5.50E PRE-EXISTING CONDITION — INCREASED RISK/LOSS OF CHANCE —PROXIMATE CAUSE model jury charge
medical malpractice
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 only in cases where it is alleged that the plaintiff has a pre-existing condition which, by itself, had a risk of causing the plaintiff the harm he/she ultimately experienced in this case. Under the sequence of this charge and accompanying interrogatory, the plaintiff has to prove (1) a deviation from accepted standards of medical practice, (2) that the deviation increased the risk of harm posed by the pre-existing condition, and (3) that the increased risk was a substantial factor in causing the plaintiff’s ultimate injury. The defendant is responsible for all of plaintiff’s injuries unless the defendant can prove (4) what portion of plaintiff’s injuries were the result of the pre-existing condition.
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 Civil Charge uses typical medical negligence theories as illustrative examples.
In cases involving an allegation that the failure to perform a diagnostic test increased the risk of harm from a pre-existing condition, the trial court must also give that portion of the charge derived from Gardner, supra, as indicated below.
Additionally, in Komlodi v. Picciano, 217 N.J. 387 (2014), the Supreme Court addressed the misapplication of a Scafidi charge where the defenses are based on avoidable consequences and/or superseding/intervening causes and not a pre-existing condition.
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In this case, the Plaintiff had a pre-existing condition which, by itself, had a risk of causing the plaintiff the harm he/she ultimately experienced in this case. However, the plaintiff contends that he/she lost the chance of a better outcome because of the Defendant’s deviation from accepted standards of medical practice. [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 deviated from accepted standards of medical practice you must then consider whether the Plaintiff has proven that the deviation increased the risk of harm posed by the Plaintiff’s pre-existing condition.1 You must then consider whether the Plaintiff has proven that the increased risk of harm was a substantial factor in producing the ultimate harm or injury. If the deviation was only remotely or insignificantly related to the ultimate harm or injury, then the deviation does not constitute a substantial factor. However, the defendant’s
1 See Reynolds v. Gonzales, supra at 282.
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risk had been a substantial factor in causing her death.” Gardner v. Pawliw, supra 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, supra. 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 pre-existing 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.
[In all cases continue here:]
If you find that the plaintiff has proven that the defendant deviated from accepted standards of medical practice and that the deviation increased the risk of harm posed by the Plaintiff’s pre-existing condition and was a substantial factor in producing the ultimate harm/injury, the plaintiff is not required to quantify or put a percentage on the extent to which the defendant’s deviation added to all of the plaintiff's final injuries. In cases where the defendant’s deviation accelerated or worsened the plaintiff’s pre-existing 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 injuries can be so apportioned, then the defendant is only responsible for the amount of ultimate harm caused by the deviation.
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
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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 the percentages. The adjustment in damages, which may be required, will be performed by the court.
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NOTE TO JUDGE
The trial court should give an ultimate outcome charge on the apportionment question 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 Model Civil Charge 7.31, was error.
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CHARGE 5.50E – INTERROGATORIES
(04/2014)
JURY INTERROGATORIES
1) Has the Plaintiff proven by the preponderance of the evidence that Dr. _____ deviated from accepted standard of medical practice?
Yes ____ If your answer is “Yes” proceed to question 2.
No ____ If your answer is “No” return your verdict for the defendant.
2) Has the Plaintiff proven that Dr. _____’s deviation from accepted standard of medical practice increased the risk of harm posed by the plaintiff’s pre-existing condition?
Yes ____ If your answer is “Yes” proceed to question 3.
No ____ If your answer is “No” return your verdict for the defendant.
3) Was the increased risk a substantial factor in causing the Plaintiff’s ultimate injury?1
1 See Flood v. Aluri-Vallabhaneni, 431 N.J. Super. 365 (App. Div. 2013).
2 The court may include specific line items for specific categories of damages, such as past/future pain and suffering, medical bills, lost income damages, etc., as may be justified by the evidence.
Yes ____ If your answer is “Yes” proceed to question 4.
No ____ If your answer is “No” return your verdict for the defendant.
4) Has the Defendant met his burden of proving that some portion of the ultimate injury was a result of the pre-existing condition?
Yes ____ If your answer is “Yes” proceed to question 5.
No ____ If your answer is “No” proceed to question 6.
5) State in percentages, what portion of the ultimate injury is a result from:
A. The pre-existing condition. ______ %
B. Dr. _____’s deviation from the accepted standard of medical practice ______ %
Total 100 %
The total must equal 100%.
6) What amount of money would fairly and reasonably compensate the plaintiff for his/her injuries?2
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Total Damages: $__________
7) What amount of money would fairly and reasonably compensate the plaintiff’s spouse [per quod claimant] for his/her loss of services? $__________
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