petition.

HELD There was a basis for the jury to conclude that the increased risk to which Dr. Ricca exposed Stephen was a substantial factor in bringing about the harm that ultimately befell him, and the trial court erred in entering judgment for Dr. Ricca.

1. The traditional "but for" test that applies in most negligence settings allows recovery only when the injury is one that would not have occurred "but for" the wrongful act. The "but for" test has its limitations in situations where two or more forces operate to bring about a certain result. In response to the limitation of the "but for" test in concurrent causation cases, New Jersey has adopted a modified standard - the substantial factor test. The substantial factor test allows the plaintiff to submit to the jury "whether the defendant's deviation from standard medical practice increased a patient's risk of harm or diminished a patient's chance of survival and whether such increased risk was a substantial factor in producing the ultimate harm." If the jury determines that the deviation increased the risk of harm from a preexistent condition, the substantial factor standard is used, requiring the jury to determine whether the deviation, in the context of the preexistent condition, was sufficiently significant in relation to the eventual harm to satisfy the requirement of proximate cause. (pp. 26-38)

2. Motions for judgment at the close of plaintiff's case, at the close of all evidence, and for judgment notwithstanding the verdict, are governed by the same standard. A court must treat the proofs of the party defending against these motions as uncontradicted and accord them the benefit of all legitimate inferences. The Verdicchios were required only to show that Dr. Ricca's failure to perform an examination that would have led to the discovery of the cancer increased the risk that Stephen would lose the opportunity for treatment at an earlier stage. Although their expert was unable to render an opinion whether the cancer had metastasized by January 1994, his testimony was clear that Dr. Ricca's delay increased the risk that Stephen would lose the opportunity for effective treatment. The Verdicchios' case did not depend on proof that the cancer had not metastasized in January. Nor were they required to establish statistical probabilities of survival. (pp. 38-42)

3. In his cross-petition, Dr. Ricca contends that if the Appellate Division judgment is reversed, a new trial on liability and damages is warranted. Dr. Ricca complains he was prejudiced by Mrs. Verdicchio's testimony that he continued to deny Stephen's cancer in the face of a definitive diagnosis to the contrary, and the testimony of Mrs. Verdicchio's co-worker recounting her hysterical response to that conversation with Dr. Ricca. This testimony shed light on Dr. Ricca's attitude toward the case, and whether his preconceived theories about Stephen and his mother affected his approach to the case. Trial court determinations of whether the probative value of evidence is substantially outweighed by undue prejudice under N.J.R.E. 403 should not be overturned on appeal unless the trial court's finding was so wide of the mark that a manifest denial of justice resulted. Applying those standards, the Court finds that there is no reason for it to intervene. Dr. Ricca also challenged three statements made by the Verdicchios' counsel during summation. Those statements were improper and the trial court immediately identified them as such and instructed the jury not to consider them during deliberations. The Court has no reason to believe the jury disregarded those instructions. Finally, the Court disagrees with Dr. Ricca's contention that the Verdicchios' failure to prove which of Stephen's damages were attributable to his pre-existing disease and which could be linked to any increased risk was fatal to their case. Once the Verdicchios established that Dr. Ricca's deviation increased the risk to Stephen and that that increased risk was a substantial factor, it fell to Dr. Ricca to establish that the damages could be reasonably apportioned and what those apportioned damages were. (pp. 42-50)

4. The trial court stated, in passing, that had the verdict not been set aside on purely legal grounds, a new damages trial would be in order because the amount of the award "shocked [his] conscience." Because of the way the matter arose, the Court did not consider the size of the verdict. The Court assumes that the trial court will address this issue further on the remand. Should the trial court determine the damages award excessive, remittitur should be considered as a remedy to avoid the unnecessary expense and delay of a new damages trial. (pp. 50-52)

Judgment of the Appellate Division is REVERSED, and the matter is REMANDED for reinstatement of the verdict.

JUSTICE LaVECCHIA has filed a separate, DISSENTING opinion, in which JUSTICE VERNIERO joins, expressing the view that the trial court should have granted Dr. Ricca's motion for dismissal at the conclusion of plaintiffs' case because the Verdicchios failed to present expert testimony to establish the requisite link between Dr. Ricca's alleged negligent act and Stephen's injury.

CHIEF JUSTICE PORITZ and JUSTICES ZAZZALI, and ALBIN join in JUSTICE LONG's opinion. JUSTICE LaVECCHIA filed a separate dissenting opinion in which JUSTICE VERNIERO joins. JUSTICE WALLACE did not participate.

The opinion of the court was delivered by: Justice Long

Argued October 7, 2003

On appeal in this medical malpractice case, we revisit the thorny problem of assessing proximate cause in the context of harm generated by concurrent forces. More particularly, we are called on to apply the increased risk doctrine in a case alleging failure to diagnose cancer. On the facts before us, it is not known whether the cancer had metastasized at the time of the deviation. As a result, the trial court set aside a substantial verdict in plaintiffs' favor and the Appellate Division affirmed, essentially holding that the absence of proof regarding metastasis was a fatal flaw in plaintiffs' increased risk analysis. We now reverse, on the ground that those courts too narrowly characterized the notion of increased risk and required quantification that is not necessary under our jurisprudence.

I.

The matter arose when plaintiffs Kathleen and Vincent Verdicchio, individually and as executors of the estate of their son, Stephen Verdicchio, filed a wrongful death and survivorship action against defendant, Dr. Anthony Ricca, alleging malpractice in connection with Dr. Ricca's failure to timely diagnose Stephen's cancer. Dr. Ricca answered, denying the allegations of the complaint. The matter was tried over eight days. At the end of the Verdicchios' case and again at the conclusion of the trial, Dr. Ricca moved to dismiss the complaint. The trial court reserved decision on both motions.

The jury returned a verdict declaring that Dr. Ricca had been negligent in his treatment of Stephen; that the negligence "increased the risk" of a bad outcome; and that that increased risk was a "substantial factor" in bringing about the ultimate harm that befell Stephen. It awarded the estate $6,500,000.00 in the survival action and $1,500,000.00 in the wrongful death action. Because the jury concluded that the underlying disease, osteosarcoma, was responsible for 45% of the outcome and Dr. Ricca for 55%, the total judgment of $8,000,000 was molded to $4,400,000.00. Dr. Ricca then moved for a judgment nothwithstanding the verdict.

The trial court granted that motion along with the previous dismissal motions on the ground that:

In my opinion the plaintiffs must prove that a chance of avoiding the harm existed. Plaintiff must have shown this by proving that Stephen's cancer had not metastasized in January of 1994. However, plaintiffs took the stance that Stephens's cancer had not metastasized to his lungs by January of 1994.

But plaintiffs... did not prove that fact. In fact, plaintiffs' expert was unable to render any opinion regarding the metastasis of Stephen's cancer. Thus, plaintiffs did not meet the burden of proving an element of the modified proximate causation test.

The Appellate Division affirmed the trial court's decision concluding that "plaintiffs failed to establish by expert testimony that Stephen was suffering from non-metastasized cancer at the time of the alleged deviation by defendant, and thus, failed to meet their burden of proof in an 'increased risk' case under the modified proximate causation test enunciated in Evers v. Dollinger, 95 N.J. 399 (1984), Scafidi v. Seiler, [119] N.J. 93 (1990), and Gardner v. Pawliw, 150 N.J. 359 (1997)." The panel held that the jury was left with no proof, other than speculation, that Stephen's condition was such that, had the defendant diagnosed it as of January 1994, Stephen's chance of survival would have been increased.

The Verdicchios filed a petition for certification and Dr. Ricca, a cross-petition. We granted both, Verdicchio v. Ricca, 175 N.J. 79 (2002), and now reverse.

II.

The relevant facts established at trial are as follows: Dr. Ricca, a board certified internist, became Stephen Verdicchio's primary care physician on May 22, 1993, when Stephen was seventeen years old. Dr Ricca was selected by the Verdicchio family from a list of eligible physicians associated with the family's insurance carrier, Oxford Health. On that visit, Dr. Ricca recorded that Stephen was generally healthy but experienced some lethargy and difficulty running track at school. He also reported bowel movements after each meal.

Stephen saw Dr. Ricca again on August 3, 1993, to obtain medical clearance to compete on his high school track team. According to Mrs. Verdicchio, during that visit, she told the doctor that Stephen continued to have bowel problems and some difficulty breathing. Dr. Ricca ordered blood tests, a chest x ray, and an electrocardiogram that all proved to be normal.*fn1

According to Dr. Ricca, neither Mrs. Verdicchio nor Stephen mentioned any stomach pains, bowel problems or diarrhea. Dr. Ricca also examined Stephen's legs and knees and did not record any evidence of pain or deficits in range of joint motion.

Dr. Ricca again saw Stephen on October 2, 1993, when he administered a flu shot. Mrs. Verdicchio testified she made that appointment because Stephen was not feeling well, was still tired and lifeless, and continued to have bowel problems. He also continued to lose weight. Dr. Ricca denied that those symptoms were even mentioned during the visit. His records merely indicate that Stephen went in for a flu shot. In that connection, Mrs. Verdicchio testified as follows:

A: I went there because he wasn't feeling good. He wasn't getting better. He was tired. He was lifeless. He was losing weight. I kept watching this young man who would eat and I should be buying him larger size shirts or bigger pants or what have you and it wasn't coming to that.... So I took him to the doctor.

Q. Now, did you take him merely to get a flu shot?

A. The flu shot never entered my mind. Why would you give a high school student a flu shot?

Q. Okay. Now, in Dr. Ricca's records he says, "Allergies, many environmental allergies," he says. Did you tell him that he had allergies or did you tell him about these complaints?

A. I told him about the complaints and probably what used the word, his allergies coming off of going into a season again up there. But I know that every time we walked in I felt like a broken record. Every time I walked in, I was saying the same things.

Mrs. Verdicchio testified that in response to her expressed concerns during that visit about Stephen's bowel problems, Dr. Ricca told her she was a paranoid mother not ready to let go of her son, and that that was adding stress for Stephen. She also testified that the doctor told her the bowel movements could be a sign of anorexia, which is found many times in runners, and that Stephen could also be using laxatives or other drugs. Dr. Ricca denied making any of those statements.

Mrs. Verdicchio recounted that in the late fall of 1993 to early January 1994, Stephen continued to complain of pain in his left leg and continued to lose weight. On January 25, 1994, Stephen and Mrs. Verdicchio went to see Dr. Ricca. Mrs. Verdicchio recounted that Stephen complained of problems with bowel movements, diarrhea, weight loss and specifically with pain in his left leg. Dr. Ricca denied that Stephen or his mother raised the issue of leg pain. He recorded in his computerized "Patient Chart Notes" that Stephen "appears seriously ill." The chart also indicated under "Current Complaint" - "diarrhea, constipation, and stomach pains." The patient history further described:

Otherwise healthy 17 year old male presents with several month history of diarrhea. The patient states that he has had periods of normal bowel movements followed by days of watery diarrhea. The patient states that he has never seen blood in the stool. The stool has never been black. He states that after a few mouthfuls of food he has to evacuate his bowels. He has occasional crampy abnormal pain. No fever, sweats, chills. Some arthralgias of the knees but the patient is a track runner. He is not yet sexually active. No vomiting. The patient states that he has periods of constipation. Actually, the patient has lost 17 pounds over the last 5 months.

[Emphasis added.]

Mrs. Verdicchio testified that Dr. Ricca never suggested even indirectly that Stephen was seriously ill:

A. No, no. He never told me that. If he would have told me that, -- don't you think I would have went to another doctor? No mother, no parent has a doctor say to you, your child is seriously ill, when you know in your heart there is already something wrong and ignore it. No mother would do that. I'm sorry.

Mrs. Verdicchio stated in regard to the leg pain that Dr. Ricca told them that track runners generally have aches and pains in the legs, and that if Stephen was going to be a track runner he would have to accept the pain. Dr. Ricca testified that he asked Stephen if he was having any joint pain, and Stephen indicated achiness in both knees. The doctor acknowledged that he did not examine Stephen's legs or knees, attributing the complaint of pain to Stephen's running:

Q. You have been criticized for not examining Stephen's legs that day when you elicited this response to your question about joint pain.

A. Yes.

Q. Why didn't you examine his knees or legs that day?

A. This was a directed examination. We were looking for the cause of his diarrhea. The arthralgias related to the knees were an incidental to what was going on. The question of the arthralgias was dedicated to finding out what the cause of the diarrhea was. I would also say that in examining the patient, you would take an overview of the patient. And even though it's not marked down that the knees were specifically examined, I couldn't attest that they weren't examined.

Dr. Ricca ordered laboratory tests that revealed an elevated white blood count, as well as elevated neutriphils, and uric acid levels. Dr. Ricca also recommended that Stephen see a gastroenterologist and authorized a referral to Dr. Kern who examined Stephen on February 4, 9 and 22, 1994.

Dr. Kern reported to Dr. Ricca on March 7, 1994, that he had not found evidence of suspected inflammatory bowel disease, and that Stephen had "improved significantly on just Imodium [an over-the-counter drug that stops diarrhea by preventing the bowel muscles from contracting] having gained ten pounds in two weeks." Dr. Kern indicated that he discussed with Mrs. Verdicchio that Stephen's symptoms could be related to irritable bowel syndrome secondary to emotional distress relating to his relationship with her. He also recommended that if Stephen's symptoms should recur or not continue to improve, Stephen should receive a D-Xylose test to determine if he had malabsorption syndrome.

On February 12, 1994, Stephen called Dr. Ricca regarding the results of tests administered by Dr. Kern. Dr. Ricca testified that although he was not sure whether his office had received those results yet, he called Stephen back that same day but that no one answered. Thereafter, according to Dr. Ricca, there was no further contact between him and Stephen until May 3, 1994.

Mrs. Verdicchio testified regarding Stephen's condition after the visit with the gastroenterologist:

A. It seemed like for a few weeks he was getting better.... and then all of a sudden, almost like the turning of a television channel, he was starting to lose weight again, he was getting up and going to the bathroom, complaining. He had always complained of the leg, but he was back complaining of it severely. The knee.

Q. What did you do as a result?

A. I called Dr. Ricca's office.

Q. And did you speak to him personally?

A. Yes.

Q. And tell us -

Court: Can we fix a time frame?

Q: Can we fix a time frame? When was this? Do you have any idea of when it was?

A. I have an idea, because Stephen was still, it was spring track. It was probably the end of April, in the beginning of May, because we were still, he was finishing another track season and I was really concerned.

Q. And what did - tell us about the conversation.

A. The conversation, I can't give it word to word, but the concept was that the track season was ending and to give Stephen a break, but that pressure was going to come on more because he was going to be applying to colleges and all. But to see, again, the same thing he had said the season before, see how it is after he rests it awhile and see how he feels after being out of school and not having the pressures of the school.

Dr. Ricca examined Stephen again on May 3, 1994, after Stephen collapsed during a track meet and was experiencing pain in his left leg. Dr. Ricca's "Patient Chart Notes" indicated that Stephen complained of pain before and after, but not during running, from his left hip down to the anterior shin. Dr. Ricca recorded that no known trauma existed but that there was "tenderness over left thigh at the lateral aspect with muscle edema." He recommended rest for several days and then ice followed by heat after running, along with Tylenol for the pain and an Ace bandage for support. Dr. Ricca did not weigh Stephen on that visit and did not ask about his bowel problems. He also did not order an x-ray. With respect to the x-ray, Stephen called Mrs. Verdicchio from Dr. Ricca's office. She testified:

A. On May 3rd, 1994, Stephen ran a track meet... He fell on the field... I never got up there, because Stephen called me from Dr. Ricca's office and said, I remember the first thing he said to me is, I can run. And I thought, oh God. And he said, it's okay. I'm okay. And I said, are you going for an x-ray and he said, no and I asked him to put Dr. Ricca on. And Dr. Ricca said, I keep telling you, it's a sprain, he'll be okay. And I said, and he's got a big meet in two days. If he rests it and he puts ice on it, there is no reason he can't participate.

On May 5, 1994, Stephen returned to Dr. Ricca's office and was seen by an associate, Dr. Stillwell.*fn2 Stephen reported that he had applied ice and heat as directed but had continued to run, and had again collapsed during a track meet. Dr. Stillwell recommended that Stephen continue the same treatment ordered by Dr. Ricca. Mrs. Verdicchio testified that she called Dr. Ricca's office on May 9, 1994, because Stephen continued to experience pain, but that the doctor did not return her call. Dr. Ricca testified that a member of his office staff told Mrs. Verdicchio to call back when Stephen got home from school, but that Mrs. Verdicchio never did so.

In June 1994, the Verdicchio family went on a cruise to Bermuda. During that time, Stephen appeared to be in great discomfort, crying in the night from the pain in his leg. On July 2, 1994, immediately after returning from vacation, Mrs. Verdicchio took Stephen to Dr. Ricca's office. The examination revealed swelling and firmness in the leg that felt "abnormal." Dr. Ricca told Stephen and Mrs. Verdicchio that he would order x-rays of Stephen's leg, and that he would wait for those results to decide how to proceed. He weighed Stephen at Mrs. Verdicchio's request, and found that the boy had lost five to seven pounds on the trip.

Mrs. Verdicchio testified that she insisted that Dr. Ricca give her the referral for the orthopedist so that she could at least make an appointment while they waited for the x-ray results. She told her husband that she "had to literally fight,"... "scream"..., for a referral to an orthopedist. Mrs. Verdicchio ultimately obtained a referral from Dr. Ricca to see Dr. Bernard P. Murphy.

On July 7 Stephen was examined by Dr. Murphy, who reviewed the x-rays and found they revealed calcification in the quadriceps musculature as well as some calcification of the femur. Dr. Murphy ordered an MRI that was conducted on July 13, 1994, and revealed a mass in Stephen's leg. The doctor immediately advised the Verdicchios to take Stephen to the Thomas Jefferson Medical Center in Philadelphia for a biopsy. Stephen was first seen at Thomas Jefferson the next day and was diagnosed with osteosarcoma (a malignant tumor) of his left femur. It was also determined that the cancer had metastasized to Stephen's lungs.

Mrs. Verdicchio testified, over Dr. Ricca's objection, that on July 18, 1994, she called him and informed him that Stephen had been diagnosed with cancer and that the doctors at Thomas Jefferson needed Stephen's records, especially the most recent x-rays:

When I was talking to Dr. Ricca on the phone, his comment was that he had the x-ray and he had a copy of the tests and Stephen did not have cancer and I was to get him out of the hospital in Philadelphia and bring him home and he would deal with it at home.

Dr. Ricca acknowledged speaking with Mrs. Verdicchio that day but unequivocally denied that he made any of those statements. Maureen (Ginger) Mulligan, a co-worker of Mrs. Verdicchio, was permitted to testify that Mrs. Verdicchio called her, "hysterical," "sobbing" and "crying," and related the ...


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