Judy Komlodi v. Anne Picciano, M.D. (071301) , 217 N.J. 387 ( 2014 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader.
It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion
may not have been summarized).
Judy Komlodi v. Anne Picciano, M.D. (A-13-12) (071301)
Argued October 7, 2013 -- Decided May 20, 2014
ALBIN, J., writing for a unanimous Court.
This appeal concerns the propriety of a jury charge on causation in a medical malpractice action.
Defendant Dr. Anne Picciano prescribed a Duragesic patch to treat Michelle Komlodi, a patient suffering from chronic back
pain who was known to abuse drugs and alcohol. The Duragesic patch is intended to be applied to the outer skin and to release the
powerful pain medication fentanyl over a seventy-two hour period. Michelle orally ingested the Duragesic patch, causing a severe and
permanent brain injury. Michelle’s mother, as guardian for her incapacitated daughter, filed a medical malpractice action against Dr.
Picciano and her employer. The primary focus of the trial was whether Dr. Picciano breached the governing duty of care in prescribing
a Duragesic patch to Michelle, a known abuser of drugs and alcohol, and whether Dr. Picciano, Michelle, or both were substantial
factors in causing Michelle’s injury. The trial court charged the jury on avoidable consequences and superseding/intervening causation,
but not on comparative negligence. The court also provided a preexisting condition charge, also known as a Scafidi1 charge, instructing
the jury to consider whether, based on the patient’s preexisting condition, prescribing the Duragesic patch increased the risk of harm to
the patient and whether it was a substantial factor in causing the ultimate injury.
The jury found that plaintiff proved that Dr. Picciano deviated from the applicable standard of care and that the deviation
increased the risk of harm posed by Michelle’s preexisting condition. Because the jury also found that plaintiff did not prove that the
increased risk was a substantial factor in producing Michelle’s medical condition, however, based on the Scafidi charge, Dr. Picciano
did not bear legal fault in causing Michelle’s brain injury. A no-cause verdict was therefore entered in defendants’ favor. In a split
decision, the Appellate Division overturned the verdict and remanded for a new trial. The majority found that the trial court erred by
providing the jury a Scafidi charge and a superseding/intervening cause charge, and by including the concept of “but for” causation in
its proximate cause instruction. Judge Ashrafi, dissenting, disagreed that the Scafidi charge was improper, stating that Michelle’s drug
addiction was irrefutably a preexisting condition that was a proximate cause of her ingestion of the patch causing her brain injury. He
also considered the trial court’s reference to “but for” causation harmless error. In his opinion, “[t]he jury’s verdict was based on the
evidence and on correct instructions as a whole,” and accordingly there was no justification to reverse the no-cause verdict. Defendants
appealed as of right under Rule 2:2-1(a).
HELD: The trial court erred in providing a preexisting condition jury charge under the circumstances of this case and, even if the
Scafidi charge were appropriate, it suffered from multiple defects. The trial court was correct to charge the jury on avoidable
consequences and superseding/intervening causation, and not comparative negligence, but improperly referenced “but for” causation in
its instruction on proximate cause. Throughout the causation charge, the trial court failed to tailor the complex concepts of causation to
the theories and facts advanced by the parties.
1. To ensure that the jury understands its task of deciding issues of liability and apportionment of damages, the court must provide
accurate, clear, and understandable instructions on the law tailored to the theories and facts of the case. In a medical-malpractice action,
the plaintiff has the burden of proving the relevant standard of care governing the defendant-doctor, a deviation from that standard, an
injury proximately caused by the deviation, and damages suffered from the defendant-doctor’s negligence. In this case, the jury found
that Dr. Picciano deviated from the applicable standard of care. At issue is the propriety of the trial court’s jury charge on causation.
(pp. 26-29)
2. A tortfeasor is generally only liable for the harm she actually caused to the plaintiff. In cases where the plaintiff is responsible for the
harm she suffers, in whole or in part, the doctrines of comparative negligence, avoidable consequences, and superseding/intervening
1
Scafidi v. Seiler, 119 N.J. 93 (1990).
1
causation may serve to absolve or limit the defendant’s liability. The comparative-negligence statute permits recovery, and
apportionment of damages, so long as the plaintiff’s “negligence was not greater than the negligence of the person against whom
recovery is sought.” N.J.S.A. 2A:15-5.1. Thus, if the plaintiff’s negligence is fifty-one percent and defendant’s is forty-nine percent,
the plaintiff receives no recovery. Comparative negligence “comes into action when the injured party’s carelessness occurs before
defendant’s wrong has been committed or concurrently with it.” Ostrowski v. Azzara, 111 N.J. 429, 438 (1988). In contrast, the
doctrine of avoidable consequences applies when a plaintiff’s carelessness that occurs after the defendant’s tortious act causes plaintiff
additional harm. Id. at 438, 441. Unlike comparative negligence, avoidable consequences is not a defense to liability and serves only to
mitigate damages. In Ostrowski, the Court held that trial courts “must avoid the indiscriminate application of the doctrine of
comparative negligence (with its fifty percent qualifier for recovery) when the doctrines of avoidable consequences or preexisting
condition apply.” Id. at 441. In the present case, an avoidable consequences jury charge without a comparative negligence charge was
appropriate because plaintiff ingested the Duragesic patch after Dr. Picciano allegedly violated the standard of care by prescribing the
patch. (pp. 29-33)
3. When a patient is treated for a preexisting condition and a physician’s negligence worsens that condition, it may be difficult to
identify and prove the precise injury caused by the physician. To address this scenario, in Scafidi the Court held that a jury must decide
whether any “negligent treatment increased the risk of harm posed by a preexistent condition” and, if so, “whether the increased risk
was a substantial factor in producing the ultimate result.” 119 N.J. at 108. In the typical Scafidi case, the plaintiff seeks treatment for a
preexisting condition and the physician negligently fails to diagnose or treat the condition, causing the preexisting condition to progress
and worsen. The amount of damages caused by the aggravation of the preexisting condition due to the physician’s negligence is “the
value of the lost chance of recovery.” Id. at 112. Unlike the doctrines of comparative negligence, avoidable consequences, and
superseding/intervening causation, Scafidi-type cases generally do not implicate fault on the part of the plaintiff. Here, it is Michelle’s
failure to properly use the Duragesic patch after Dr. Picciano’s alleged negligence that is at issue. Because the Scafidi charge was used
to allocate fault, not just damages, it served as a substitute for the comparative-fault charge -- without the fifty-one percent fault bar.
The Scafidi charge also had the capacity to confuse the jury because it became blurred with the charge on avoidable consequences and
superseding/intervening cause. In addition, even if the Scafidi charge were appropriate, the trial court improperly failed to tailor the
legal theories and facts of this case to the law on preexisting conditions or to identify the specific preexisting condition or disease at
issue. The misapplication of the Scafidi charge requires a remand for a new trial. (pp. 33-38)
4. Although the panel majority was correct in asserting that “if Michelle’s deliberate act was foreseeable, then it was not a superseding
cause,” that is not a sufficient reason for not instructing the jury on superseding/intervening cause. Foreseeability is a constituent part of
proximate cause. If an injury is not a foreseeable consequence of a person’s act, then a negligence suit cannot prevail. A superseding or
intervening act is one that breaks the “chain of causation” linking a defendant’s wrongful act and an injury suffered by a plaintiff.
Cowan v. Doering, 111 N.J. 451, 465 (1988). Intervening causes that are “foreseeable” or the “normal incidents of the risk created,”
however, will not break the chain of causation and relieve a defendant of liability. Model Jury Charge (Civil) § 6.14 (Aug. 1999). Thus,
the concepts of foreseeability and superseding/intervening causation are inextricably interrelated and the jury needs to have a full
understanding of both. Although the trial court here was correct to charge the jury on both concepts, it failed to help the jury sort
through the complex issues by molding its charge to the facts of the case. The jury had to determine whether, given Michelle Komlodi’s
medical history of addiction, her oral ingestion of the Duragesic patch was “reasonably foreseeable or was . . . a remote or abnormal
incident of the risk of self-injury that was not otherwise reasonably foreseeable by defendants.” Cowan, 111 N.J. at 465. Intertwined
with that question was whether Michelle’s act was “volitional and not attributable to [her] disorder or condition.” Ibid. (pp. 38-43)
5. The trial court also failed to tailor the avoidable-consequences charge to the legal theories and facts presented. The avoidable-
consequences charge will only be meaningful to a jury hearing this case if it addresses the special circumstances presented here --
plaintiff’s capacity to act reasonably to care for herself in light of her drug and alcohol addiction. To that end, the Court provides a
recommended charge. Finally, the trial court improperly referenced “but for” causation during its instruction on proximate cause. A
“but for” charge is appropriate when there is only one potential cause of the harm or injury. In contrast, the “substantial factor” test is
given when there are concurrent causes potentially capable of producing the harm or injury. The substantial-factor test should be used to
decide proximate cause at the new trial. (pp. 44-48)
The judgment of the Appellate Division is AFFIRMED and MODIFIED, the no-cause verdict is VACATED, and the matter
is REMANDED to the trial court for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and PATTERSON and JUDGES RODRÍGUEZ and CUFF
(both temporarily assigned) join in JUSTICE ALBIN’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-13 September Term 2012
071301
JUDY KOMLODI, as Guardian for
MICHELLE KOMLODI, an
incapacitated person,
Plaintiff-Respondent,
v.
ANNE PICCIANO, M.D. and JFK
MEDICAL CENTER,
Defendants-Appellants.
Argued October 7, 2013 – Decided May 20, 2014
On appeal from the Superior Court, Appellate
Division.
Gary L. Riveles argued the cause for
appellants (Dughi, Hewit & Domalewski,
attorneys).
John B. Collins argued the cause for
respondent (Bongiovanni, Collins & Warden,
attorneys).
E. Drew Britcher argued the cause for amicus
curiae New Jersey Association for Justice
(Britcher, Leone, & Roth, attorneys; Mr.
Britcher and Kristen B. Miller, on the
brief).
JUSTICE ALBIN delivered the opinion of the Court.
In medical malpractice cases, juries are often called on to
sift through mounds of testimonial evidence, including expert
testimony, and to absorb complex legal theories on duty of care
1
and causation. Juries cannot fulfill the difficult task of
rendering a fair and just verdict without accurate, clear, and
understandable instructions on the law. That guidance must be
provided by our trial courts. Our courts must explain how the
legal principles apply to the facts and the parties’ competing
arguments in a charge that is accessible and comprehensible to
citizens not trained in the law. This is not an easy
undertaking, but it is a necessary one.
In the present case, a family-care physician prescribed a
powerful medication, a Duragesic patch, to treat a patient who
suffered from chronic back pain -- a patient who also was known
to abuse alcohol and drugs. The seventy-five-microgram
Duragesic patch is intended to be applied to the outer skin and
to release the drug fentanyl over a seventy-two hour period.
The patch has the potency of eighty Percocet tablets. The
patient orally ingested the Duragesic patch, causing a severe
and permanent brain injury.
The complaint in this medical malpractice action alleges
that the physician breached the governing duty of care by
failing to protect a patient with a history of alcohol and drug
abuse from self-injury. The central issue in this appeal from
the jury’s no-cause verdict concerns various portions of the
trial court’s charge on causation.
The trial court charged the jury on “preexisting disease or
2
condition,” also known as a Scafidi2 charge. The Scafidi charge
is typically used in medical malpractice cases in which
progressive diseases, such as cancer, are not properly treated
or timely detected and thus the measure of damages is the
patient’s lost chance of recovery. The jury here was instructed
to consider whether, based on the patient’s preexisting
condition, prescribing the Duragesic patch increased the risk of
harm to the patient and whether it was a substantial factor in
causing the ultimate injury. The trial court, however, never
identified in its jury charge the preexisting condition or
related the facts to the law as required by the Model Jury
Charge. This case, moreover, did not involve the ineluctable
progression of a disease on its own. The ultimate harm caused
to the patient was from her own conduct -- whether volitional or
not -- after the physician prescribed the Duragesic. For that
reason, the court also charged the jury on
superseding/intervening causation and avoidable consequences.
The Appellate Division, in a split decision, overturned the
verdict and remanded for a new trial, finding that the trial
court erred in giving the Scafidi charge and, in any event,
failed to articulate for the jury the nature of the preexisting
condition or explain the proofs and parties’ arguments in
relation to the law. The panel majority also determined that
2
Scafidi v. Seiler, 119 N.J. 93 (1990).
3
the court should not have given a superseding/intervening cause
charge because the general charge on foreseeability was
sufficient. Additionally, it pointed out that the court had
mistakenly included the concept of “but for” causation in a case
involving concurrent causes.
We agree with the panel majority that the trial court
misapplied the Scafidi charge. This was not the traditional
lost-chance-of-recovery case. The Scafidi charge, moreover, was
given for a purpose not intended by our preexisting-condition
jurisprudence. Indeed, the defense -- as was made clear in
summation -- was based on superseding/intervening causation and
avoidable consequences, not preexisting condition. We also
agree with the panel majority that, throughout the charge, the
trial court failed to explain the complex concepts of causation
in relation to the proofs and legal theories advanced by the
parties.
We part ways with the panel majority’s conclusion that the
charge on superseding/intervening causation was unnecessary in
light of the general charge on foreseeability. To the contrary,
the superseding/intervening causation charge, if properly given,
had the capacity to focus the jury’s attention on the
differences between the parties’ contentions. Last, the “but
for” causation reference apparently was an inadvertent mistake
to which no objection was made by either party.
4
We therefore affirm and modify the judgment of the
Appellate Division and remand for a new trial.
I.
A.
Plaintiff Judy Komlodi, as guardian for her incapacitated
daughter, Michelle, filed a medical malpractice action against
defendants Dr. Anne Picciano and JFK Medical Center. The
malpractice action arises from the treatment of Michelle by Dr.
Picciano at the hospital’s outpatient and behavioral health
clinic. Dr. Picciano was presented with a thirty-one-year-old
woman who complained of back pain and suffered from depression,
anxiety, and drug and alcohol addiction. Plaintiff alleges that
Dr. Picciano negligently prescribed a Duragesic patch to treat
Michelle’s back pain, disregarding the real prospect that her
drug-addicted daughter would abuse the medication. Indeed,
Michelle orally ingested the contents of the patch, which led to
respiratory arrest and anoxic brain damage, causing severe and
permanent disabilities.
The case was tried to a jury. Here is a summary of the
testimony heard by the jury.
B.
The primary focus of the trial was whether Dr. Picciano
acted with reasonable care in prescribing a Duragesic patch to
5
Michelle and whether Dr. Picciano, Michelle, or both were
substantial factors in causing the tragic outcome. Before
reciting a narrative of events, we begin with a brief
description of the Duragesic patch, as described by Dr. Picciano
with reference to the Physician’s Desk Reference (58th ed.
2004).
The Duragesic patch contains the powerful pain medication
fentanyl, an opioid analgesic, in a gel form. The patch is
attached to the skin and is designed to release seventy-five-
micrograms of fentanyl per hour over a seventy-two-hour period.
The Duragesic patch is not intended for “the management of mild
or intermittent pain that can otherwise be managed by lesser
means,” but rather for the treatment of chronic pain that does
not respond to Percocet, a medication for the relief of moderate
to moderately severe pain. The seventy-five-microgram Duragesic
patch is the equivalent of eighty Percocets. One side effect of
the Duragesic patch is suppression of the respiratory system.
C.
Dr. Picciano was an employee of JFK Medical Center
specializing in family medicine and held the position of
Associate Director of the Family Practice Center. Michelle had
been Dr. Picciano’s patient as a teenager, at a time when
Michelle was being treated by other doctors for drug addiction
and depression. On June 7, 2004, Mrs. Komlodi, a former
6
nonmedical employee of the Family Practice Center, brought
Michelle, then age thirty-one, to Dr. Picciano for an
examination.
June 7, 2004
That day, Dr. Picciano learned from Michelle that she had
been suffering from lower back pain for six months and had
experienced insomnia, depression, fatigue, anxiety, shortness of
breath, and weight gain. Michelle also told of having “passive
suicidal ideation” and of cutting her wrists two weeks earlier.3
Michelle related that her back pain began after she stopped
using heroin and that she did not find relief by taking Aleve,
Advil, or Tylenol. Michelle admitted that she was self-
medicating with alcohol and drugs, such as Percocet and
Duragesic patches, which were given to her by a friend.
At trial, Dr. Picciano acknowledged that bodily pains,
anxiety, depression, and medication craving are all symptoms of
drug withdrawal. She also acknowledged that an addict’s craving
can overcome her will. Dr. Picciano understood the medical uses
and the potential abuse of the Duragesic patch. Too high a
dose, Dr. Picciano explained, can stop a patient from breathing.
Moreover, Dr. Picciano understood that the use of the patch with
other depressants, such as alcohol, could fatally compromise the
3
Some of this information was related to a nurse and written on
Michelle’s medical chart, which was reviewed by Dr. Picciano.
7
central nervous system. She realized that because the Duragesic
patch might be a medication sought by addicts, it should be
prescribed with caution to those with a history of alcohol or
drug abuse. At the time that she treated Michelle, Dr. Picciano
also was aware that the Duragesic patch could be cut open and
the fentanyl directly accessed by an addict. However, the
Duragesic manufacturer did not explicitly warn of this potential
for its abuse until 2005.
Dr. Picciano ordered an x-ray, seeking to determine the
source of Michelle’s back pain, and blood work. Given
Michelle’s revelations, she also advised Michelle to contact
Rutgers Behavioral Health. No medications were prescribed.
Three days later, Michelle’s blood-test results suggested that
she might have hepatitis C, a disease that poses a serious
danger to the liver.
June 18, 2004
On June 18, Mrs. Komlodi informed Dr. Picciano that
Michelle did not have insurance coverage for Rutgers Behavioral
Health and that Michelle was scheduled for an appointment at JFK
Behavioral Health Center on July 21 -- more than a month later.
Mrs. Komlodi expressed concern that, in the intervening month,
Michelle needed medication to treat her depression. Dr.
Picciano knew that a patient who suffers from depression and
presents a “complicated history with addiction” needs
8
“comprehensive care from a mental health facility.”
Nevertheless, she “reluctantly” agreed to prescribe the anti-
depressant Zoloft as a bridge until Michelle’s mental health
appointment. Dr. Picciano arranged for Mrs. Komlodi to hold the
pills and give her daughter only one-half a pill every day for
the first week.
July 22, 2004
At Michelle’s appointment on July 22, Michelle told Dr.
Picciano that she had missed her appointment at JFK Behavioral
Health Center the day before and had rescheduled it for August
4. She also told Dr. Picciano that she was still experiencing
lower back pain, with the pain registering a “9” on a scale of
one to ten, and that she was taking “Zoloft that she had gotten
as samples.” Michelle had yet to fill the legitimate
prescription of Zoloft given to her by Dr. Picciano. Michelle
stated that, at various times, she was taking Percocet,
“routinely” using seventy-five-microgram Duragesic patches, or
consuming “at least” ten alcoholic drinks a day.
Dr. Picciano explained at trial that, in light of
Michelle’s hepatitis C diagnosis and the inflammation of her
liver, the continued use of alcohol presented the greatest
immediate threat to her life because of its potential to damage
her liver. Dr. Picciano could not identify whether the source
of Michelle’s back pain was a prior automobile accident or
9
depression and anxiety. Her objective was to stop Michelle from
treating her pain with alcohol. Percocet was ruled out as an
appropriate medication because Michelle might take more than the
prescribed dose or combine it with alcohol. Dr. Picciano was
aware that Michelle was procuring illicit drugs, including
Duragesic patches and Percocet, and abusing alcohol.
Because Michelle’s mental health appointment was two weeks
away, Dr. Picciano decided to provide a steady level of
immediate relief for her back pain by prescribing ten seventy-
five-microgram Duragesic patches -- a quantity that would last
for thirty days. Dr. Picciano warned Michelle that she could
not drink alcohol while using the Duragesic patch. Michelle
assured Dr. Picciano that she would not. It was Dr. Picciano’s
assessment that Michelle would not use illicit drugs or alcohol
if she were on a Duragesic regimen of pain relief. Indeed, Dr.
Picciano would never have prescribed the Duragesic patch for
Michelle if she believed Michelle would continue to use alcohol.
Dr. Picciano rejected the possibility that Michelle was engaged
in drug-seeking behavior.
July 29, 2004
One week after that appointment, Dr. Picciano received a
telephone call from Mrs. Komlodi who stated that Michelle had
been binge drinking and was complaining of severe stomach pains.
Dr. Picciano told Mrs. Komlodi to take her daughter immediately
10
to the emergency room at JFK Medical Center. There, a blood
test revealed that Michelle was pathologically intoxicated. She
registered a 0.36 percent blood alcohol concentration, an amount
four-and-one-half times the legally permissible limit for
driving.4 In addition, her urine tested positive for cocaine.
Michelle advised the emergency room intake unit that she had
been prescribed fentanyl for “outpatient detox,” but had yet to
fill the prescription.
Dr. Picciano called her partner, Dr. Sherrod Patel, who was
the attending physician for her practice group at JFK Medical
Center at that time. Dr. Picciano described Michelle’s case to
Dr. Patel and told him to expect her arrival in the emergency
room. She also told Dr. Patel that Michelle required
psychiatric intervention and that he should try to transfer her
to an inpatient unit. Michelle was admitted to the hospital
overnight and released the next day. Dr. Picciano did not
cancel the Duragesic prescription.
Despite the emergency-room chart indicating that Michelle
had yet to fill the Duragesic prescription, Dr. Picciano not
only assumed that she had filled it, but also that she had begun
using the patches. Dr. Picciano nevertheless made no attempt to
prevent Michelle from continuing to use the prescribed
4
N.J.S.A. 39:4-50(a) (defining “[d]riving while intoxicated” as
“operat[ing] a motor vehicle with a blood alcohol concentration
of 0.08% or more”).
11
Duragesic, nor did she make any notation in Michelle’s chart to
alert her practice group that Michelle had been abusing alcohol.
August 2, 2004
Just four days after her release from the hospital, on the
morning of August 2, Michelle consumed “half a pint of
blackberry red and half a pint of vodka mix.” During the day,
Michelle told her mother that her back was bothering her and
that she had called the pharmacy to fill one half of the
Duragesic prescription. (Five patches cost $250 whereas ten
cost $500.) Mrs. Komlodi drove her daughter to pick up the
prescription. The pharmacist called Dr. Picciano’s office to
request permission to reduce the number of Duragesic patches
from ten to five. A doctor in Dr. Picciano’s practice group
gave approval, dutifully noting this act in Michelle’s chart.
Nothing in the chart warned against prescribing fentanyl.
From the pharmacy, Mrs. Komlodi, her two-year-old
granddaughter, and Michelle drove to a doctor’s office where
Mrs. Komlodi had an appointment. Michelle agreed to babysit the
toddler in the waiting room. In the reception area, Mrs.
Komlodi observed her daughter trying with her teeth to open the
package that held one of the Duragesic patches. Michelle asked
her mother if she had scissors. Mrs. Komlodi responded that she
did not and told her daughter to wait until they returned home.
After Mrs. Komlodi left to meet with her doctor, a receptionist
12
noticed that Michelle had passed out.
Dr. Richard Goldstein found Michelle in the waiting room
unconscious, blue, not breathing, and without a pulse. Dr.
Goldstein and another doctor from the group performed CPR on
Michelle. During mouth-to-mouth resuscitation, Dr. Goldstein
“found a wadded piece of plastic in [Michelle’s] mouth.” It was
a Duragesic patch.
As a result of the fentanyl overdose, Michelle went into
respiratory and cardiac distress, causing a lack of oxygen to
the brain. Michelle was taken to Raritan Bay Medical Center and
placed on a ventilator for several days. Later, she was
released to the JFK Brain Trauma Unit, where she remained for
over a month. Michelle suffers from a permanent brain injury
with physical deficits; severe cognitive, behavioral, and
psychological impairments; and memory loss. At the time of
trial, she was a resident at Universal Institute in Long Branch.
D.
Plaintiff’s expert, Dr. John Russo, a specialist in
internal medicine, testified that Dr. Picciano breached accepted
standards of medical care by prescribing to a patient, known to
be abusing both alcohol and drugs, a Duragesic patch for back
pain without having exhausted typical treatment modalities, such
as physical therapy and anti-inflammatory medication. He also
maintained that Dr. Picciano deviated from those standards by
13
prescribing the Duragesic patch to treat Michelle’s “depression,
anxiety, an eating disorder, alcohol withdrawal or detox from
alcohol or drugs.”
Dr. Russo referred to the Physician’s Desk Reference, which
warns that the “Duragesic should be used with caution in
individuals who have a history of drug or alcohol abuse
especially if . . . they are outside a medically controlled
environment.” He stated that a physician prescribing a
Duragesic patch is expected to know that a patient’s misuse of
the medication can cause respiratory failure and death. Dr.
Russo pointedly stated that the standard of care did not allow a
physician to “give an addict narcotic medications that [she is]
going to abuse.” He noted that even in 2004 there were reports
of addicts orally ingesting the Duragesic patch. Dr. Russo also
explained that after Michelle’s episode of binge drinking and
her hospitalization for pathological intoxication, Dr. Picciano
should have engaged Mrs. Komlodi to assist in keeping Michelle
from accessing the prescribed Duragesic. Dr. Russo concluded
that Dr. Picciano’s prescribing of the Duragesic patch “was a
significant contributing factor to the anoxic brain injury”
suffered by Michelle.
Defendants’ expert, Dr. Mark Graham, also a specialist in
internal medicine, testified that Dr. Picciano’s treatment of
Michelle “was appropriate and within the standards of medical
14
care.” In his opinion, Dr. Picciano understood that Michelle’s
chronic lower back pain may have been due to “psychiatric
problems” and therefore properly referred her to mental health
counseling rather than to an orthopedist. Dr. Graham believed
that Dr. Picciano made the best choice from “a list of bad
options.” Dr. Picciano knew that Michelle had hepatitis C and
that Michelle’s continued use of alcohol to treat her back pain,
anxiety, and depression would ruin her liver. Dr. Picciano also
knew that if she did nothing Michelle would continue “using
drugs off the streets.” Therefore, to Dr. Graham’s mind, Dr.
Picciano’s decision to prescribe “a long acting opiate similar
to the amount that she was getting from the street” was the
safest choice, provided the medication was used properly.
Moreover, he stated that not until 2005 did it become general
medical knowledge that addicts were consuming Duragesic patches
orally. Dr. Graham concluded that nothing Dr. Picciano “did
resulted in the adverse outcome” and that if she “prescribed
nothing . . . the outcome would likely have been identical to
what it was.”
E.
The trial court denied the motions of both plaintiff and
defendants for a directed verdict. At the charge conference,
plaintiff argued that the court should not instruct the jury on
apportionment of fault or apportionment of damages between
15
plaintiff and defendants. Plaintiff posited that the standard
of care governing Dr. Picciano was the duty “to protect the
patient from [her] drug-seeking behavior and the risk of self-
inflicted harm whether intentional or unintentional.” According
to plaintiff, Dr. Picciano had the duty to foresee the
consequences of prescribing the medication -- that Michelle’s
addictive craving would overcome her will and lead her to abuse
the Duragesic patch. On that basis, plaintiff submitted that
the court should not charge on comparative negligence, increased
risk due to a preexisting condition, or avoidable consequences.
On the other hand, defendants essentially argued that those
charges were applicable because the jury could find that
Michelle was the sole cause of her own tragic condition. From
defendants’ perspective, Michelle failed to follow the advice of
Dr. Picciano to secure mental-health counseling and to use the
Duragesic patch for its intended purpose. According to
defendants, Michelle’s abuse of alcohol for pain relief was
destroying her liver, and prescribing the Duragesic was a
medically acceptable treatment for her pain. Defendants
contended that Michelle chose to abuse the Duragesic patch in a
way that could not have been foreseen.
The court decided to charge on preexisting condition,
avoidable consequences, and superseding/intervening causation,
but not on comparative negligence. In support of its ruling,
16
the court cited Ostrowski v. Azzara, 111 N.J. 429, 441 (1988),
which held that trial courts “must avoid the indiscriminate
application of the doctrine of comparative negligence (with its
fifty percent qualifier for recovery) when the doctrines of
avoidable consequences or preexisting condition apply.” Under
the doctrine of comparative negligence, plaintiff is barred from
receiving any recovery if she is more than fifty percent at
fault. N.J.S.A. 2A:15-5.1. The court determined that under the
doctrine of avoidable consequences, the jury could “consider the
conduct of Michelle as an offset to damages” and apportion
damages according to each party’s percentage of responsibility.
The court came to the same conclusion on the theory of increased
risk resulting from a preexisting condition. The court
determined that the jury should be allowed to consider whether
Dr. Picciano’s prescribing the Duragesic patch increased the
risk due to Michelle’s preexisting condition and whether
prescribing the patch was a substantial factor in causing
Michelle’s brain injury. This preexisting-condition charge
allowed the jury to deny plaintiff any recovery.
The court submitted to the jury a verdict sheet with ten
interrogatory questions broken down into four categories:
responsibility, allocation of responsibility, damages, and other
factors. The jury’s response to the first three questions in
the “responsibility” category ended the case. The jury found
17
that plaintiff had proven that Dr. Picciano had deviated from
accepted standards of family medical practice and that the
deviation increased the risk of harm posed by Michelle’s
preexisting condition. However, the jury found that plaintiff
did not prove that the increased risk was a substantial factor
in producing the medical condition of Michelle Komlodi. This
last response meant that Dr. Picciano did not bear legal fault
in causing Michelle’s anoxic brain injury and therefore judgment
was entered in favor of defendants.
Plaintiff’s motion for a new trial or judgment
notwithstanding the verdict was denied.
II.
In an unpublished opinion, a split three-judge panel of the
Appellate Division reversed and remanded for a new trial because
the trial court incorrectly charged the jury on the law. The
panel maintained that the trial court clearly erred by giving a
Scafidi charge. According to the panel, a Scafidi charge is
“‘limited to that class of cases in which a defendant’s
negligence combines with a preexistent condition to cause
harm,’” (quoting Verdicchio v. Ricca, 179 N.J. 1, 23–24 (2004)),
and the central question in such cases “‘is whether [a]
plaintiff’s damage claim should be limited to the value of the
lost chance of recovery,’” (alteration in original) (quoting
18
Anderson v. Picciotti, 144 N.J. 195, 209 (1996)). The panel
determined that “defendants did not identify ‘the preexisting
disease and its normal consequences,’” (quoting Fosgate v.
Corona, 66 N.J. 268, 272 (1974)), and therefore “were not
entitled to a Scafidi charge.” It also determined that the
trial court’s vague references to Michelle’s “‘medical
condition’ and ‘her problems’” were not a sufficient
articulation of a preexisting condition without tying it “to any
proofs or theories presented by the parties.”
The panel also stated that the trial court erred in
instructing the jury on both “but for” causation and
“substantial factor” causation in referring to the “preexisting
condition/increased risk.” It found that those two forms of
causation are incompatible and that a “but for” causation charge
is not appropriate where concurrent causes may be responsible
for the harmful result.
In addition, the panel stated that there was “no reason for
the court to instruct the jury on both foreseeability and
intervening cause,” for if Michelle’s purposeful misuse of the
Duragesic patch was “foreseeable,” then the drug abuse would not
be “a superseding cause that relieves Dr. Picciano from
negligence.”
On the other hand, the panel rejected plaintiff’s argument
that the court should not have instructed the jury on the
19
doctrine of avoidable consequences. The jury, it determined,
could have concluded that Michelle had a duty to “mitigate[]
damages by following” Dr. Picciano’s instructions.
In his dissent, Judge Ashrafi countered that “Michelle
Komlodi’s drug addiction was irrefutably a preexisting condition
that was a proximate cause of her ingestion of the injurious
fentanyl gel . . . [causing] the brain injury she suffered.” He
acknowledged that “the trial court erred by including a ‘but
for’ proximate cause charge in the context of a case involving
alleged multiple causes of plaintiff’s injuries.” He
nevertheless considered this “isolated misstep” not capable of
producing an unjust result in the context of a lengthy jury
charge. On the question of foreseeability and
superseding/intervening causation, Judge Ashrafi also disagreed
with the majority, stating that “[b]oth instructions were proper
statements of the law for the jury to consider in determining
defendant’s liability.” In his opinion, “[t]he jury’s verdict
was based on the evidence and on correct instructions as a
whole,” and accordingly there was no justification to reverse
the no-cause verdict.
Defendants filed an appeal as of right pursuant to Rule
2:2-1(a).5 The issues before us are limited to those raised in
5
Neither party filed a petition for certification challenging a
ruling of the Appellate Division not raised in the dissent.
20
the dissent. R. 2:2-1(a)(2) (“Appeals may be taken to the
Supreme Court from final judgments as of right . . . with regard
to those issues as to which, there is a dissent in the Appellate
Division . . . .”); Gilborges v. Wallace, 78 N.J. 342, 349
(1978) (“[W]here there is a dissent in the Appellate Division,
the scope of the appeal . . . is limited to those issues
encompassed by the dissent.”). We granted the motion of the New
Jersey Association for Justice (NJAJ) to participate as amicus
curiae.
III.
A.
Defendants contend that Dr. Picciano did not deviate from
the appropriate standard of care when she prescribed a Duragesic
patch for Michelle Komlodi, but even if she did, Michelle caused
the harm -- an anoxic brain injury -- by ingesting the patch.
On either theory, defendants insist, they have no legal
liability. Defendants argue that the trial court properly gave
a Scafidi charge because Michelle had a preexisting drug and
alcohol addiction, and if Dr. Picciano increased the risk of
harm by prescribing a powerful medication for Michelle’s
“unremitting back pain,” it was Michelle’s “craving for
narcotics [that] overcame the valid use of the Duragesic patch.”
In defendants’ view, Scafidi applies when negligent medical
21
treatment exacerbates a preexisting condition, leading to “a
result which could be foreseeable from that pre-existing
condition.” Thus, the Scafidi charge was proper because “[t]he
pre-existing condition, drug addiction, combined with the
prescription of a narcotic for back pain, led to a result that
was foreseeable.” According to defendants, the role of the jury
was to determine whether either Dr. Picciano’s treatment or
Michelle’s preexisting condition was a substantial factor
causing the anoxic brain injury, and if both were factors to
apportion damages. Defendants state that “judicial notice can
be taken that addicts often overdose, usually unintentionally,
by accidentally consuming a narcotic or more narcotics than that
individual intended.”
Defendants also maintain that the errant “but for” language
in the jury charge was harmless, for the reasons given by Judge
Ashrafi. Last, they submit that the trial court’s charge on
both superseding/intervening causes and foreseeability was a
proper statement of law.
B.
Plaintiff claims that this was a case of simple negligence
and therefore the Scafidi charge was improper for two reasons.
First, Dr. Picciano breached the standard of care by prescribing
a Duragesic patch to treat the lower back pain of a patient with
a history of drug and alcohol abuse, and it was foreseeable that
22
Michelle would misuse the patch either by orally ingesting it or
using it while drinking alcohol. Second, Dr. Picciano was
negligent because, after prescribing the patch and learning that
Michelle was abusing alcohol, she did not “take appropriate
measures to assure that Michelle would not use the patch.”
Plaintiff maintains that a Scafidi case is one in which a
doctor negligently treats a preexisting disease, thereby
increasing the harm caused by the preexisting disease. In such
a case “the Scafidi charge is warranted and the plaintiff’s
damages are limited to the increased risk of harm attributable
to the defendant’s negligent conduct.” Here, according to
plaintiff, Scafidi does not apply because Dr. Picciano was
treating Michelle for lower back pain and not for the
preexisting disease of alcohol or drug addiction. In
plaintiff’s view, even if Scafidi principles applied, defendants
failed “to identify the pre-existing condition and reasonably
apportion the damages” and did not satisfy those principles
merely by insisting that the anoxic brain injury would have
occurred anyway “because a drug addict can overdose at any
time.” Last on this issue, plaintiff contends that because
defendants offered no evidence on apportionment of damages, they
were totally responsible for the injury and damages.
Plaintiff also claims that the “but for” instruction was
improper in a case “where there are concurrent or intervening
23
causes of harm that do not constitute pre-existing medical
conditions that the defendant is treating.” Finally, she urges
that charging superseding/intervening causation was improper
because defendants conceded that abuse of the Duragesic patch
was foreseeable, and therefore such a charge could only have
served to confuse the jury.
C.
Amicus curiae NJAJ also submits that the trial court erred
in giving a Scafidi charge. NJAJ states that this case is not
the “typical Scafidi fact pattern” in which a doctor negligently
delays medical treatment of a patient afflicted by a preexisting
disease, leading to an increased risk of harm to the patient.
In such a case, the preexisting condition itself may lead to a
harmful result, and the doctor’s negligence accelerates or fails
to stem the course of the condition. Here, NJAJ asserts Dr.
Picciano’s “deviation from the standard of care alone is the
cause of Michelle’s injuries,” thus rendering inapplicable a
Scafidi charge. Further, NJAJ insists that “the trial court
erred in failing to tailor the charge to the theories and facts
presented by plaintiffs at trial” and that the “but for” charge
was so confusing that it fatally undermined the fairness of the
verdict.
IV.
24
A.
In this medical malpractice case, the parties presented
dueling theories on standard of care and causation and hotly
disputed what inferences should be drawn from the facts. The
jury, as the ultimate trier of fact, was presented with the task
of deciding exceedingly complex issues of liability and
apportionment of damages. But a jury cannot fulfill that
difficult task without accurate, clear, and understandable
instructions from the court. Jurman v. Samuel Braen, Inc., 47
N.J. 586, 591–92 (1966) (“[T]he court’s instructions must . . .
set forth the issues, correctly state the applicable law in
understandable language, and plainly spell out how the jury
should apply the legal principles to the facts as it may find
them . . . .”). The faithful performance of the jurors’ duties
depends on proper guidance from the court. Talmage v.
Davenport, 31 N.J.L. 561, 562 (1864). Indeed, the trial court
must tailor the instructions on the law to the theories and
facts of a complex case for a jury to fully understand the task
before it. See Reynolds v. Gonzalez, 172 N.J. 266, 288-89
(2002) (reversing medical-malpractice verdict for “trial court’s
failure to tailor its instruction to the theories and facts
presented”).
In a medical-malpractice action, the plaintiff has the
burden of proving the relevant standard of care governing the
25
defendant-doctor, a deviation from that standard, an injury
proximately caused by the deviation, and damages suffered from
the defendant-doctor’s negligence. See Verdicchio, supra, 179
N.J. at 23; Evers v. Dollinger, 95 N.J. 399, 406 (1983)
(reversing judgment in favor of defendant because evidence that
tumor increased in size satisfied plaintiff’s requirement to
prove damages). In medical malpractice cases, the standard of
care generally is not a matter of common knowledge and must be
established by experts who typically specialize in a field of
medicine similar to that of the defendant-physician. Nicholas
v. Mynster, 213 N.J. 463, 479 (2013) (noting that in malpractice
cases generally “‘an expert must have the same type of practice
and possess the same credentials, as applicable, as the
defendant health care provider’” (quoting Assem. Health & Human
Servs. Comm., Statement to Assem. B. 50 at 20 (Mar. 4, 2004))).
A physician must exercise a duty of care to a patient that,
generally, any similarly credentialed member of the profession
would exercise in a like scenario. Cowan v. Doering, 111 N.J.
451, 462, 468 (1988). In certain circumstances -- depending on
the condition a patient presents -- the duty of care may
“include the duty to prevent a patient from engaging in self-
damaging acts.” Id. at 461 (finding duty of care to prevent
suicidal patient from self-inflicting harm based on foreseeable
risk that patient would try to injure herself). We have held
26
that a psychiatrist treating a suicidal patient may have a duty
to protect the patient from self-harm. Cowan, supra, 111 N.J.
at 462. A health-care provider may also have a duty to protect
a particularly vulnerable patient from self-harm. See Tobia v.
Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335, 342 (1994) (stating
in case involving elderly woman who fell off hospital stretcher
that it is wrong “to suggest to the jury that although the
hospital had the duty to care for an incapacitated patient, the
patient’s lack of care for herself diluted that duty”). We have
noted that in cases involving the foreseeability that a patient
will engage in self-injurious conduct, application of
comparative negligence may dilute the duty of care. Tobia,
supra, 136 N.J. at 342; Cowan, supra, 111 N.J. at 467.
In this case, plaintiff and defendants presented
conflicting expert testimony concerning whether Dr. Picciano
deviated from the accepted standard of care. The parties do not
truly dispute that a “duty of care to prevent self-inflicted
harm arises” when there is “a foreseeable risk that plaintiff’s
condition, as it [is] known to defendants, include[s] the danger
that she [will] injure herself.” Cowan, supra, 111 N.J. at 462.
They dispute whether Dr. Picciano breached this standard.
Plaintiff argued that prescribing a Duragesic patch to a drug-
and alcohol-addicted patient, given the ongoing history
presented by Michelle Komlodi, deviated from the applicable duty
27
of care. Defendants argued that Dr. Picciano prescribed the
patch as a stop-gap measure to treat Michelle’s pain so that she
would not self-medicate while she was waiting for her
appointment at a mental-health clinic.
In rendering its verdict, the jury pronounced in
interrogatory number one that Dr. Picciano deviated from the
standard of care governing a family-practice physician. That
finding is not directly at issue in this appeal. The main focus
is on the propriety of the charge on causation.
With this background, we now turn to the various theories
of causation that are at the heart of this appeal.
B.
A basic notion of our law is that, generally, a tortfeasor
should be liable for only the harm she actually caused to the
plaintiff. Scafidi, supra, 119 N.J. at 112–13. In cases where
a plaintiff is responsible, in whole or in part, for the harm or
injury she suffers, the doctrines of comparative negligence,
avoidable consequences, or superseding/intervening causation may
serve to absolve a defendant of liability or limit her damages.
See Ostrowski, supra, 111 N.J. at 436–38 (discussing elements of
comparative negligence and avoidable consequences); Cowan,
supra, 111 N.J. at 465 (stating that defendant has no liability
if there is intervening act that breaks chain of causation).
Another doctrine -- the one specifically at issue in this case -
28
- provides a limitation on liability or damages in a medical
malpractice action when a defendant-physician fails to timely
treat or diagnose a preexisting disease or condition, thus
increasing the risk of harm to the plaintiff. Scafidi, supra,
119 N.J. at 112 (limiting plaintiff’s damages in preexisting
disease or condition cases “to the value of the lost chance of
recovery”). So, for example, the physician who fails to timely
detect a progressive disease, such as cancer, is only liable for
the damages caused by the increased risk of harm resulting from
her negligence. See id. at 112–13. In a case involving a
preexisting disease or condition, the defendant-physician, not
the “innocent” patient, is required to establish the percentage
of damages attributable to the physician’s negligence.
Verdicchio, supra, 179 N.J. at 37 (quoting Fosgate, supra, 66
N.J. at 272).
Following this Court’s guidance in Ostrowski, supra, the
trial court in this case decided against charging comparative
negligence. The comparative-negligence statute permits
recovery, and apportionment of damages, so long as the
plaintiff’s “negligence was not greater than the negligence of
the person against whom recovery is sought.” N.J.S.A. 2A:15-
5.1. Under the statute, if the plaintiff’s negligence is fifty-
one percent and defendant’s forty-nine percent, the plaintiff
receives no recovery. Comparative negligence “comes into action
29
when the injured party’s carelessness occurs before defendant’s
wrong has been committed or concurrently with it.” Ostrowski,
supra, 111 N.J. at 438 (citing William L. Keeton et al., Prosser
and Keeton on the Law of Torts § 65 at 458-59 (5th ed. 1984)).
In contrast to comparative negligence, the doctrine of
avoidable consequences “normally comes into action when the
[plaintiff’s] carelessness occurs after the defendant’s legal
wrong has been committed.” Id. at 438. Unlike comparative
negligence, the doctrine of avoidable consequences is not a
defense to liability and serves only to mitigate damages. Id.
at 441 (quoting Southport Transit Co. v. Avondale Marine Ways,
Inc., 234 F.2d 947, 952 (5th Cir. 1956)). Avoidable
consequences will reduce a recovery because a plaintiff cannot
claim as damages the additional injury she causes to herself
after a defendant commits a tortious act. See ibid. A
plaintiff whose broken wrist is wrongly set by a surgeon cannot
claim increased damages when, against doctor’s orders, she
causes additional harm to her wrist while playing tennis.
Thus, even when comparative negligence is barred,
“[d]efendants can assert a patient’s self-neglect to limit
damages.” Tobia, supra, 136 N.J. at 343 (stating that if
plaintiff, after having fallen off stretcher, had worsened her
condition by disobeying medical instructions, jury could find
failure to mitigate damages); see also Ostrowski, supra, 111
30
N.J. at 449 (noting that diabetic patient’s “continued failure
to follow dietary and smoking rules” could be considered failure
to mitigate damages but not comparative negligence); Lynch v.
Sheininger, 162 N.J. 209, 230 (2000) (noting in wrongful birth
claim that trial court might be required to charge avoidable
consequences if “proofs would sustain a jury finding that the
[parents] decided to conceive another child notwithstanding
their knowledge” that pregnancy was likely to be risky).
In the present case, plaintiff ingested the Duragesic patch
after Dr. Picciano allegedly violated the standard of care by
prescribing the patch. In Ostrowski, supra, we said that courts
“must avoid the indiscriminate application of the doctrine of
comparative negligence . . . when the doctrines of avoidable
consequences or preexisting condition apply.” 111 N.J. at 441.
Based on this instruction, the trial court ruled out comparative
negligence as a defense. The court’s decision not to charge
comparative negligence was not appealed. By its clear terms,
Ostrowski signaled that a comparative negligence charge should
not be given when the doctrine of avoidable consequences
applies. However, it is also clear here that giving a
preexisting disease or condition charge was inappropriate.
C.
In light of the charges on avoidable consequences and
superseding/intervening causes, the trial court erred in
31
charging the jury on preexisting disease or condition -- the
Scafidi charge. We come to that conclusion for several reasons.
When a patient is treated for a preexisting condition and a
physician’s negligence worsens that condition, it may be
difficult to identify and prove the precise injury caused by the
physician. See Evers, supra, 95 N.J. at 413. To address this
scenario, we have held that a jury must decide whether any
“negligent treatment increased the risk of harm posed by a
preexistent condition” and, if so, “whether the increased risk
was a substantial factor in producing the ultimate result.”
Scafidi, supra, 119 N.J. at 108. If the plaintiff satisfies her
burden of proving these two elements by a preponderance of the
evidence, then the burden shifts to the defendant to show what
damages should be attributable solely to the preexisting
condition as opposed to the physician’s negligence. See
Fosgate, supra, 66 N.J. at 272–73. The amount of damages caused
by the aggravation of the preexisting condition due to the
physician’s negligence is “the value of the lost chance of
recovery.” Scafidi, supra, 119 N.J. at 112. The jury
instruction on whether the doctor’s deviation from the standard
of care increased the risk of harm and whether the increased
risk was a substantial factor in producing the ultimate harm --
along with the allocation of damages -- is known as a Scafidi or
preexisting-condition charge. See id. at 108-09.
32
One important distinction between the doctrine of
preexisting disease and condition and the doctrines of
comparative negligence, superseding/intervening cause, and
avoidable consequences is that preexisting disease and condition
does not involve fault on the part of the plaintiff. Ostrowski,
supra, 111 N.J. at 438 (“[T]he injured person’s conduct is
irrelevant to the consideration of the doctrine of aggravation
of a preexisting condition.”); id. at 437 (stating that under
comparative negligence plaintiff is barred from receiving
recovery when her fault is greater than defendant’s); id. at 443
(stating that under avoidable consequences plaintiff’s recovery
is reduced by degree of her fault as expressed by percentage);
Cowan, supra, 111 N.J. at 465 (stating that plaintiff’s
volitional act may constitute superseding/intervening cause
barring recovery).
In the typical Scafidi case, the plaintiff seeks treatment
for a preexisting condition, and the physician, through
negligence, either fails to diagnose or improperly treats the
condition, causing it to worsen and sometimes causing the
plaintiff to lose the opportunity to make a recovery. See,
e.g., Reynolds, supra, 172 N.J. at 275 (failure to conduct
appropriate test increased risk of nerve damage and paralysis
from undiagnosed and untreated condition); Scafidi, supra, 119
N.J. at 98 (failure to properly treat premature labor resulted
33
in early birth and death of infant); Evers, supra, 95 N.J. at
404 (delay in treating breast cancer “enhanced the risk that the
cancer would recur”). Scafidi-type cases generally do not
implicate fault on the part of the plaintiff. The physician
must take the patient as presented to her and cannot blame the
patient for the preexisting condition or disease for which the
patient has sought treatment.
Thus, in the typical Scafidi case, the inexorable
progression of a preexisting disease or condition will occur due
to no fault of the plaintiff, and it is that circumstance that
will be offset against a treating physician’s negligence. Here,
it is Michelle’s failure to properly use the Duragesic patch
after Dr. Picciano’s alleged negligence -- prescribing the patch
-- that is at issue. Because the Scafidi charge here was used
to allocate fault, not just damages, it served as a substitute
for the comparative-fault charge -- without the fifty-one
percent fault bar. Moreover, the Scafidi charge here became
blurred with the charge on avoidable consequences and
superseding/intervening causation. Defendants’ basic argument
in summation was that Michelle chose to misuse the Duragesic
after Dr. Picciano prescribed the patch. Stated differently,
Michelle could have avoided the consequence of Dr. Picciano’s
alleged negligence by properly using the patch. Notably,
defendants argue before this Court that Scafidi was appropriate
34
because Michelle’s injury was foreseeable given her preexisting
condition; yet at trial, defendants argued to the jury that Dr.
Picciano could not have foreseen Michelle’s
superseding/intervening actions. These inconsistent arguments
strongly suggest that the charge had the capacity to confuse or
mislead the jury.
In addition, the Scafidi charge suffered from multiple
defects. The court merely recited several interrogatory
questions on the jury verdict form without elaboration or
further guidance. The first three interrogatory questions read:
1) Did plaintiff prove by a preponderance of
the evidence that Anne Picciano, M.D.,
deviated from accepted standards of family
medical practice?
2) Did plaintiff prove by a preponderance of
the evidence that the deviation by Dr.
Picciano increased the risk of harm posed by
Michelle Komlodi’s pre-existing condition?
3) Did plaintiff prove by a preponderance of
the evidence that that increased risk was a
substantial factor in producing the medical
condition of Michelle Komlodi?
These three questions, and a fourth that allowed an allocation
of damages if the jury answered affirmatively to the first
three, were the entirety of the court’s Scafidi charge.
The trial court did not follow Model Jury Charge (Civil) §
5.50E entitled, “Pre-Existing Condition -- Increased Risk/Loss
of Chance -- Proximate Cause” (Feb. 2004). That charge requires
35
that the principles of law be charged with reference to the
specific facts of the case. The charge instructs the trial
court to provide “a detailed factual description of the case.”
Model Jury Charge (Civil) § 5.50E. That was not done here. The
charge also indicates that the preexisting condition or disease
should be identified. That was not done here. For example, the
Model Jury Charge reads:
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. . . .
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.
[Ibid.]
As is evident from the model charge, in instructing the
jury, the trial court is expected to review facts relevant to
the charge and to identify the preexisting disease or condition.
Had the court attempted to do so, the inadvisability of giving
the charge might have become apparent. However, even if the
charge were appropriate, the failure to tailor the legal
theories and facts to the law on preexisting conditions would
raise serious questions about the verdict. Reynolds, supra, 172
36
N.J. at 288-89. “‘[E]rroneous instructions are poor candidates
for rehabilitation as harmless, and are ordinarily presumed to
be reversible error.’” Das v. Thani, 171 N.J. 518, 527 (2002)
(quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
We agree with the panel majority that the misapplication of
the Scafidi charge requires a remand for a new trial.
V.
We concur with Judge Ashrafi’s dissent that the trial court
did not err in charging the jury on both foreseeability and
superseding/intervening causation. The panel majority was
correct in asserting that “if Michelle’s deliberate act was
foreseeable, then it was not a superseding cause.” That,
however, is not a sufficient reason for not instructing on
superseding/intervening causes. The concepts of foreseeability
and superseding/intervening causation are inextricably
interrelated, and the jury needs to be educated to have a full
understanding of both. Here, as in other parts of the charge,
the trial court failed to explain to the jury how the legal
concepts applied to the facts of the case.
A.
Foreseeability is a constituent part of proximate cause,
and proximate cause is an essential element of a malpractice
action. If an injury is not a foreseeable consequence of a
37
person’s act, then a negligence suit cannot prevail. See
Caputzal v. Lindsay Co., 48 N.J. 69, 78–79 (1966) (noting that
there is no liability for “remote consequences” of negligent
action). An act is foreseeable when a reasonably prudent,
similarly situated person would anticipate a risk that her
conduct would cause injury or harm to another person. Kelly v.
Gwinnell, 96 N.J. 538, 543 (1984) (citing Rappaport v. Nichols,
31 N.J. 188, 201 (1959)). So long as the injury or harm
suffered was within the realm of reasonable contemplation, the
injury or harm is foreseeable. Bendar v. Rosen, 247 N.J. Super.
219, 229 (App. Div. 1991) (“The tortfeasor need not foresee the
precise injury; it is enough that the type of injury be within
an objective ‘realm of foreseeability.’” (citation omitted)).
In contrast, if an injury or harm was so remote that it could
not have been reasonably anticipated, the injury or harm is not
foreseeable. See Caputzal, supra, 48 N.J. at 78–79.
The superseding/intervening charge complements the general
charge on proximate cause. Indeed, the interrelationship
between foreseeability and superseding/intervening causes is
recognized by our Model Jury Charges. Model Jury Charge (Civil)
§ 6.13, “Proximate Cause -- Where There Is Claim That Concurrent
Causes of Harm Are Present and Claim That Specific Harm Was Not
Foreseeable” (May 1998), specifically notes that, when
appropriate, it should be charged with Model Jury Charge (Civil)
38
§ 6.14, “Where There Is Claim of Intervening or Superseding
Cause for Jury’s Consideration” (Aug. 1999).
A superseding or intervening act is one that breaks the
“chain of causation” linking a defendant’s wrongful act and an
injury or harm suffered by a plaintiff. Cowan, supra, 111 N.J.
at 465. A superseding or intervening act is one that is “the
immediate and sole cause of the” injury or harm. Model Jury
Charge (Civil) § 6.14; see also Davis v. Brooks, 280 N.J. Super.
406, 412 (App. Div. 1993). Significantly, intervening causes
that are “foreseeable” or the “normal incidents of the risk
created” will not break the chain of causation and relieve a
defendant of liability. Model Jury Charge (Civil) § 6.14; see
also Rappaport, supra, 31 N.J. at 203.
As with all disputed issues, the jury is the final arbiter
of the facts. Thus, whether a particular risk is foreseeable
and whether the act of another is one of the “normal incidents
of the risk created” are issues for the jury. See Rappaport,
supra, 31 N.J. at 203.
Cowan, supra, provides one illustration of
superseding/intervening causation in a medical malpractice case.
111 N.J. at 465–66. In that case, at defendant Valley Hospital,
the defendant doctors and nurses treated the plaintiff, who had
attempted suicide by overdosing on sleeping pills. Id. at 455.
At some point, the plaintiff was placed in a room, the door was
39
closed, and she was not monitored, contrary to hospital policy.
Id. at 456. The plaintiff managed to jump out of the window of
her room, falling twelve feet and injuring herself. Ibid. We
upheld the trial court’s instruction on superseding/intervening
causation. Id. at 465. We noted that the plaintiff’s “leap
from the window” might break the chain of causation “if her act
were volitional and not attributable to her disorder or
condition.” Ibid. “The issue fairly presented to the jury was
whether the leap was reasonably foreseeable or was, on the
contrary, a remote or abnormal incident of the risk of self-
injury that was not otherwise reasonably foreseeable by
defendants.” Ibid. (citing Rappaport, supra, 31 N.J. at 203–
04). It was left to the jury to determine whether the plaintiff
was able to exercise reasonable care given her underlying
condition. Id. at 466. We upheld “the jury’s rejection of the
intervening causation” because the evidence “fully supported”
the finding that “it was clearly foreseeable that defendants’
conduct created a risk that plaintiff would engage in self-
damaging acts.” Ibid.
We now apply these principles to the case before us.
B.
Here, the jury had to determine whether, given Michelle
Komlodi’s medical history of addiction to alcohol and drugs, her
oral ingestion of the Duragesic patch was “reasonably
40
foreseeable or was . . . a remote or abnormal incident of the
risk of self-injury that was not otherwise reasonably
foreseeable by defendants.” Cowan, supra, 111 N.J. at 465.
Intertwined with that question was whether Michelle’s act was
“volitional and not attributable to [her] disorder or
condition.” Ibid. Were Michelle’s addictive cravings so
powerful that they were capable of overcoming her will, and
would a reasonably prudent, similarly credentialed physician
have understood this dynamic? In light of Michelle’s apparently
proper, although illicit, topical use of the Duragesic patch in
the past, was it reasonably foreseeable that Michelle would
orally ingest the prescribed Duragesic? Was there common
knowledge among family care practitioners about the potential
abuses of Duragesic patches at the times relevant in this case?
What would a reasonably well-informed doctor have anticipated
given the patient’s medical history and prior conduct? We do
not suggest that these precise questions had to be framed for
the jury. The court here, however, never posed any appropriate
superseding/intervening causation questions. Instead, the court
gave examples completely unrelated to the proofs.
The trial court was correct to charge the jury on
superseding/intervening cause. But it did not mold its
instructions to the facts of this case. Juries must know how
the legal instructions are to be applied to the complex factual
41
scenarios before them, and the instructions must be clear and
understandable. The jury charge failed to give the jury the
guidance it needed to sort through the complex issues in this
case.
VI.
Neither plaintiff nor defendant has challenged the
avoidable-consequences charge given at trial; nevertheless, our
review of the avoidable-consequences charge leads us to the
conclusion that it must be adapted to the special circumstances
of this case. As with all jury instructions, the trial judge
should tailor the charge to the facts and the parties’
arguments. Model Jury Charge (Civil) § 8.11B, “Duty to Mitigate
Damages by Medical and Surgical Treatment,” will only be
meaningful to a jury hearing this case if it addresses the
special circumstances presented here -- how plaintiff acted in
light of her drug and alcohol addiction. The jury must
determine whether, and to what degree, the plaintiff had the
capacity to act reasonably to care for herself in light of her
health or mental condition. See Cowan, supra, 111 N.J. at 460.
We recommend the following charge:
Plaintiff contends that because of
Michelle’s impaired health or mental
condition, defendant had the duty to protect
Michelle from harming herself. If you
42
decide that plaintiff is entitled to damages
for Michelle’s injuries, you then must
decide whether Michelle had the capacity to
exercise reasonable care to avoid or
mitigate the damages she suffered.
A plaintiff is responsible for mitigating
the consequences of a defendant’s negligent
conduct to the extent reasonable care can be
exercised by the plaintiff, taking into
consideration her health or mental
condition.
In this case, defendant claims that Michelle
could have avoided or mitigated her injuries
by securing mental health treatment or by
using the Duragesic patch as instructed. On
the other hand, plaintiff claims that
Michelle was so impaired by her addiction
that she was incapable of caring for
herself, that is, incapable of avoiding or
mitigating her injuries. You, members of
the jury, must decide the facts, and
ultimately which of the party’s arguments is
most persuasive, or whether there is some
merit to both, and if so to what degree.
In short, you must decide what percentage,
if any, of Michelle’s damages were caused by
a failure on her part to exercise
reasonable care to avoid or mitigate those
damages -- provided she was capable of doing
so. If she was capable of doing so, you
must reduce her damages accordingly.
Whether a plaintiff acted reasonably must be
examined in light of the plaintiff’s
capacity to care for herself. A plaintiff
suffering from a health or mental condition
may be capable, incapable or not fully
capable of caring for herself as an ordinary
person would.
If you find that plaintiff has established
defendant’s negligence, then defendant must
prove by a preponderance of the evidence
that Michelle, in light of her health or
43
mental condition, could reasonably have
acted to avoid or mitigate injury.
A defendant is liable only for that portion
of the injuries attributable to the
defendant’s negligence. If you find that,
in light of her health or mental condition,
Michelle did not act reasonably to avoid or
mitigate injury, you must assess the degree
to which the injuries were the result of
either defendant’s negligence or Michelle’s
own unreasonable failure to avoid or
mitigate injury. You must allocate by
percentages defendant’s responsibility for
Michelle’s injuries and Michelle’s failure
to exercise care to avoid or mitigate those
injuries.6
VII.
The appellate panel majority and the dissent agree that the
use of a “but for” causation charge in conjunction with a
substantial-factor charge was error. Unlike the majority,
however, the dissent concluded that the error was harmless. The
trial court made a seemingly inadvertent reference to “but for”
causation during its instruction on proximate cause.
So, first you must find that the
resulting injury would not have occurred but
for Dr. Picciano’s negligent conduct.
Second, you must find that the
negligent conduct was a substantial factor
in bringing about the resulting injury. If
you find that Dr. Picciano’s negligence was
a cause of the injury and was a substantial
6
We refer to the Supreme Court Committee on Model Civil Jury
Charges, for its review, the charge on avoidable consequences
for any recommendations it may have for its improvement, bearing
in mind the various scenarios to which it may apply.
44
factor in bringing about the injury, that
negligence was a proximate cause of the
injury.
This was the only reference to “but for” causation in the
charge. Importantly, no party objected to the “but for”
reference. See R. 1:7-2 (“Except as otherwise provided by R.
1:7-5 and R. 2:10-2 (plain error), no party may urge as error
any portion of the charge to the jury or omissions therefrom
unless objections are made thereto . . . .”).
These two forms of causation -- “but for” and “substantial
factor” -- are mutually exclusive. A “but for” charge is
appropriate when there is only one potential cause of the injury
or harm. See Conklin v. Hannoch Weisman, P.C., 145 N.J. 395,
417 (1996) (“In the routine tort case, ‘the law requires proof
that the result complained of probably would not have occurred
“but for” the negligent conduct of the defendant.’” (citation
omitted)). In contrast, the “substantial factor” test is given
when there are concurrent causes potentially capable of
producing the harm or injury. Id. at 419–20. Thus, “a
tortfeasor will be held answerable if its ‘negligent conduct was
a substantial factor in bringing about the injuries,’ even where
there are ‘other intervening causes which were foreseeable or
were normal incidents of the risk created.’” Brown v. United
States Stove Co., 98 N.J. 155, 171 (1984) (quoting Rappaport,
supra, 31 N.J. at 203). A substantial factor is one that is
45
“not a remote, trivial or inconsequential cause.” Model Jury
Charge (Civil) § 6.13.
We have determined that there must be a new trial because
of the erroneous inclusion of the Scafidi charge. At the new
trial, the jury charge must explain the parties’ legal theories
and the proofs in relation to the governing law. In addition,
the substantial-factor test will be the test for deciding
proximate cause.
VIII.
For the reasons explained, we affirm and modify the
judgment of the Appellate Division. Accordingly, the no-cause
verdict is vacated, and a new trial is ordered. This matter is
remanded to the Law Division for proceedings consistent with
this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and PATTERSON
and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join
in JUSTICE ALBIN’s opinion.
46
SUPREME COURT OF NEW JERSEY
NO. A-13 SEPTEMBER TERM 2012
ON APPEAL FROM Appellate Division, Superior Court
JUDY KOMLODI, as Guardian for
MICHELLE KOMLODI, an
Incapacitated person,
Plaintiff-Respondent,
v.
ANNE PICCIANO, M.D. and JFK
MEDICAL CENTER,
Defendants-Appellants.
DECIDED May 20, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY
AFFIRM AS
CHECKLIST MODIFIED/
VACATE/
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
6
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