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The state Supreme Court ruled last Monday that in a medical malpractice case alleging failure to timely diagnose cancer, plaintiffs need show only that the doctor’s oversight increased the risk of losing the chance for earlier treatment. [See Verdicchio v. Ricca et. al., digested in this issue at page 48.] Kathleen and Vincent Verdicchio alleged that internist Anthony Ricca failed to diagnose bone cancer in time to save their 19-year-old son, Stephen. The plaintiffs’ medical expert testified that he should have been diagnosed in January 1994 when he had lost 17 pounds and was complaining of bowel problems and leg pain. He was not diagnosed until July 1994 and died in May 1995. Ricca had moved to dismiss at the close of the plaintiffs’ case on the ground that they failed to establish proximate cause because they had not shown Stephen could have survived with an earlier diagnosis. Monmouth County Superior Court Judge Alexander Lehrer reserved ruling until after trial. The jury awarded $6.5 million in damages on the survivor action and another $1.5 million on the wrongful death claim, allocating 55 percent of the fault to Ricca. Lehrer then granted the motion to dismiss, along with a motion for judgment notwithstanding the verdict, reasoning that evidence of when the metastasis occurred was necessary to prove that an earlier diagnosis would have made a difference. The Appellate Division affirmed. But the Court voted 4-2 to reinstate the verdict, basing its ruling on the substantial factor test that governs proximate cause analysis when there are concurrent causes of harm. “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,” wrote Justice Virginia Long. Their case “did not depend on proof that Stephen’s cancer had not metastasized in January. Nor were they required to establish statistical probabilities of survival.” Justices Jaynee LaVecchia and Peter Verniero dissented. They agreed with Lehrer that the plaintiffs had not proved causation. They also would have set aside the verdict on the basis that Lehrer’s initial reservation of judgment prejudiced Ricca on damages, since he could not effectively claim he did not commit malpractice while at the same time arguing that his negligence was only partially responsible for the harm. The Court also said that, on remand, the trial court can reassess the quantum of damages, based on Lehrer’s remark, when he set aside the verdict on the causation issue, that its size “shocked [his] conscience.” Remittitur was preferable to a new trial on damages, the Court said.

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