## Facts

- Seventeen-year-old Stephen Verdicchio was treated by his primary-care physician, Anthony Ricca, M.D., over roughly thirteen months for bowel complaints, lethargy, weight loss, and persistent left-leg pain.
- In early 1994, despite significant weight loss and ongoing leg pain, Ricca focused on gastrointestinal issues and did not examine the leg, attributing the pain to track participation.
- After Stephen collapsed at a track meet in May 1994, Ricca noted tenderness and edema in the left leg but did not order imaging.
- By July 1994, Stephen’s leg was swollen and abnormal; after his mother insisted, Ricca referred him to an orthopedist.
- An MRI revealed a leg mass; testing diagnosed osteosarcoma with metastasis to the lungs and abdomen.
- Stephen underwent treatment and died in May 1995.
- Experts testified that earlier diagnosis and treatment could materially improve survival odds, but the medical evidence could not determine when metastasis occurred.

## Issues

1. In a failure-to-diagnose cancer case under New Jersey’s increased-risk doctrine, must plaintiffs prove the cancer had not metastasized at the time of the physician’s deviation to establish proximate cause?
2. Does the increased-risk doctrine require precise statistical quantification of increased risk, or can qualitative expert testimony support a finding that negligence was a substantial factor in the death?

## Decision

- The New Jersey Supreme Court reversed the Appellate Division and the trial court’s judgment notwithstanding the verdict and reinstated the molded jury verdict for plaintiffs.
- The Court held plaintiffs were not required to prove the cancer had not metastasized at the time of the deviation to proceed under the increased-risk doctrine.
- The Court held the lower courts applied an overly narrow view of increased risk and improperly demanded quantification not required by New Jersey law.
- Viewing the evidence most favorably to plaintiffs, the Court found sufficient support for the jury’s findings that Ricca’s negligence increased the risk of harm and was a substantial factor in Stephen’s death.
- The Court left intact the jury’s apportionment between the disease and the physician and the molded damages award.

## Legal Principles

- Under New Jersey’s increased-risk doctrine, proximate cause may be established where negligence increased the risk of the ultimate harm and that increased risk was a substantial factor in producing it.
- A plaintiff need not prove that, absent negligence, the patient would have survived; proof may rest on loss of a chance for a better outcome tied to the ultimate harm.
- Inability to pinpoint the timing of disease progression (including metastasis) does not, by itself, defeat causation when competent expert testimony supports an inference that delayed diagnosis increased the risk of the death that occurred.
- Precise mathematical quantification of increased risk is not invariably required; qualitative expert proof can suffice if it supports a reasonable jury finding on substantial factor causation.
- On a motion for judgment notwithstanding the verdict, courts must view the evidence in the light most favorable to the non-moving party and avoid substituting judicial judgment for the jury’s fact-finding where a reasonable jury could reach the verdict.

## Conclusion

The court reinstated a malpractice verdict based on the increased-risk doctrine, holding that plaintiffs need not prove non-metastasis at the time of deviation or provide exact statistical quantification, so long as expert evidence permits a reasonable jury to find the delayed diagnosis increased the risk of death and was a substantial factor in causing it.


Verdicchio v. Ricca, 179 N.J. 1, 843 A.2d 1042 (2004)