Judges： Clifford
Filed Date： 2/8/1984
Status： Precedential
Modified Date： 10/19/2024
The opinion of the Court was delivered by
In this medical malpractice case the trial court granted defendants’ motion for judgment at the conclusion of plaintiffs’ case because there was no proof of any damages proximately resulting from the defendant doctor’s negligence. See R. 4:40-1. The Appellate Division affirmed, in an unreported opinion. We granted certification, 91 N.J. 523 (1982), and now reverse.
I
Because the trial court granted a judgment at the conclusion of plaintiff’s
With mounting apprehension Mrs. Evers sought another appointment with Dr. Dollinger around the middle of October. Because he was unavailable, his partner, Dr. Ladocsi, examined plaintiff. Mrs. Evers told him about the lump and the bleeding sore. Dr. Ladocsi determined that the sore was an abscess, took a culture of it, and advised plaintiff to await the culture results before seeking a biopsy for the lump because the lump might disappear once the abscess had resolved.
Although the culture results proved “negative for infection,” Mrs. Evers’ fears were not allayed, so she consulted Dr. Angelo DePalo, a physician associated with Memorial Sloan Kettering Cancer Center in New York. When he examined plaintiff on October 26, 1977, Dr. DePalo discovered an infected cyst in the right nipple area as well as a mass above it. He ordered a mammogram, the results of which raised a suspicion of cancer, whereupon plaintiff was admitted to Sloan Kettering where she underwent a right extended mastectomy on October 31,1977. A 1.5 centimeter cancerous growth was removed. The pathologist’s diagnosis was of infiltrating ductal carcinoma of the right breast. Laboratory studies, x-rays and blood tests indicated that the cancer had not yet spread to any distant sites, and all lymph nodes were negative for metastasis.
As of the time of trial in May 1981 Mrs. Evers had taken no medication and had received neither chemotherapy nor radiotherapy, nor had she experienced any recurrence of the cancer. While plaintiff’s appeal was pending determination in this Court, however, we were informed, through motion papers (see supra n. 1, at 399) that Dr. DePalo has now determined that plaintiff has experienced “distant spread of cancer from the original breast cancer * * * [,which] had metastasized”; that he found “breast cancer cells * * * in the lung”; that “Mrs. Evers
II
Plaintiff instituted this action in May 1979, charging that as a result of defendant’s failure to have made an accurate diagnosis and to have rendered proper treatment, her “ailment and condition became aggravated and worsened and she suffered great pain and mental anguish and will continue to do so” and her “physical and mental health were severely impaired * * The specific allegation of malpractice revolves about defendant’s failure to follow the March 1977 examination with a subsequent examination. The claim is not that absent the seven months delay in diagnosis the mastectomy would not have been required. Rather, it is that the delay itself caused both physical and emotional injury, as to both of which there was proof or offers of proof; and further that the delay enhanced the risk that the cancer would recur, requiring additional hospital and medical care — a grave and threatening circumstance that, as we now learn, plaintiff is prepared to prove has come to pass.
In support of these allegations plaintiff established at the trial, through her expert pathologist, Dr. Michael Janis, that the growth removed from Mrs. Evers’ breast in October 1977 was malignant and that “for sure” it had been present in the breast in March. His testimony likewise permitted the reasonable inference that the tumor’s size increased between the time of Dr. Dollinger’s first examination and the subsequent surgery. Further, Dr. Janis concluded that plaintiff was suffering from infiltrating ductal carcinoma, a form of cancer that infiltrates or spreads into the ductal tissue beyond the site of the original tumor.
Finally, in the course of an extended colloquy out of the jury’s presence, Dr. Janis explained a significant statistical phenomenon: that of those patients who have the type of breast cancer from which Mrs. Evers suffered, one out of every four will
To much the same effect was a report, marked for identification, of plaintiff’s examining physician, Dr. Sam Lan. The report was supplied to defense counsel as part of pretrial discovery, JR. 4:17-4(e). In addition to establishing defendant’s deviation from accepted standards of medical care, Dr. Lan was prepared to testify that
[ajssuming the presence of a clinically palpable lump as claimed by the patient at her initial office visit, it is my opinion that the chances of a distant spread of the cancer was increased as a result of the delay of 7 months between the time the patient first saw Dr. Dollinger and the time surgery was performed. The extent to which the patient was endangered cannot be assessed from the [medical records and depositions of plaintiff and Drs. Dollinger and Ladosci].
The trial court refused to admit into evidence the material contained in the foregoing proffers of proof because the experts were unable to quantify the increased risk of recurrence of cancer, holding that “it has to be more probable than not or within a reasonable degree of medical probability that, as a proximate result of any malpractice * * * [plaintiff] would fall within the 25 percentile.” Faced with this ruling, which made evidence of quantification of the increased risk indispensable to plaintiff’s claim of injury, plaintiff’s attorney made a proffer that Dr. Lan, who was scheduled to appear the following day, was now prepared to testify that “because of the delay with a reasonable degree of medical probability, Mrs. Evers would fall into the 25 percentile.” However, defendant objected to the proffer on the ground that in his report Dr. Lan was unable to determine the magnitude of the risk of recurrence and distant spread of the cancer. The report had concluded only that the delay had “increased” the risk. Ruling that Dr. Lan could not
We are satisfied that in the circumstances of this case it was error to enter judgment for defendant at the close of plaintiff’s proofs. First, there was uncontradicted evidence that the malignant breast tumor actually increased in size because of the delay. Further, the disease had developed beyond the site of the original tumor itself into an infiltrating ductal carcinoma. Although claims for these specific injuries may not have been made in haec verba, they were clearly embraced within the four corners of the complaint and there was no objection to their admission on the ground that they went beyond answers to interrogatories. Hence, those proofs alone demonstrated sufficient physical injury to withstand defendant’s motion. Beyond that, plaintiff was prepared to show that she suffered anxiety, emotional anguish and mental distress. These were attributable not solely to her having the cancer but also to the growth of the tumor during the time proper treatment was withheld and from the realization, following the confirmation of her malignancy, that defendant’s delay in her treatment had increased the risk that she would again fall victim, perhaps fatally, to the disease.
Finally, it is now ■ clear that on remand plaintiff will be prepared to prove that the seven months delay increased the risk of recurrence and that such increased risk was a substantial factor in bringing about the condition from which plaintiff now suffers, or, put differently, that the harm of which there was but increased risk has now become a reality. Hence, we need not determine whether the unquantified (and unquantifiable) but nevertheless certain increase in the risk, standing alone, is sufficient injury to sustain plaintiff’s cause of action.
The most patent form of medical injury in this case relates to the growth of the malignant tumor itself. Mrs. Evers testified that she first discovered the lump in her breast in February 1977. Alarmed, she immediately arranged to see Dr. Dollinger. Following her examination by defendant in March 1977 and her discharge with the assurance that the lump was “nothing,” she observed that the lump continued to grow to at least four times in size by the following October. As noted, plaintiffs expert also corroborated the fact that the malignancy grew and had become an infiltrating ductal carcinoma when finally surgically removed and identified. This progressive evolution of the malignancy during the period of delay until plaintiff received proper medical attention, occasioned by defendant’s earlier failed diagnosis, is a cognizable injury and constituted an actionable element of damages.
In Cloys v. Turbin, 608 S.W.2d 697 (Tex.Civ.App.1980), the court reversed a summary judgment in favor of defendant in plaintiff’s action for medical malpractice. Defendant allegedly had failed to biopsy a mole-like growth on plaintiff’s left arm that three months later was diagnosed as malignant melanoma. Plaintiff alleged that defendant’s negligence “was a proximate cause of the malignant melanoma remaining, growing, and spreading in her body, of its not being removed at the earliest possible time * * Id. at 699. The defendant’s expert concluded that plaintiff suffered no compensable damages as a result of defendant’s negligence, asserting that, based upon reasonable medical probability, the malignant melanoma did not spread to other parts of plaintiff’s body during the three months delay in diagnosis, since lymph nodes in the permanent section were negative. Id. at 700. The court rejected this explanation, stating that
it does not negate the possibility, specifically alleged in plaintiffs first amended petition, that the tumor on her arm grew during this period, at least by some*408 imperceptible amount. Accordingly, we hold that an increase in size, no matter how small, would constitute sufficient actual damages to sustain the element of injury in Mrs. Cloys’ cause of action. [Id. at 701.]
Here, the malignant tumor grew significantly, not imperceptibly, during a seven months delay attributable to defendant’s malpractice. Plaintiff clearly established that defendant’s failure to diagnose the tumor prevented her from undergoing a mastectomy to excise the tumor at the earliest opportunity in 1977. As a proximate result of this malpractice, the tumor remained, grew, and spread in her body. An increase in the size of a malignant tumor, by definition, results in the spread of cancer cells into once healthy tissue, and therefore is an injury in and of itself.
The concession on the part of plaintiff that a mastectomy would have been necessitated even if the malignancy had been promptly diagnosed does not derogate from the fact that the malignancy was not promptly diagnosed. As a proximate result of that dereliction by defendant, the tumor not only remained in her body, it grew in size. Plaintiff was unquestionably more
IV
An additional element of injury and damage derives from plaintiff’s claims of anxiety, emotional anguish and mental distress. It will be recalled that plaintiff’s complaint charged that as a result of defendant’s failure to have made a timely and accurate diagnosis and render proper treatment, her “ailment and condition became aggravated and worsened and she suffered great pain and mental anguish, and will continue to do so” and her “physical and mental health were severely impaired * * *.” In response to interrogatories Mrs. Evers detailed present mental distress subsequent to her mastectomy, manifested in “insomnia, weight gain, and fatigue.” She also claimed dermatological problems as well as a periodic twitch and pain in the left eye caused by stress.
On retrial plaintiff should be permitted to present her claims based on mental and emotional injury. Certainly compensable injury in the form of mental pain and suffering in a context of medical malpractice is not new. West v. Underwood, 132 N.J.L. 325 (E. & A.1945). Damages for Mrs. Evers’ emotional and mental suffering should be awarded upon proof that this distress resulted from defendant’s negligent failure to diagnose her tumor and effectuate prompt and proper treatment. See id. at 326. “[C]ourts have come to recognize that mental and emotional distress is just as ‘real’ as physical pain, and that its valuation is no more difficult.” Berman v. Allan, 80 N.J. 421, 433 (1979); see Schroeder v. Perkel, 87 N.J. 53 (1981). Such distress could well encompass concerns over the anticipated future consequences of malpractice. See, e.g., Carter v. Public Serv. Coord. Transp., 47 N.J.Super. 379 (App.Div.1957) (plaintiff entitled to damages for personal injuries including anxiety and worry over possible injuries to her unborn child as the result of her own physical injuries when she fell while attempting to climb steps to board a bus, even though her baby was born normal and healthy three weeks later); Friel v. Vineland Obstetrical & Gynecological Ass’n, 166 N.J.Super. 579 (Law Div.1979) (awarded damages to a mother for the mental distress over possible brain damage to her child as well as damages to the mother for her own physical injuries proximately resulting
Plaintiff’s claim for mental and emotional suffering from delayed diagnosis and treatment will not be diminished or defeated by a demonstration that delay itself was not the cause of her ultimate physical injury. In Ciluffo v. Middlesex Gen. Hosp., 146 N.J.Super. 476 (App.Div.1977), the trial court’s dismissal of plaintiff’s claim against a physician for physical and emotional damages suffered because of a delay in treatment of less than twenty-four hours was reversed, even though plaintiff’s experts could not establish proximate cause between defendant’s negligent delay in diagnosing and treating plaintiff’s neck injury and the subsequent complications suffered by plaintiff. The court observed:
Certainly the jury could have reached the logical conclusion that plaintiffs recovery, hence her pain and suffering, was prolonged by the period of time before proper treatment was undertaken. Although plaintiff proved no other consequences of this delay, she was entitled to be compensated for the pain and suffering endured for the period of the delay, if she proves that Dr. Maddatu was negligent and if plaintiff has not already received full compensation from the settling tortfeasor for all her injuries. [Id. at 481.]
See also Marek v. Professional Health Servs., Inc., 179 N.J.Super. 433 (App.Div.1981) (plaintiff’s x-ray was negligently read as negative when in actuality it disclosed an early, treatable stage of lymphatic cancer. About a year later, plaintiff’s disease process was diagnosed as “a Stage 4 diffuse, well-differentiated lymphocytic lymphoma,” considered a terminal phase as the result of widespread metastasis. The court upheld plaintiff’s recovery for the physical disability and pain and suffering during his lifetime resulting from a delayed diagnosis and treatment).
Plaintiff projected a plausible claim for compensation attributable to emotional and mental injury. The trial court erred in discounting and rejecting evidence of such injury.
Plaintiff’s evidence of physical injury proximately caused by defendant’s malpractice included the growth in size of the tumor and, arguably, the infiltration or the increased infiltration of plaintiff’s cancer into the ducts surrounding the original cancer site. In addition to compensation for these physical injuries, Mrs. Evers also should be able to receive damages for any resultant emotional anguish and mental distress. She has, unfortunately, since the trial and while this appeal was pending, allegedly suffered a recurrence of life-threatening cancer, as revealed by the certification annexed to plaintiff’s motion “for a hearing before the Trial Judge to determine the adequacy of the newly discovered evidence for a new trial”, with this Court “to retain jurisdiction * * * until such time as findings of fact are returned” to us. The certification is by plaintiff’s attorney and contains the information about the recurrence and progression of plaintiff’s cancer as recited supra at 403.
Because of our determination that there must be a retrial, we consider the motion technically moot.
Courts have come to recognize that the difficulties of identifying, defining, and proving injury in certain types of medical malpractice cases justifies the application of a standard of causation that is more flexible than that used in conventional tort claims. See, e.g., Jones v. Montefiore Hosp., 494 Pa. 410, 431 A.2d 920 (1981); Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978).
The Hamil court took pains to distinguish the facts of that case from the more routine tort case, in which the law requires proof that the result complained of probably would not have occurred “but for” the negligent conduct of the defendant. A conspicuous feature of Hamil, and of the case before us, is that defendant was charged with having failed in a duty to protect against harm from another source; hence the fact-finder must consider not only what did occur but also what might have occurred:
Such cases by their very nature elude the degree of certainty one would prefer and upon which the law normally insists before a person may be held liable. Nevertheless, in order that an actor is not completely insulated because of uncertainties as to the consequences of his negligent conduct, Section 323(a) [of Restatement (Second) of Torts] tacitly acknowledges this difficulty and permits the issue to go to the jury upon a less than normal threshold of proof. [Id. 481 Pa. at 271, 392 A.2d at 1287-88 (footnote omitted).]
The Hamil court held that once a plaintiff has demonstrated that a defendant’s negligent act or omission has increased the risk of harm to another and that the harm was in fact sustained, such evidence is sufficient to create a jury question as to whether the increased risk was in turn a substantial factor in producing the resultant harm.
The Pennsylvania court applied this analysis in a cancer malpractice case, Gradel v. Inouye, supra, 491 Pa. 534, 421 A.2d 674, in which plaintiff alleged that in early fall of 1964 defendant failed to take reasonable steps to diagnose and remove lumps from her child’s forearm. Plaintiff consulted another doctor who in November 1965 detected and removed a cancerous mass in the child’s bone. Unfortunately, the cancer’s recurrence at that site necessitated amputation in December 1966. Plaintiff’s medical expert testified that a biopsy should have been performed much earlier and that the defendant’s failure to have diagnosed the fibrosarcoma (cancer of the bone) allowed it to
[M]edical opinion need only demonstrate, with a reasonable degree of medical certainty, that defendant’s conduct increased the risk that the harm sustained by plaintiff would occur. The jury, not the medical expert, then has the duty to balance probabilities and decide whether defendant’s negligence was a substantial factor in bringing about the harm. * * * In [plaintiff’s expert’s] opinion, * * * if the fibrosarcoma had been [detected and] removed earlier, the recurrence which necessitated the amputation would have been less likely. We conclude that the expert medical testimony here constituted sufficient evidence from which the jury could have found that [defendant’s] negligence was a substantial factor in producing the harm. [Id. at 544-545, 421 A.2d at 679 (emphasis in original, citation and footnote omitted).]
The Pennsylvania Supreme Court again addressed the issue of causation in connection with a case in which plaintiff alleged that defendant had failed properly to diagnose and treat her breast cancer. In Jones v. Montefiore Hosp., supra, 494 Pa. 410, 431 A.2d 920, defendants either failed to remove the mass in plaintiff’s breast during a scheduled biopsy or to diagnose and treat a later discovered mass. Almost two years later, the mass was diagnosed as cancer and removed in a modified radical mastectomy. By that time the cancer had metastasized to a lymph node. There was expert testimony that even if the mass had occurred after the original biopsy, if it had been diagnosed and removed earlier, probably the cancer would not have metastasized or spread to a lymph node. The court characterized this inference as reasonable.
From this evidence, the jury might well have concluded that the failure either to remove the original mass or to properly test and treat a new mass prevented early detection and thereby increased the risk of mastectomy or, at the very least, increased the risk that cancer would metastasize. [Id. at 419, 431 A.2d at 925.]
The court concluded that the jury should have been instructed to impose liability if it decided that defendant’s negligent conduct increased the risk of harm and that such increased risk was a substantial factor in bringing about the harm actually inflicted upon plaintiff, “whether or not the medical testimony as to
The foregoing authorities, which we view as persuasive, find their provenance in Hicks v. United States, 368 F.2d 626 (4th Cir.1966), involving an action under the Federal Tort Claims Act for damages resulting from the death of a 25-year-old woman from an undiagnosed bowel obstruction. Plaintiff’s action was grounded in the theory, supported by uncontradicted expert testimony, that if operated on promptly, the decedent would have survived. Defendant argued that there was insufficient evidence that the admittedly erroneous diagnosis- was a proximate cause of the decedent’s death, and that even if surgery had been performed immediately, it would amount to no more than speculation to say that it would have been successful. Rejecting that argument the Court of Appeals, in a passage frequently quoted, said:
When a defendant’s negligent action or inaction has effectively terminated a person’s chance of survival, it does not lie in the defendant’s mouth to raise conjectures as to the measure of the chances that he had put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly. [328 .F.2d at 632 (emphasis in original).]
Applying the principles extracted from these cases, we hold that on remand plaintiff should be permitted to demonstrate, within a reasonable degree of medical probability, that the seven months delay resulting from defendant’s failure to have made an accurate diagnosis and to have rendered proper treatment increased the risk of recurrence or of distant spread of plaintiff’s cancer, and that such increased risk was a substantial factor in producing the condition from which plaintiff currently suffers. We hold further that Restatement (Second) of Torts § 323(a) is applicable to medical malpractice cases.
Reversed and remanded.
Plaintiff Richard Evers sues per quod. As used in this opinion, “plaintiff’ refers to Merle Evers.
The only defendant involved in this appeal is Kenneth Dollinger, M.D., and reference to “defendant” is to Dr. Dollinger.
Closely related to the fact that the tumor increased in size as a result of the seven months delay is the additional circumstance that diagnosis of the cancer when it was finally revealed was that of infiltrating ductal carcinoma. According to plaintiffs expert, this indicated that “there was a tumor inside the ducts of the breast which spread beyond the duct and infiltrated into the surrounding tissue.” Infiltrating ductal carcinoma indicates a spread of cancer outside the ducts where the disease originated, and is considered a graver condition than intraductal carcinoma. Feig, Schwartz, Nerlinger & Edeiken, “Prognostic Factors of Breast Neoplasms,” 133 Radiology 577, 578 (1979) [hereinafter cited as Feig]; see also Silverberg and Chítale, “Assessment of Significance of Proportions of Intraductal and Infiltrating Tumor Growth in Ductal Carcinoma of the Breast,” 32 Cancer 830, 834 (1973) (finding that mortality increased as progressive proportions of infiltrating to intraductal growth were attained. “The prognosis is excellent — with no known cancer deaths — for pure intraductal carcinoma, not quite as good for tumors with less than 10% infiltration, worse for tumors in the broad range of 10-89% infiltration, and significantly poorer still for tumors showing 90-100% infiltration.”).
Delay in treatment almost invariably results in a more serious prognosis. Clinical Onocology for Medical Students and Physicians at 41 (P. Rubin 3d ed. 1970-1971) (“Even in breast cancer, while it is difficult to show by overall figures that early diagnosis improves prognosis, there is definitely a higher prognosis associated with small tumors and limited or no ancillary node involvement. Both of these must be related to the passage of time. * * * Generally, the larger the tumor of a given organ, the worse the prognosis.” (emphasis in original)); Feig, supra, 133 Radiology at 578 (“The correlation between tumor size and prognosis has been repeatedly demonstrated in numerous clinical studies. * * * Patients with smaller lesions have a much greater likelihood of long-term survival.”); see also Diagnosis and Treatment of Breast Cancer at 21 (Lewison, Montague, Williams & Wilkins eds. 1981).
This information was furnished by counsel at the Court’s request following argument. It is mentioned simply to show that defendant cannot fairly assert that plaintiff did not present a claim for mental and emotional injury as a result of his malpractice upon her.
The trial court restricted testimony of conversations between the plaintiff and others concerning her tumor to the mere physical fact of its existence. Such conversations were relevant and admissible as evidencing Mrs. Evers’ state of mind and mental suffering. McCormick, Evidence § 294 at 695 (E. Cleary 2d ed. 1972); R. 63(12)(a).
Whether “increased risk,” standing alone, is an actionable element of damage in a malpractice case is a provocative question the determination of which we leave for an appeal that requires, as this case does not, the answer.
One commentator suggests that the increased risk need not be quantified in order to calculate compensation for the loss of the chance' of surviving. King, “Causation, Valuation & Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences,” 90 Yale L.J. 1353 (1981). His illustrations reveal, however, that the harm for which he advocates redress is not the increased risk per se, but rather a harm such as death or bodily injury occasioned in part by the increased risk. A patient who dies from a heart attack, writes King, would have a cause of action against the physician who had misdiagnosed the condition, even though the patient would have had only a 40% chance of survival with a timely diagnosis. King would award compensation equal to 40% of the value of the victim’s life had he lived. Id. at 1382.
See also Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974), in which the court found excessive a jury verdict for the father of a ten-year-old boy who was hit by a car while bicycling. In the course of its opinion, the court*413 reaffirmed the rule that future damages are not compensable unless proven to a reasonable degree of medical certainty.
Justice Neely, though concurring in the result, differed with the majority about the standard for future damages. 210 S.E.2d at 640-41. He criticized the majority’s rule as being rooted in an earlier time of less familiarity with probability and statistics. Id at 640. In its place, Justice Neely proposed what he called “The Lady or the Tiger Rule,” referring to the story of the young man who was placed in the arena by an evil king and forced to choose one of two doors, behind one of which was a beautiful woman and behind the other a ferocious, hungry tiger:
[I]t is possible to conceptualize the possibility of future medical expenses as a separate injury, in very much the same way that requiring a man to stand in the arena and open one of two doors is in and of itself a separate injury.
Therefore, in a hypothetical case, if a man can demonstrate that there is a twenty percent probability that he will have future injuries which would, if they occurred, result in damage to him in the amount of a hundred thousand dollars, he should be able to recover twenty thousand dollars from the defendant, which recovery would represent the injury of incurring a twenty percent probability of suffering one hundred thousand dollars worth of damages. [Id. at 64, 210 S.E.2d at 640-41.]
For an exhaustive discussion of Hamil v. Bashline, supra, as well as other pertinent authorities, see Herskovits v. Group Health, 99 Wash.2d 609, 664 P.2d 474 (1983), and id. at 619, 664 P.2d at 479 (Pearson, J., concurring), id. at
Restatement (Second) of Torts § 323(a) provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise suc-h care increased the risk of such harm
This section and its predecessor have been a fixture in our law for more than twenty years, although not in the context of a medical malpractice case. See Brooks v. New Jersey Mfrs. Ins. Co., 170 N.J.Super. 20 (App.Div.), certif. den., 81 N.J. 413 (1979); Jackson v. New Jersey Mfrs. Ins. Co., 166 N.J.Super. 448 (App.Div.), certif. den., 81 N.J. 330 (1979); Viducich v. Greater N.Y. Mut. Ins. Co., 80 N.J.Super. 15 (App.Div.), certif. den., 41 N.J. 129 (1963).