E. Pre-Existing Condition - Increased Risk/Loss of Chance - Proximate Cause (12/02)
Introductory Note to Judge:
In a series of cases, including Fosgate v. Corona, 66 N.J. 268 (1974); Evers v. Dollinger, 95 N.J. 399 (1984); Scafidi v. Seiler, 119 N.J. 93 (1990); Gardner v. Pawliw, 150 N.J. 359 (1997), and most recently Reynolds v. Gonzales, 172 N.J. 266 (2002), the New Jersey Supreme Court has established a modified standard of proximate cause for use in certain medical negligence cases. The following charge is to be used in cases where it is alleged that the plaintiff has a preexisting condition which creates a risk of harm and the defendant's negligence increases the risk of harm by depriving the plaintiff of a chance of recovery. Furthermore, in Reynolds, supra, the Supreme Court held that failure to specifically explain the charge in the context of the facts of the case was reversible error. Therefore, to assist trial judges and practitioners this Model Charge uses typical medical negligence theories as illustrative examples.
Additionally, in cases involving an allegation that the failure to perform a diagnostic test increased the risk of harm from a preexisting condition, the trial court must also give that portion of the charge derived from Gardner, supra, as indicated below.
In this case, [insert here a detailed factual description of the case, such as, (1) the plaintiff contends that she told the defendant that she felt a lump in her breast in January of 2000, that the defendant was negligent in not ordering a mammogram or other test for cancer until January 2001, and that as a result of the delay the cancer spread to her lungs, liver and brain, and is now likely to cause her death; or (2) the plaintiff contends that her husband went to the defendant hospital emergency room after suffering a heart attack. The plaintiff further asserts that the defendant negligently misdiagnosed her husband's heart attack, and sent her husband home, where he died.]
If you determine that the defendant was negligent, then you must also decide what is the chance that: [(1) the plaintiff would not be dying of cancer; or (2) the plaintiff's husband would not have died of the heart attack et cetera], if the defendant had not been negligent. Thus, if you decide that the defendant was negligent, then you must decide to what extent were the plaintiff's injuries caused by the preexisting medical condition and to what extent were the injuries caused by the defendant's negligence.
When the plaintiff came to the defendant, he/she had a preexisting condition [here describe the condition, e.g., breast cancer; heart attack et cetera] which by itself had a risk of causing the plaintiff the harm he/she ultimately experienced in this case. However, the plaintiff claims that the defendant's negligence increased that risk of harm and contributed to the ultimate injury [here describe the ultimate harm]. To establish that the defendant's negligence was a cause of his/her injuries or damages, the plaintiff must first prove that the defendant's negligence increased the risk of harm posed by plaintiff's preexisting condition.(1)
Second, the plaintiff must prove that the increased risk was a substantial factor in producing the ultimate harm or injury. If the negligent act was only remotely or insignificantly related to the ultimate harm or injury, then the negligent act does not constitute a substantial factor. However, the defendant's negligence need not be the only cause, nor even a primary cause, of an injury for the negligence to be a substantial factor in producing the ultimate harm or injury.(2) Whether the increased risk was a substantial factor is to be reflected in the apportionment of damages between the increased risk and the preexisting condition.(3) If under all of the circumstances here [here insert specific circumstances such as the delay in the diagnosis of the breast cancer or the heart attack] you find that the plaintiff may have suffered lesser injuries if the defendant was not negligent, then the defendant is liable for the plaintiff's increased injuries. On the other hand, if you find that the plaintiff would have suffered the same injuries even if the defendant was not negligent, then the defendant is not liable to the plaintiff.
[Add where the allegation is that the failure to perform a diagnostic test increased the risk of harm:]
If you determine that the defendant was negligent in not having a diagnostic test performed, in this case [here indicate the test(s)], but it is unknown whether performing the test would have helped to diagnose or treat a preexistent condition, the plaintiff does not have to prove that the test would have resulted in avoiding the harm. In such cases the plaintiff must merely demonstrate that the failure to give the test increased the risk of harm from the preexistent condition. A plaintiff may demonstrate an increased risk of harm even if such tests are helpful in a small proportion of cases.(4)
[In all cases continue here:]
If you find that the plaintiff has proven that the defendant was negligent, the plaintiff is not required to quantify or put a percentage on the extent to which the defendant's negligence added to all of the plaintiff's final injuries. In cases where the defendant's negligence accelerated or worsened the plaintiff's preexisting condition, the defendant is responsible for all of the plaintiff's injuries unless the defendant is able to reasonably apportion the damages.(5) If the defendant claims that all or part of the plaintiff's injuries would have occurred anyway, then the defendant, and not the plaintiff, has the burden of proving what percentage of the plaintiff's injuries would have occurred even if the defendant had not been negligent. If the injuries can be so apportioned, then the defendant is responsible only for the amount of ultimate harm caused by the negligence.
For example, if the defendant claims that: [(1) the plaintiff would still have suffered the spread of her cancer even if the diagnosis had been made in January 2001; or (2) that the plaintiff's husband still would have died of a heart attack even if treated earlier], and if the defendant can prove that an apportionment can be reasonably made, separating those injuries the plaintiff would have suffered anyway, even with timely treatment, from those injuries the plaintiff suffered due to the delay in treatment, then the defendant is only liable for that portion/percentage of the injuries the defendant proves is related to the delay in treatment of the plaintiff's original condition. On the other hand, if you find that the defendant has not met the defendant's burden of proving that plaintiff's injuries can be reasonably apportioned, then the defendant is responsible for all of the plaintiff's harm or injury.
When you are determining the amount of damages to be awarded to the plaintiff, you should award damages for all of the plaintiff's injuries. Your award should not be reduced by your allocation of harm. The adjustment in damages, which may be required, will be performed by the Court.
Additional Note to the Judge:
The trial court should give an ultimate outcome charge in conjunction with a Scafidi charge. Fischer v. Canario, 143 N.J. 235, 251 (1996), citing Roman v. Mitchell, 82 N.J. 336, 345 (1980). Noting that the purpose of an ultimate outcome charge is to inform the jury about the impact of its decision, the Fischer Court explained that juries should understand the impact of their findings. Therefore, the Fischer Court concluded that the trial court's failure to give the ultimate outcome charge, as reflected in New Jersey Model Jury Charges (Civil) (Fourth Edition), Section 5.36E, was error.
JURY INTERROGATORIES
1) Did the defendant, Dr. ____________________, deviate from accepted standards of medical practice?
Yes _____ No _____
If your answer is "Yes," proceed to interrogatory 2.
If your answer is "No," return your verdict for the defendant.
2) Did the defendant's, Dr. ________________'s, deviation increase the risk of harm posed by the plaintiff's preexisting condition?
Yes _____ No _____
If your answer is "Yes," proceed to interrogatory 3.
If your answer is "No," return your verdict for the defendant.
3) Has the defendant proven that some portion of the plaintiff's ultimate injury would have occurred, even if the defendant's treatment was proper?
Yes _____ No _____
If your answer is "Yes," proceed to question 4.
If your answer is "No," proceed to interrogatory 5.
4) State whether the increased risk was a substantial factor in causing the plaintiff's damages by stating, in percentages, what portion of the ultimate injury is a result from:
A.The pre-existing condition ______%
B. Dr. ____________'s deviation from the standard of care ______%
Total 100 %
The total must equal 100%. If 100% of the damages are determined to be due to the preexisting condition, then return your verdict for the defendant. If any percentage of the damages are the result of the defendant(s) fault, then proceed to interrogatory 5.
5) What amount of money would fairly and reasonably compensate the plaintiff for his/her:
Past pain and suffering $ __________
Future pain and suffering $ __________
Past medical bills $ __________
Future medical bills $ __________
Past lost income $ __________
Future lost income $ __________
6) What amount of money would fairly and reasonably compensate the plaintiff's spouse [per quod claimant] for his/her loss of services: $ __________
____________________________________________________________
1. See Reynolds v. Gonzales, 172 N.J. 266, 282 (2002).
2. Reynolds, supra, 172 N.J. at 288. The determination of what constitutes a "substantial factor" was analyzed in Velazquez v. Jiminez, 336 N.J. Super. 10 (App. Div. 2000), aff'd. 172 N.J. 240 (2002), where the jury found that 5% of the ultimate injury resulted from a preexisting condition, that a settling defendant contributed to 92% of the ultimate injury and that the non-settling defendant was 3% responsible. The jury awarded damages totaling $2,500,000.00. The trial judge then ruled, sua sponte, that the non-settling defendant was not negligent as a matter of law. In reversing, the Appellate Division held that the jury's finding that a defendant was 3% negligent satisfies the substantial factor test announced in Scafidi, supra. The Velazquez Court cited Dubak v. Burdette Tomlin Memorial Hospital, 233 N.J. Super. 441, 452 (App. Div.) certif. denied 117 N.J. 48 (1989) which held that a finding of 10% fault satisfied the substantial factor test. Velazquez, 336 N.J. Super. at 31-32.
3. Id.
4. See Gardner v. Pawliw, 150 N.J. 359, 387 (1997). In Gardner, supra, the Supreme Court applied the increased risk/substantial factor test to the failure to perform diagnostic testing. In Gardner, supra, the plaintiff's high risk pregnancy was being managed by the defendant. The Gardner Court observed that when the malpractice consists of a failure to perform a diagnostic test, the "very failure to perform the test may eliminate a source of proof necessary to enable a medical expert to testify to a degree of reasonable medical probability concerning what might have occurred had the test been performed." Id. at 380. In such a case, as a matter of public policy, the plaintiffs were entitled to have a jury determine causation. The Court explained:
When the prevailing standard of care indicates that a diagnostic test should be performed and that it is a deviation not to perform it, but it is unknown whether performing the test would have helped to diagnose or treat a preexistent condition, the first prong of Scafidi does not require that the plaintiff demonstrate a reasonable medical probability that the test would have resulted in avoiding the harm. Rather, the plaintiff must demonstrate to a reasonable degree of medical probability that the failure to give the test increased the risk of harm from the preexistent condition. A plaintiff may demonstrate an increased risk of harm even if such tests are helpful in a small proportion of cases. We reach that conclusion to avoid the unacceptable result that would accrue if trial courts in such circumstances invariably denied plaintiffs the right to reach the jury, thereby permitting defendants to benefit from the negligent failure to test and the evidentiary uncertainties that the failure to test created. Id. at 387.
The Court then explained the plaintiff's burden of proof in such cases: Plaintiffs' burden was not to show as a matter of reasonable medical probability that the tests would have revealed the placenta and umbilical cord abnormalities. Plaintiffs' burden was to show that [the defendant's] failure to perform the NST and BPP tests increased the risk that the fetus would die in uteri . . . . [the plaintiff's expert] answered affirmatively when asked whether he could say to a reasonable degree of medical probability that because [the defendant] failed to perform either an NST or a BPP test there had been an increased risk that a condition that could cause the fetus's death would not be recognized. Accordingly, [the plaintiff's expert's] testimony was sufficient for plaintiffs to satisfy their requisite threshold burden of proof that to a reasonable medical probability the failure to perform those two tests increased the risk of harm from the preexistent condition. Plaintiffs should have been permitted to submit for the jury's determination the questions of whether, based on the parties' expert testimony, the failure to give the NST or BPP tests had increased the risk that the fetus's condition would not be detected, treated or corrected and whether that increased risk had been a substantial factor in causing her death." Gardner, at 388-389. See also, Greene v. Memorial Hospital, 299 N.J. Super. 372 (App. Div. 1997), remanded 151 N.J. 67 (1997), rev''d. 304 N.J. Super. 416 (App. Div. 1997).
5. If there is no evidence submitted as to apportionment of damage, then the defendant is responsible for the full injury and all damages. See, Fosgate v. Corona, 66 N.J. 268 (1974). See also, Lanzet v. Greenberg, 126 N.J. 168 (1991), where the Supreme Court reiterated that the defendant has the burden of separating the damages attributable to the preexisting condition from the damages attributable to the negligence. See also, Ginsberg v. St. Michael's Hospital, 292 N.J. Super. 21 (App. Div. 1996), and Golinsky v. Hackensack Medical Center, 298 N.J. Super. 650 (App. Div. 1997). In such cases the Judge should eliminate those paragraphs from the charge relating to apportionment as well as eliminate from the verdict sheet questions relating to apportionment.
