Campo v. Tama

The opinion of the Court was delivered by

POLLOCK, J.

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.

-I-

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. *126Based 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 *127one 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.

*128At 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, microealcifications are associated with malignancy in twenty to fifty percent of relevant cases. Because of the presence of microealcifications 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 Radio-logic 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 microealcifications 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 microealcifications in both of Mrs. Campo’s breasts, he stated, was consistent with fibrocystic disease. He *129also 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.

-II-

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 the court erred by instructing the jury that if in the future Mrs. Campo were to develop cancer, she could then claim resulting damages.

Plaintiffs correctly assert that the trial court should have instructed the jury that Mrs. Campo could recover for future medical expenses if she could show that she would probably incur those expenses. In Coll, supra, we held that the trial court had erred in not allowing plaintiffs expert to testify regarding expenses related to a future operation to correct plaintiffs present injury. 29 N.J. at 174, 148 A.2d 481. Underlying that holding was our attempt to accommodate the inability to foresee the future and the desire to avoid successive actions for personal injuries. Ibid. We struck the accommodation by allowing the plaintiff to recover for an operation that the plaintiff would probably require. Id. at 175, 148 A.2d 481; see also Lorenc v. Chemirad Corp., 37 N.J. 56, 76, 179 A.2d 401 (1962) (permitting jury to consider testimony regarding plaintiffs fear of future cancer because his expert testified that malignancy was probable). Finding that the operation was reasonably probable, we held that the trial court should have permitted proof of costs of the operation and the *130extent of any resulting disability. Coll, supra, 29 N.J. at 173-74, 148 A.2d 481.

More recently, we held that a high probability that the plaintiff was at an increased risk of contracting cancer would not support a claim for that risk in the absence of proof that the plaintiff would more likely than not contract cancer. Mauro v. Raymark Indus., 116 N.J. 126, 561 A.2d 257 (1989). In Mauro, we affirmed both the trial court’s exclusion of statistical evidence correlating asbestos disease with cancer and its rejection of the plaintiffs claim that exposure to asbestos had increased the risk that he would contract cancer. Id. at 128, 561 A2d 257. Because the plaintiffs expert could not testify that the plaintiff would probably contract cancer, we declined to recognize the claim for damages that would result should the plaintiff contract cancer. Id. at 128, 132-36, 561 A.2d 257; see also Ayers v. Township of Jackson, 106 N.J. 557, 525 A.2d 287 (1987) (reaching same result under New Jersey Tort Claims Act). We said that the claim could be asserted if and when the disease occurred. Neither the statute-of-limitations nor the single-controversy doctrine would preclude the claim. Mauro, supra, 116 N.J. at 143-44, 561 A.2d 257; see also Ayers, supra, 106 N.J. at 583, 525 A.2d 287 (stating that “neither the single controversy doctrine nor the statute of limitations, N.J.S.A. 2A:14-2, -mil preclude a timely-filed cause of action for damages prompted by the future ‘discovery’ of a disease or injury related to the tortious conduct....”).

When addressing Mrs. Campo’s claim for damages, Dr. Glover testified that if Dr. Tama had diagnosed.Mrs. Campo’s cancer in 1985 when she first complained of the mass and tenderness, her chance of complete cure would have been between seventy-five and one-hundred percent. According to Dr. Glover, the twelvemonth delay had reduced Mrs. Campo’s chances to approximately thirty to fifty percent. Dr. Glover’s testimony was that because of the delay, Mrs. Campo had a fifty- to seventy-five-percent chánce of suffering a recurrence of cancer.

*131When plaintiffs’ counsel sought to elicit Dr. Glover’s opinion regarding the medical costs associated with a recurrence of cancer, defense counsel objected, stating that any such testimony would be speculative. Plaintiffs’ counsel responded that the single-controversy doctrine would forbid plaintiffs from bringing a future action for future injuries. The court indicated that if the injury recurred, plaintiff could then sue, but agreed to hold a Rule 8 hearing to determine the nature of Dr. Glover’s testimony.

During the hearing, Dr. Glover iterated that the year delay in diagnosing Mrs. Campo’s cancer had made it more likely than not Mrs. Campo would suffer a recurrence of cancer. Dr. Glover testified further that if Mrs. Campo suffered a recurrence, she would die within a few years. According to Dr. Glover, “care for a year could certainly amount to $100,000,” with the total damages depending “on how long the patient lives.”

The trial court noted that “[tjhere is a higher degree of probability that [the cancer] will recur.” It determined, however, that because “[t]here is no assurance in this instance that the plaintiff would not or could not fall into that category of persons with whom the recurrence did not occur,” “it would be more prudent under all of the circumstances to follow what has been established in the asbestos cases.” The reference to “asbestos cases” is to the Ayers/Mau,ro Rule that a plaintiff may not recover for future injuries until they occur. The trial court ruled, therefore, that plaintiff could not recover for probable future harm, but would have to institute a second action should the harm occur. That ruling was error.

Dr. Glover had testified that because of the delay in diagnosis, Mrs. Campo would probably suffer a recurrence of cancer. That testimony entitled Mrs. Campo to a jury determination on the probability of a recurrence and future medical costs. If future damage is reasonably probable, plaintiffs may recover for it at present. Lorenc, supra, 37 N.J. at 76-77, 179 A.2d 401; Coll, supra, 29 N.J. at 174-75, 148 A.2d 481. The trial court should have allowed Dr. Glover to testify before the jury regarding her *132estimate of the costs that would occur if Mrs. Campo were to suffer a recurrence of cancer.

-III-

The error, however, was harmless. Under Rule 2:10-2, a reviewing court should reverse only if a trial error is clearly capable of producing an unjust result.

The trial court permitted Dr. Glover to testify regarding Mrs. Campo’s increased risk of harm. Dr. Glover testified that because of Dr. Tama’s alleged failure to diagnose Mrs. Campo’s cancer in 1985, Mrs. Campo was more likely than not to suffer a recurrence. Not allowed was Dr. Glover’s offer to testify regarding the monetary damages that Mrs. Campo would incur if she should suffer a recurrence. Because the jury found that Dr. Tama had not breached any duty of care owed to Mrs. Campo, the dámages that she might recover if the jury had found otherwise are irrelevant.

We also find harmless the trial court’s instructions that plaintiffs could maintain a second action if Mrs. Campo’s cancer were to recur. Plaintiffs argue that the erroneous instruction left the jury with the impression that plaintiff could relitigate Dr. Tama’s liability. They assert that if the jury believed that plaintiffs could recover in the future, it might have been less willing to find Dr. Tama negligent, on the assumption that if the cancer were, to recur, a jury at that time could reconsider Dr. Tama’s liability. See Joy v. Barget, 215 N.J.Super. 268, 272, 521 A.2d 906 (App.Div. 1987) (holding that suggestion plaintiff had recourse to workers’ compensation “may have deflected the jury from appropriate consideration of the issues before it”); La Rocca v. Ench, 35 N.J.Super. 53, 56, 113 A.2d 66 (App.Div.1955) (holding that “it is prejudicial to indicate to the jury that the plaintiff has or may have another remedy ... ”). The trial court, however, squarely instructed the jury that its determination of negligence would be binding in all future actions. Plaintiffs’ counsel excepted to the charge because he mistakenly thought that the court had not told *133the jury that if it found Dr. Tama was not negligent, Mrs. Campo could not recover even if she were to suffer a recurrence. Defense counsel correctly responded that the court had instructed the jury that its verdict on negligence would be binding in any future action. Continuing, defense counsel excepted to the charge on the ground that it would make the jury more likely to find Dr. Tama negligent. We have no doubt that the jury understood that its verdict on negligence would bind the parties in any future action and that the court’s instructions did not affect the verdict that Dr. Tama had not been negligent.

The dissent concludes that we should override that verdict. To reach that conclusion, the dissent commits several errors. First, it fails to accept the jury finding that Dr. Tama had not breached any duty of care owed to Mrs. Campo. Hence, the dissent dissembles by describing the jury’s role in this ease as “evaluating a physician’s conduct to see whether it had contributed to cause an otherwise-preventable spread of cancer.” Post at 136, 627 A 2d at 142. As indicated, the jury’s primary role was to decide if Dr. Tama had breached a duty of care. Having found that he had not, the jüry had no reason to consider whether Dr. Tama’s conduct had contributed to the spread of Mrs. Campo’s cancer. By failing to recognize that the dispositive issue is whether Dr. Tama had been negligent, the dissent speculates that the jury was required “to evaluate the extent to which Dr. Tama’s failure promptly to order a biopsy or aspiration of the breast mass in 1985 might have contributed to the spread of plaintiffs cancer.” Post at 137, 627 A2d at 142. Contrary to the dissent, because the jury found that Dr. Tama had not been negligent' in treating Mrs. Campo, it properly did not reach the issue whether the alleged negligence “might have contributed to the spread of plaintiffs cancer.” Ibid. As an abstract proposition, we agree with the dissent’s observation that “[m]ost patients expect, however, that physicians will not fall short of acceptable medical standards in treating them.” Post at 141, 627 A2d at 144. Because the jury found that Dr. Tama had not been negligent, however, that observation is irrelevant.

*134Invalid also is the dissent’s argument, not previously raised at trial or on appeal, that the trial court should have told the jury when it was evaluating Dr. Tama’s conduct to consider Dr. Glover’s testimony about the increased risk of recurrence. Mrs. Campo offered that testimony to prove only the monetary loss she would sustain, not to prove that Dr. Tama should have been more careful. At trial, neither Mrs. Campo’s counsel nor her expert contended that Dr. Tama should have been more careful because of the increased risk of recurrence. Thus, the increased risk of recurrence relates not to any alleged breach of duty but to causation or damages. More important, Dr. Glover testified that Mrs. Campo was at an increased risk of recurrence. As the dissent concedes, “the trial court had permitted Dr. Glover to testify in front of the jury that Mrs. Campo’s life expectancy would be shortened and that if the recurrence developed, which was medically probable, she would die within a few years after the recurrence.” Post at 139, 627 A2d at 143. Having heard that testimony, the jury nonetheless concluded that Dr. Tama had not been negligent.

Ignored by the dissent are the specific interrogatories that formed the basis for the jury verdict. During the charge on liability, the court did not discuss the possibility of a future cause of action. The first interrogatory was: “Do you find that defendant, Dr. Albert Tama, was negligent?” The second interrogatory had three parts, which were to be answered only if the jury found that Dr. Tama had been negligent. Part (a) of the second interrogatory was: “Do you find that the negligence increased the risk of harm to the plaintiff Maiy Ann Campo and that said increased risk of harm was a substantial factor in causing her ultimate injury?” Parts (b) and (c) asked the jury to calculate the percentage decrease, if any, in Mrs. Campo’s chance of full recovery that any such negligence had caused. Because the jury found that Dr. Tama had not been negligent, it did not answer the second interrogatory.

Contrary to the dissent’s suggestion, post at 139, 627 A2d at 143, the jury knew what it was deciding. It knew that Mrs. *135Campo had suffered a radical mastectomy, reconstructive surgery, and chemotherapy. It also heard testimony from Mrs. Campo’s expert, disputed by Dr. Tama’s expert, that “she would, to a reasonable degree of medical probability, suffer a recurrence of the cancer, and die from its effect....” Post at 136, 627 A 2d at 141.

The dissent disserves the jury by suggesting that it did not understand its own decision. Post at 139, 627 A 2d at 143. The trial court’s passing comment that Mrs. Campo did not suffer from cancer at the time of trial could not have confused the jury. In its charge, the court instructed the jury:

Should cancer develop, then the plaintiff may then bring a separate action for the cancer. But since it does not now exist, the court has ruled that there cannot be any such claim and no award is to be made by you with regard to that. Your determination with regard to negligence and whether there was the increased risk of harm as I have delineated it to you: If that determination is no, either as to one or the other so that you have found no liability, [that determination] will also apply to any future action. [Punctuation altered.]

A fair reading of the instruction supports the conclusion that the jury knew its determination of negligence would bar any future action. In brief, the court instructed the jury that although Mrs. Campo would have a future cause of action if the cancer were to recur, any verdict regarding negligence or increased risk of recurrence would be binding in any such action.

To conclude, we find that because plaintiffs’ expert testified that a recurrence of Mrs. Campo’s cancer was probable, the trial court erred in not allowing plaintiffs to prove damages that plaintiffs would incur were Mrs. Campo to suffer a recurrence. The court also erred in instructing the jury that plaintiffs could maintain a second action if she should suffer a recurrence. Those errors, however, were not capable of producing an unjust result. See R. 2:10-2. We do not reach the question left open in Evers v. Dollinger, 95 N.J. 399, 412, 471 A.2d 405 (1984), whether an unquantified or unquantifíable increase in the risk of harm without a recurrence is an actionable element of damages in a malpractice action. Nor do we reach the question whether the Ayers/Mauro *136Rule applies in medical-malpractice actions in which a recurrence is not reasonably probable.

The judgment of the Appellate Division is affirmed.