5.50E Pre-Existing
Condition — INCREASED RISK/LOSS OF CHANCE — PROXIMATE CAUSE (Approved 10/2014; Revised 04/2018)
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 Jury 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.
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. To
be a substantial factor, the defendant’s deviation must play a role that is
both relevant and significant in bringing about the ultimate injury. A defendant’s deviation need not be the only
cause, or even a primary cause, of an injury for the deviation to be a
substantial factor in producing the ultimate harm or injury. You, the jury, may decide that any percentage
increase in the risk of harm is substantial.
However, if the deviation was only remotely or insignificantly related
to the ultimate harm or injury, then the deviation does not constitute a
substantial factor.[2]
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 did not deviate from accepted
standards of medical practice, 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 did not deviate from accepted standards of medical practice, then
the defendant is not liable to the plaintiff.[3]
[Add where the allegation is that
the failure to perform a diagnostic test increased the risk of harm:]
If
you determine that the defendant deviated from accepted standards of medical
practice 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 pre-existent 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 pre-existent condition. A plaintiff
may demonstrate an increased risk of harm even if such tests are helpful in a
small proportion of cases.[4]
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 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.
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 Jury Charge 7.31, was error.
CHARGE 5.50E – INTERROGATORIES
(Approved 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?[6]
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?[7]
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? $__________
Source: https://njcourts.gov/attorneys/civilcharges.html
[1] See Reynolds v. Gonzales, supra at 282.
[2] Reynolds, supra 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 pre-existing 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 v. Jiminez,
supra at 31‑32. If there was testimony regarding
specific percentages, it may be appropriate for the court to further tailor the
charge at this point to explain to the jury that a specific percentage increase
in the risk of harm can be considered by the jury to be substantial, and the court
is permitted to use actual percentages testified to by the experts as examples
of what is substantial, but the court is not required to do so.
[3] In Gonzalez v. Silver, et al., 407 N.J. Super.
576, 588 (App. Div. 2009), the court noted:
“…where a physician defendant’s negligence combines with a
patient-plaintiff’s preexistent condition to cause harm, it is reversible error
to instruct the jury on the “but for” proximate cause standard either alone or
in conjunction with the substantial factor test.”
[4] See Gardner
v. Pawliw, supra at
387. In Gardner v. Pawliw, supra,
the Supreme Court applied the increased risk/substantial factor test to the
failure to perform diagnostic testing.
In that case, 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 utero
. . . [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 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.
[6] See Flood v. Aluri-Vallabhaneni, 431 N.J. Super. 365 (App. Div. 2013).
[7] 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.
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