TRACEY L. VIZZONI, ETC. VS. B.M.D. (L-0575-15, SOMERSET COUNTY AND STATEWIDE) , 459 N.J. Super. 554 ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1255-18T3
TRACEY L. VIZZONI, as
Executrix For The Estate Of APPROVED FOR PUBLICATION
Judith A. Schrope,
June 24, 2019
Plaintiff-Appellant, APPELLATE DIVISION
v.
B.M.D., J.D., and ATLOCK FARM,
Defendants,
and
STEFAN LERNER,
Defendant-Respondent.
_________________________________
Argued March 28, 2019 – Decided June 24, 2019
Before Judges Simonelli, Whipple and Firko.
On appeal from the Superior Court of New Jersey,
Law Division, Somerset County, Docket No. L-0575-
15.
Justin Lee Klein argued the cause for appellant
(Hobbie, Corrigan & DeCarlo, PC, attorneys;
Jacqueline DeCarlo, of counsel; Justin Lee Klein, on
the briefs).
Sam Rosenberg argued the cause for respondent
(Rosenberg Jacobs Heller & Fleming, PC, attorneys;
Sam Rosenberg, of counsel; Matthew E. Blackman, on
the brief).
Shook, Hardy & Bacon LLP, attorneys for amici
curiae American Medical Association and Medical
Society of New Jersey (Philip S. Goldberg, on the
brief).
The opinion of the court was delivered by
WHIPPLE, J.A.D.
Plaintiff Tracey L. Vizzoni, as executrix for the estate of Judith A.
Schrope, appeals from a May 11, 2018 Law Division order granting summary
judgment and dismissing her negligence claims against defendant Stefan
Lerner, M.D.1 Tragically, Lerner's patient, B.M.D., 2 struck and killed Judith
Schrope while driving. Plaintiff argues Lerner's negligent prescription of
medication to B.M.D. was the proximate cause of the fatal crash. For the
reasons that follow, we affirm the order of the trial court.
1
Stefan Lerner, M.D. was improperly pled as Stefan Lerner.
2
Due to the confidential medical information in the record, we use initials for
B.M.D. and J.D. to protect their privacy.
A-1255-18T3
2
I.
We discern the following facts from the record and view them in the
light most favorable to plaintiff. See Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995). On June 17, 2014, at around 9:45 in the morning,
B.M.D., driving her SUV, struck decedent Schrope as Schrope was riding her
bicycle on the right-hand side of a residential road. B.M.D. approached
Schrope from behind and saw her in the distance. Visibility was clear and
there were no cars approaching from the other direction. At the scene of the
accident, B.M.D. gave a recorded statement to police. The officer conducting
the interview asked B.M.D. if she was being treated for any medical
conditions, and she responded "mild depression." She reported to the officer
she had taken Paxil that day and had a glass of wine the prior evening. There
is no evidence in the record that the police conducted a field sobriety check.
The police did not request a blood draw or an Alcotest. A police report
concluded, "[B.M.D.] made no attempt to move over to the left and safely pass
Mrs. Schrope. [Even though] [t]he width of the roadway was measured
[twenty] feet [nine] inches[,] which would have allowed ample space for
[B.M.D.] to move over and safely pass Mrs. Schrope." Despite the fact that
Schrope suffered fatal injuries, B.M.D. was only charged with and convicted
of careless driving, N.J.S.A. 39:4-97, after a trial in municipal court.
A-1255-18T3
3
On May 4, 2015, plaintiff filed a wrongful death and survivorship claim
against B.M.D.3 Through discovery, plaintiff learned B.M.D. was under the
care of psychiatrist Stefan Lerner, M.D, and plaintiff named him as a
defendant in a first amended complaint. During B.M.D.'s deposition, she was
asked about what medications she took. At the time of the crash, B.M.D. was
prescribed at least six psychiatric medications, including: (1) duloxetine
(Cymbalta); (2) lamotrigine (Lamictal); (3) lithium carbonate (Lithobid); (4)
trazadone; (5) dexmethylphenidate hydrochloride (Focalin); and (6)
methylphenidate (Concerta). B.M.D. admitted she took duloxetine,
lamotrigine and lithium carbonate on the morning of the crash. When asked if
she took trazodone the night before the crash, she testified she did not know,
and, when asked if it was possible, she answered "it's possible." She also
consumed some wine the night before. B.M.D. also testified she did not
experience side effects from her medications except for Focalin.
Focalin is a central nervous system stimulant used to treat Attention
Deficit Disorder (ADD) and Attention Deficit Hyperactivity Disorder
(ADHD). B.M.D. admitted Focalin made her "feel a little speedy" as if she
was "on speed." She initially denied taking Focalin on the day of the crash
3
Plaintiff also named B.M.D.'s husband J.D., who owned the car, and Atlock
Farm, B.M.D.'s employer. Both were dismissed in an order for summary
judgment that is not before us.
A-1255-18T3
4
because "[i]t had such bad ramifications, I didn't want to bring it up," but later
admitted it was possible she "took half of the dose I should have."
On June 8, 2014, Lerner mailed B.M.D. a prescription for Concerta
without meeting with her in person. Concerta is also a central nervous system
stimulant. B.M.D. testified she did not complain to Lerner of any adverse
reaction to Focalin, and Lerner did not document why he wrote her a new
prescription. In her deposition, B.M.D. could not recall whether she took
either one, neither or both Focalin and Concerta on the morning of the crash.
Lerner began working with B.M.D. in 2001. Over the course of thirteen
years, up and until the crash, he wrote her 160 initial prescriptions and over
250 refill prescriptions. Lerner diagnosed B.M.D. with Major Depressive
Disorder, ADD and panic disorder but not bi-polar disorder, although he
opined she exhibited bi-polar-like symptoms. During her testimony, B.M.D.
exhibited limited knowledge about the purpose and effect of each drug she was
prescribed and admitted she often altered dosages without consulting Lerner.
She denied Lerner ever warned her against driving after ingesting her
medication. However, Lerner testified he would have warned her, especially if
she felt drowsy or light-headed.
B.M.D. sometimes missed her appointments with Lerner. Lerner
explained this was problematic because he did not want to alter B.M.D.'s
A-1255-18T3
5
medication regimen and recognized the importance of meeting with her in
person to determine how she was responding to the medication. Lerner
acknowledged he sometimes mailed prescriptions to B.M.D. without meeting
with her in person and admitted to mailing her a prescription for Concerta on
June 8, 2014. Prior to the crash, B.M.D.'s last meeting with Lerner was April
3, 2014.
Several years before the accident, B.M.D. told Lerner she had panic
attacks that either occurred while she was driving or left her feeling like she
could not drive. She reported experiencing one panic attack while driving so
severe that she had to pull over. Lerner was aware B.M.D. experienced panic
attacks while driving but was under the impression "she has [not] had much
trouble in that area" because she continued to drive without incident.
Although plaintiff's complaint names B.M.D.'s pharmacist as "John/Jane
Doe Doctors/Pharmacists," the record lacks any mention of who filled
B.M.D.'s prescriptions. Of particular significance is the absence of any record
or testimony about whether B.M.D.'s pharmacist provided written or oral
warnings of the potential side effects of the medications. No pharmacy
records are included in the appellate record.
Lerner moved for summary judgment on March 27, 2018. Lerner argued
he owed no duty of care to Schrope because she was not a readily identifiable
A-1255-18T3
6
victim. Lerner argued a therapist has no duty to warn unless he or she knows
or should know their patient intends to harm a readily identifiable victim.
Plaintiff opposed Lerner's motion and submitted the report of two
experts. Robert J. Pandina, Ph.D., opined B.M.D.'s ability to operate a motor
vehicle was impaired when she struck Schrope. 4 Pandina explained the
purpose and possible side effects of each of the medications B.M.D. was
prescribed as follows:
a. Duloxetine (Cymbalta) is an anti-depression
medication prescribed for major depression; it has a
half-life of [twelve] to [seventeen] hours, which is
relatively long for such medications. To be effective
the medication should be taken daily and requires a
buildup period for efficacy. Given the long half-life
the potential exists for a buildup of the drug that
increases the risk of side effects hence careful
monitoring of the medication is advisable as is close
observation of the patient response to the medication.
Side effects include: fatigue; drowsiness and sedation;
double vision; crossed eyes; blurred vision; dizziness
and lack of coordination; [i]nsomnia; impulsivity;
anxiety; vivid dreams or nightmares; dry mouth,
mouth ulcers; memory problems; mood changes;
itchiness; runny nose; cough; and nausea. Use may
also trigger panic attacks. Some patients have
reported experiencing a loss of concentration, even
4
In reviewing Pandina's opinion, we note the documents that formed the basis
of his opinion included municipal court transcripts. Our record only included
the portion of the transcript containing the municipal court judge's decision
after a two day hearing. We asked for the complete transcripts, and they were
provided.
A-1255-18T3
7
with very small doses. Women are more likely than
men to have side-effects.
b. Lamotrigine (Lamictal) is prescribed for seizure
disorders. On-set of effect ranges from 1.4 to 4.8
hours. It has a half-life of [twenty-nine] hours, which
is relatively long for such medications. As is the case
with [duloxetine (Cymbalta)] [due to] the long half-
life the potential exists for a buildup of the drug that
increases the risk of side effects hence careful
monitoring of the medication is advisable as is close
observation of the patient response to the medication.
Lamotrigine is also an indicated medication option for
the treatment of bipolar disorders. However, many
clinicians also use it in patients with a (unipolar)
depressive disorder who have not responded
adequately to conventional antidepressants. Such
usage would be considered "off label." Side effects
are similar to those of [d]uloxetine (Cymbalta) and
include: tremors, dizziness; tired feeling; blurred
vision, double vision; loss of coordination; sleep
problems. Given the risk of side effects patients
should be carefully monitored specifically when the
medication is given along with other anti-depressants.
c. Lithium carbonate (Lithobid) is prescribed
principally for bi-polar depression. It may be used in
cases where other forms of medications are not
effective. In some case[s] of apparent major
depression with fewer manic than depressive
symptoms the drug may be used as an adjunctive
therapy. Side effects include loss of balance or
coordination, drowsiness or muscle weakness; hand
tremors; confusion; memory problems; lack of
awareness; blurred vision. Prescription of this
medication requires frequent monitoring of blood to
assure levels are within frequent therapeutic limits.
d. Trazadone is a medication used in the treatment of
major depression. It may also be prescribed as a sleep
A-1255-18T3
8
aid. The medication has a bi-phasic half-life. The
first phase ranges between [three] to [six] hours;
subsequent phase range[s] between [five] and [nine]
hours. Initial effectiveness occurs approximately one
hour post ingestion. Side effects include: drowsiness
and sedation; dizziness or loss of balance; confusion;
blurred vision; impairment of vigilance. Alcohol use
will increase risk of sedation and other side effects.
e. [Dexmethylphenidate hydrochloride (Focalin)] is a
central nervous system (CNS) stimulant employed in
treatment of ADD and [ADHD]. Side effects include:
blurred vision; dizziness; drowsiness; agitation; heart
palpitations. Special care should be taken in using
stimulants to treat ADD and ADHD in patients with
comorbid bipolar disorder. The concern stems from
the potential for possible induction of a mixed/manic
episode in such patients. Before initiating treatment
with a stimulant, patients with comorbid depressive
symptoms should be adequately screened to determine
if they are at risk for bipolar disorder. Prescription of
these medications is contra-indicated for such
individuals.
f. [Methylphenidate (Concerta)5] is a [CNS] stimulant
employed in treatment of ADD and [ADHD]. Side
effects include: blurred vision; dizziness; drowsiness;
agitation; heart palpitations. Special care should be
taken in using stimulants to treat ADD and ADHD in
patients with comorbid bipolar disorder. The concern
stems from the potential for possible induction of a
mixed/manic episode in such patients. Before
initiating treatment with a stimulant, patients with
comorbid depressive symptoms should be adequately
screened to determine if they are at risk for bipolar
5
Both Focalin and Concerta are designated as Schedule II controlled
dangerous substances by the federal government. 21 C.F.R. § 1308.12(d).
A-1255-18T3
9
disorder. Prescription of these medications is contra-
indicated for such individuals.
Plaintiff's second expert, Alberto M. Goldwaser, M.D., opined Lerner's
treatment of B.M.D. "fell outside the acceptable professional standards of care
as they apply to the practice of neuropsychiatry/psychiatry, and such deviation
was a significant contributing factor in causing the motor vehicle collision . . .
[that] resulted in the death of Ms. Judith Schrope." Goldwaser criticized
Lerner for prescribing medication without an accompanying diagnosis and then
prescribing additional medication to counteract negative side effects. Instead,
Goldwaser opined Lerner should have treated B.M.D.'s underlying mental
health issues rather than only treat her symptoms.
On May 11, 2018, after oral argument, the trial judge agreed with Lerner
that because there was no connection between Lerner and Schrope, Lerner did
not owe her a duty of care. The trial judge noted that many substances could
render a driver sleepy and "all of them are clearly marked with those kin ds of
warning[s]." The judge also stated the record did not establish "that []
[B.M.D.] was drunk or intoxicated." Thus, the trial judge granted Lerner's
motion for summary judgment.
Plaintiff moved for leave to appeal, which we denied. The Supreme
Court granted plaintiff's motion for leave to appeal and summarily remanded
the case to us to review the May 11, 2018 order on the merits. On January 16,
A-1255-18T3
10
2019, the American Medical Association and the Medical Society of New
Jersey moved for leave to appear as amici curiae. Pursuant to Rule 1:13-9(a),
we granted amici leave to file a brief.
On appeal, plaintiff argues New Jersey law is ripe for an extension of a
prescribing practitioner's duty of care and urges us to adopt the reasoning from
other jurisdictions that a prescribing practitioner owes a duty to warn their
patient of adverse side effects of medications for the benefit of third parties.
For the reasons that follow, we decline to do so.
II.
"[W]e review the trial court's grant of summary judgment de novo under
the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l
Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). A motion for
summary judgment should be granted "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact challenged and that
the moving party is entitled to a judgment or order as a matter of law." R.
4:46-2(c). The evidence must be viewed "in the light most favorable to the
non-moving party." Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512,
524 (2012).
A-1255-18T3
11
However, "Rule 4:46-2(c)'s 'genuine issue [of] material fact' standard
mandates that the opposing party do more than 'point[] to any fact in dispute'
in order to defeat summary judgment." Globe Motor Co. v. Igdalev, 225 N.J.
469, 479 (2016) (alterations in original) (quoting Brill, 142 N.J. at 529).
"[W]hether there exists a 'genuine issue' of material fact that precludes
summary judgment requires the motion judge to consider whether the
competent evidential materials presented . . . are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the non-moving
party." Brill, 142 N.J. at 540. "To defeat a motion for summary judgment, the
opponent must 'come forward with evidence that creates a genuine issue of
material fact.'" Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014)
(quoting Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32
(App. Div. 2012)). "[C]onclusory and self-serving assertions by one of the
parties are insufficient to overcome the motion . . . ." Puder v. Buechel, 183
N.J. 428, 440-41 (2005).
"The motion court must analyze the record in light of the substantive
standard and burden of proof that a factfinder would apply in the event that the
case were tried." Globe Motor Co, 225 N.J. at 480. "Thus, 'neither the motion
court nor an appellate court can ignore the elements of the cause of action or
the evidential standard governing the cause of action.'" Id. at 480-81 (quoting
A-1255-18T3
12
Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). We consider, as the trial judge did,
"whether the evidence presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must prevail as a matter of
law." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-
46 (2007) (quoting Brill, 142 N.J. at 536).
"If there is no genuine issue of material fact, we must then 'decide
whether the trial court correctly interpreted the law.'" DepoLink Court
Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.
Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494
(App. Div. 2007)). We review issues of law de novo and accord no deference
to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478
(2013).
To sustain a cause of action for negligence, a plaintiff must establish
four elements: "(1) [a] duty of care, (2) [a] breach of [that] duty, (3) proximate
cause, and (4) actual damages[.]" Polzo v. Cty. of Essex, 196 N.J. 569, 584
(2008) (alterations in original) (quoting Weinberg v. Dinger, 106 N.J. 469, 484
(1987)). A "plaintiff bears the burden of establishing those elements 'by some
competent proof[.]'" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406
(2014) (citation omitted) (quoting Overby v. Union Laundry Co., 28 N.J.
Super. 100, 104 (App. Div. 1953)). Proximate cause consists of "any cause
A-1255-18T3
13
which in the natural and continuous sequence, unbroken by an efficient
intervening cause, produces the result complained of and without which the
result would not have occurred." Conklin v. Hannoch Weisman, 145 N.J. 395,
418 (1996) (quoting Fernandez v. Baruch, 96 N.J. Super. 125, 140 (App. Div.
1967), rev'd on other grounds, 52 N.J. 127 (1968)); Dawson v. Bunker Hill
Plaza Assocs., 289 N.J. Super. 309, 322 (App. Div. 1996).
Determining the scope of tort liability presents a question of law. Kelly
v. Gwinnell, 96 N.J. 538, 552 (1984). "The question of whether a duty to
exercise reasonable care to avoid the risk of harm to another exists is one of
fairness and policy that implicates many factors." Carvalho v. Toll Bros. &
Developers, 143 N.J. 565, 572 (1996). The inquiry "turns on whether the
imposition of such a duty satisfies an abiding sense of basic fairness under all
of the circumstances in light of considerations of public policy." Hopkins v.
Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). "The analysis is both very
fact-specific and principled; it must lead to solutions that properly and fairly
resolve the specific case and generate intelligible and sensible rules to govern
future conduct." Ibid."Foreseeability of the risk of harm is the foundational element in the
determination of whether a duty exists." J.S. v. R.T.H., 155 N.J. 330, 337
(1998). "Foreseeability is significant in the assessment of a duty of care to
A-1255-18T3
14
another; moreover, it has a dual role in the analysis of tort responsibility."
Olivo v. Owens-Ill., Inc., 186 N.J. 394, 402 (2006). In the duty of care
analysis, foreseeability "is based on the defendant's knowledge of the risk of
injury and is susceptible to objective analysis." J.S., 155 N.J. at 338. That
knowledge may arise from actual awareness, Carvalho, 143 N.J. at 576, or
knowledge may be constructive when the defendant "was in a position to
foresee and discover the risk of harm[.]" Id. at 578. "In some cases where the
nature of the risk or the extent of harm is difficult to ascertain, foreseeability
may require that the defendant" know a certain class of reasonably foreseeable
persons would likely suffer injury. J.S., 155 N.J. at 338; see also C.W. v.
Cooper Health Sys., 388 N.J. Super. 42, 62 (App. Div. 2006); Safer v. Estate
of Pack, 291 N.J. Super. 619, 626-27 (App. Div. 1996). "Also included in the
analysis is 'an assessment of the defendant's "responsibility for conditions
creating the risk of harm" and an analysis of whether the defendant had
sufficient control, opportunity, and ability to have avoided the risk of harm.'"
Podias v. Mairs, 394 N.J. Super. 338, 350 (App. Div. 2007) (quoting J.S., 155
N.J. at 339).
"Once the foreseeability of an injured party is established, . . .
considerations of fairness and policy govern whether the imposition of a duty
is warranted." Carvalho, 143 N.J. at 573 (alteration in original) (quoting
A-1255-18T3
15
Carter Lincoln-Mercury, Inc. v. EMAR Grp., Inc., Leasing Div., 135 N.J. 182,
194-95 (1994)). The assessment of fairness and policy "involves identifying,
weighing, and balancing several factors—the relationship of the parties, the
nature of the attendant risk, the opportunity and ability to exercise care, and
the public interest in the proposed solution." Hopkins, 132 N.J. at 439.
Although in many cases a duty of care can arise
simply from the determination of the foreseeability of
harm, usually "more is needed" to find such a duty,
that "'more' being the value judgment, based on an
analysis of public policy, that the actor owed the
injured party a duty of reasonable care."
[Carvalho, 143 N.J. at 573 (quoting Kelly, 96 N.J. at
544).]
"Public policy must be determined in the context of contemporary
circumstances and considerations." J.S., 155 N.J. at 339. "Thus, '"[d]uty" is
not a rigid formalism' that remains static through time, but rather is a
malleable concept that 'must of necessity adjust to the changing social
relations and exigencies and man's relations to his fellows.'" Ibid. (alteration
in original) (quoting Wytupeck v. Camden, 25 N.J. 450, 462 (1957)).
New Jersey courts have recognized a mental-health professional owes a
duty to take reasonable steps to protect a readily identifiable victim put at risk
by their patient. In McIntosh v. Milano, 168 N.J. Super. 466, 489 (Law. Div.
1979), the Superior Court held a therapist had a duty to protect a readily
A-1255-18T3
16
identifiable victim who was murdered by his patient, because the therapist had
reason to know his patient presented a danger to the victim. McIntosh was
decided in light of Tarasoff v. Regents of University of California, 551 P.2d
334, 353 (Cal. 1976), where the Supreme Court of California held a
psychiatrist had a duty to protect a readily identifiable victim of his patient
when the patient informed the psychiatrist of his intent to murder the victim.
Tarasoff recognized that while one has no duty to control the actions of
another, a mental-health professional is often in the best position to determine
"whether a patient presents a serious danger of violence." Id. at 345. It was
not necessary for the psychiatrist in Tarasoff to have prevented the harm, but
rather, the psychiatrist should have exercised "that reasonable degree o f skill,
knowledge, and care ordinarily possessed and exercised by members of [that
professional specialty] under similar circumstances." Ibid. (alteration in
original) (quoting Bardessono v. Michels, 478 P.2d 480, 484 (Cal. 1970)). In
McIntosh, the Law Division observed that the therapist's duty arises from the
special relationship between therapist and patient, and the duty is solidified
when the therapist knows or should know the patient intends harm or as an
extension of the healthcare professional's broad-based duty to protect the
welfare of the community. 168 N.J. Super. at 489-90; see also Restatement
(Second) of Torts § 315 (Am. Law Inst. 1965) ("There is no duty so to control
A-1255-18T3
17
the conduct of a third person as to prevent him from causing physical h arm to
another unless (a) a special relation exists between the actor and the third
person which imposes a duty upon the actor to control the third person's
conduct, or (b) a special relation exists between the actor and the other which
gives to the other a right to protection."). Prior to and since McIntosh, both
New Jersey courts and our Legislature expanded the special relationship rule
to include the duty to warn potential victims of contagious or genetic diseases. 6
McIntosh led to the enactment of N.J.S.A. 2A:62A-16, which immunized
licensed medical professionals "from any civil liability for a patient's violent
act against another person or against himself unless the practitioner has
incurred a duty to warn and protect the potential victim[.]" N.J.S.A. 2A:62A-
16(b) explains a duty to warn and protect arises if "[t]he patient has
6
For example, in Safer, the defendant-doctor knew his patient had a
genetically transmissible form of cancer but failed to warn the patient's family
members. 291 N.J. Super. at 623. The doctor's failure to warn was a breach of
his duty to the family members because they were a readily identifiable class
of persons put at risk by the doctor's failure to act. Id. at 625 ("We see no
impediment, legal or otherwise, to recognizing a physician's duty to warn those
known to be at risk of avoidable harm from a genetically transmissible
condition. In terms of foreseeability especially, there is no essential difference
between the type of genetic threat at issue here and the menace of infection,
contagion or a threat of physical harm."). In C.W., the court applied a similar
principle and held a physician who failed to warn his patient of a positive HIV
test owed a duty to third parties threatened by his patient's health status. 388
N.J. Super. at 62.
A-1255-18T3
18
communicated to that practitioner a threat of imminent, serious physical
violence against a readily identifiable individual" or if "[t]he circumstances are
such that a reasonable professional . . . would believe the patient intended to
carry out an act of imminent, serious physical violence against a readily
identifiable individual[.]" In one instance, N.J.S.A. 2A:62A-16 was applied to
immunize a psychiatrist who reasonably did not know his patient intended to
commit suicide. Marshall v. Klebanov, 188 N.J. 23, 40 (2006). 7
Here, the trial court relied on McIntosh and the principle that unless the
victim of a therapist's patient is readily identifiable, there is no duty to act for
the victim's benefit. The trial court concluded that because Lerner did not
know Schrope and had no indication B.M.D. was going to harm her, Lerner did
not owe Schrope a duty of care. Although we affirm the trial court's dismissal
of plaintiff's claims as a matter of law, we think reliance on McIntosh, and the
principles therein, was misplaced.
7
Health care professionals are subject to other statutory duties, such as: a duty
to warn a patient about the addictive risks of opioids before prescribing them
for pain management, N.J.S.A. 24:21-15.2(d); the duty to report a patient's
diagnosis of certain communicable diseases to the Department of Health,
N.J.S.A. 26:4-15; the duty to report a patient's history of convulsive seizures
or periods of unconsciousness to the Division of Motor Vehicles, N.J.S.A.
39:3-10.4; and, in the case of a pharmacy permit holder, the duty to report
information about each prescription for a controlled dangerous substance
dispensed by the pharmacy, N.J.S.A. 45:1-45.
A-1255-18T3
19
In cases analyzing the duty of care owed within the context of a special
relationship, the principal question is whether the defendant had a duty to act
for the benefit of another but failed to do so. See Podias, 394 N.J. Super. at
346 ("Traditional tort theory emphasizes individual liability, which is to say
that each particular defendant who is to be charged with responsibility must be
proceeding negligently. Ordinarily, then, mere presence at the commission of
the wrong, or failure to object to it, is not enough to charge one with
responsibility inasmuch as there is no duty to take affirmative steps to
interfere."); McIntosh, 168 N.J. Super. at 483 (explaining that generally a
person has no duty to control the actions of another except within the context
of a special relationship). But here, Lerner acted affirmatively by prescribing
medication to B.M.D. Thus, we must examine the legal consequences of
Lerner's action.
The Restatement (Third) of Torts: Liability for Physical and Emotional
Harm makes this same distinction. Restatement (Third) of Torts: Liability for
Physical and Emotional Harm § 41 cmt. h (Am. Law Inst. 2005) (Restatement
(Third) of Torts). Section 41 of the Restatement (Third) of Torts revised and
replaced Restatement (Second) of Torts § 315, which provided the basis for the
special relationship exception. See McIntosh, 168 N.J. Super. at 483 (citing
Restatement (Second) of Torts § 315 for the proposition that generally a
A-1255-18T3
20
person has no duty to control another's conduct unless a special relationship
exists between the two); Restatement (Third) of Torts § 41 cmt. a ("This
Section replaces §[] 315(a) . . . and includes an additional relationship creating
an affirmative duty, that of mental health professional and patient."). Section
41 adopts a categorical approach and provides:
(a) An actor in a special relationship with another
owes a duty of reasonable care to third parties with
regard to risks posed by the other that arise within the
scope of the relationship. (b) Special relationships
giving rise to the duty . . . include: . . . (4) a mental-
health professional with patients.
[Restatement (Third) of Torts § 41.]
However, the comments to section 41 distinguish between scenarios where the
practitioner is under an affirmative duty to act versus when the practitioner's
conduct creates a foreseeable risk of harm. Id. cmt. h. When a practitioner
prescribes either appropriate or inappropriate medication that impairs the
patient, who in turn puts others at risk, the practitioner was under a duty to
exercise reasonable care in making that decision. Ibid. ("In some cases, care
provided to a patient may create risks to others. This may occur because of
negligent treatment, such a prescribing an inappropriate medication that
impairs the patient. It can also occur because of appropriate care of the
patient, such as properly prescribing medication that impairs the patient.").
Thus, the question is not whether the practitioner had a duty to act, but rather
A-1255-18T3
21
were the consequences of the act of prescribing medication foreseeable to the
practitioner. See ibid. ("In these instances, the physician's duty to third parties
is governed by [Restatement (Third) of Torts] § 7, not by this Chapter."); see
also Restatement (Third) of Torts § 7(a) ("An actor ordinarily has a duty to
exercise reasonable care when the actor's conduct creates a risk of physical
harm.").
Here, the parties do not dispute Lerner had a duty to exercise reasonable
care in his treatment of B.M.D. See, e.g., Komlodi v. Picciano, 217 N.J. 387,
410 (2014) ("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."). Accordingly, the parties agree that B.M.D. may have a
cause of action against Lerner premised on the patient-practitioner
relationship. See, e.g., Verdicchio v. Ricca, 179 N.J. 1, 23 (2004) ("A medical
malpractice case is a kind of tort action in which the traditional negligence
elements are refined to reflect the professional setting of a physician-patient
relationship."). It would defy logic to suggest that the duty of care Lerner
owes B.M.D., within the patient-practitioner relationship, is somehow
diminished because B.M.D. is not seeking to hold Lerner directly liable. Here,
Lerner did have a duty to warn and educate B.M.D. about the side effects of
the medications he prescribed. See In re Accutane Litig., 235 N.J. 229, 265-66
A-1255-18T3
22
(2018) (describing the learned intermediary doctrine, which acknowledges the
prescribing practitioner must deliver pharmaceutical warnings to patients as
the intermediary between pharmaceutical manufacturers and consumers). As a
result, Lerner can only be held liable for the foreseeable consequences of his
actions.
Thus, the issue in this case is properly framed as one of proximate cause,
not the duty of care. "[A] plaintiff must show that a defendant's conduct
constituted a cause-in-fact of his injuries." Dawson, 289 N.J. Super. at 322.
"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.'" Conklin, 145 N.J. at 417 (quoting Vuocolo v. Diamond Shamrock
Chems. Co., 240 N.J. Super. 289, 295 (App. Div. 1990)). "[A]n act or
omission is not regarded as a cause-in-fact of an event if the event would have
occurred without such act or omission." Thorn v. Travel Care, Inc., 296 N.J.
Super. 341, 346 (App. Div. 1997). "[T]here may be multiple causes of an
injury, [though] these causes 'need not, of themselves, be capable of producing
the injury; it is enough if they are "a substantial factor" in bringing it about.'"
Id. at 347 (quoting Conklin, 145 N.J. at 419).
"Proximate cause has been described as a standard for limiting liability
for the consequences of an act based 'upon mixed considerations of logic,
A-1255-18T3
23
common sense, justice, policy and precedent.'" Fleuhr v. City of Cape May,
159 N.J. 532, 543 (1999) (quoting Caputzal v. Lindsay Co., 48 N.J. 69, 77-78
(1966)). "Proximate cause is a limitation the common law has placed on an
actor's responsibility for the consequences of the actor's conduct." Camp v.
Jiffy Lube No. 114, 309 N.J. Super. 305, 309 (App. Div. 1998). "As a
practical matter, legal responsibility must be limited to those causes which are
so closely connected with the result and of such significance that the law is
justified in imposing liability." Brown v. U.S. Stove Co., 98 N.J. 155, 173
(1984) (quoting Caputzal, 48 N.J. at 78).
"Ordinarily, the issue of proximate cause should be determined by the
factfinder." Fleuhr, 159 N.J. at 543. "Proximate cause as an issue, however,
may be removed from the factfinder in the highly extraordinary case in wh ich
reasonable minds could not differ on whether that issue has been established."
Ibid. "[O]ur courts have, as a matter of law, rejected the imposition of liability
for highly extraordinary consequences." J.S., 155 N.J. at 352. Our Supreme
Court has explained
to prove the element of causation, plaintiffs bear the
burden to "introduce evidence which affords a
reasonable basis for the conclusion that it is more
likely than not that the conduct of the defendant was a
cause in fact of the result. A mere possibility of such
causation is not enough; and when the matter remains
one of pure speculation or conjecture, or the
probabilities are at best evenly balanced, it becomes
A-1255-18T3
24
the duty of the court to direct a verdict for the
defendant."
[Townsend v. Pierre, 221 N.J. 36, 60-61 (2015)
(quoting Davidson v. Slater, 189 N.J. 166, 185
(2007)).]
See also Thorn, 296 N.J. Super. at 347 ("[A]lthough plaintiffs bear the burden
of proving causation, 'they are not obliged to establish it by direct, indisputable
evidence.' Instead, '[t]he matter may rest upon legitimate inference, so long as
the proof will justify a reasonable and logical inference as distinguished from
mere speculation.'" (quoting Kulas v. Pub. Serv. Elec. & Gas Co., 41 N.J. 311,
319 (1964))).
In Townsend, the Supreme Court held summary judgment was properly
granted when the non-moving party failed to put forward any competent
evidence to prove proximate cause. 221 N.J. at 61. Similarly, in Fleuhr, the
Supreme Court reinstated a grant of summary judgment because dangerous
ocean conditions and a surfer's negligence, not a lifeguard's conduct, caused
the injury. 159 N.J. at 543-45. Proximate cause may also be removed from
the jury's determination if causation depends on the validity of an expert's
report. See Townsend, 221 N.J. at 57-58 (rejecting an expert's opinion on
causation because it diverged from the evidence); Dawson, 289 N.J. Super. at
324 (holding that summary judgment was proper when an expert offered a net
opinion of causation and the non-moving party could not make "a prima facie
A-1255-18T3
25
showing of a causal relationship between [the injury] and [the] alleged
negligent conduct"). "Thus, in the unusual setting in which no reasonable
factfinder could find that the plaintiff has proven causation by a preponderance
of the evidence, summary judgment may be granted dismissing the plaintiff's
claim." Townsend, 221 N.J. at 60.
III.
We liken this case to instances of social host liability and dram shop
cases. In such scenarios there are really two actions that cause the injury: "A"
provides alcoholic beverages to visibility intoxicated "B," and B injures "C,"
an innocent third party. Although A and B have no special relationship, A's
negligent provision of alcohol to B was a proximate cause of C's injury. The
thread connecting A to C is that A was, in part, responsible for B's
intoxication, and B's intoxication caused C's injury. However, in our case, the
common thread connecting Lerner to Schrope is missing: the record contains
no evidence B.M.D. was impaired at the time she caused Schrope's fatal
injuries.
Social host or tavern owner liability is tempered by the "visibly
intoxicated" requirement. For example, in Kelly, social hosts provided a guest
with "two or three drinks of scotch on the rocks" "an hour or two" before the
guest was involved in a head-on collision. 96 N.J. at 541. An expert
A-1255-18T3
26
concluded that, at the time of the car crash, the guest had consumed "the
equivalent of thirteen drinks" and "must have been showing unmistakable
signs of intoxication" at the social hosts' home. Ibid. As a result, the social
hosts had knowledge of the risk of harm the guest presented to other drivers
and it was fair to hold the social hosts liable for providing the alcohol that
caused the collision. Id. at 543-44 ("[O]ne could reasonably conclude that the
[social hosts] must have known that their provision of liquor was causing [the
guest] to become drunk, yet they continued to serve him even after he was
visibly intoxicated. By the time [the guest] left, [he] was in fact severely
intoxicated. A reasonable person in [the social hosts'] position could foresee
quite clearly that this continued provision of alcohol to [the guest] was making
it more and more likely that [the guest] would not be able to operate his car
carefully.").
Under the New Jersey Licensed Alcoholic Beverage Server Fair Liability
Act, N.J.S.A. 2A:22A-1 to -7, and a comparable social host statute, N.J.S.A.
2A:15-5.6, a person injured by a patron or social guest may only recover from
the server or social host if the patron or social guest was "visibly intoxicated."
"'Visibly intoxicated' means a state of intoxication accompanied by a
perceptible act or series of acts which present clear signs of intoxication."
N.J.S.A. 2A:22A-3. Once a patron becomes visibly intoxicated, the social host
A-1255-18T3
27
or server is imputed with the knowledge that the patron presents a risk of harm
to others, and, as a result, it is fair to impose on the server or social host the
consequences that reasonably flow from the decision to over-serve the patron.
See Steele v. Kerrigan, 148 N.J. 1, 25-26 (1997) (explaining that social hosts
know their visibly intoxicated guests cannot safely operate a motor vehicle and
tavern owners are charged with "the more complete knowledge" of the harm an
intoxicated patron could cause, such as fighting or motor vehicle accidents).
Of course, the injured party must affirmatively prove the patron or social
guest was intoxicated when the injury was caused. In Halvorsen v. Villamil,
429 N.J. Super. 568, 573 (App. Div. 2013), no eyewitness was available to
testify a tavern served alcohol to a visibly intoxicated patron. However, that
was not fatal to the injured party's claim; rather, intoxication "may be proved
by both direct evidence and circumstantial evidence." Id. at 575. The plaintiff
presented evidence the patron had just left a restaurant, was driving erratically,
struck a slowing vehicle hard enough to cause it to flip, a police office r
smelled alcohol on his breath and he had a substantial blood-alcohol content.
Id. at 576-77. The plaintiff's expert used this information to opine that it was
likely the patron was visibly intoxicated while at the tavern. Id. at 577. We
explained that the expert report alone was insufficient to create a genuine issue
of material fact on the visible intoxication issue. Id. at 579. Instead, it was all
A-1255-18T3
28
the evidence of the patron's behavior before and after the crash that allowed a
reasonable jury to infer the tavern served the patron while he was visibly
intoxicated. Ibid.Similarly, here, plaintiff must make a prima facie showing that the crash
was caused by B.M.D.'s impairment. Based on our review of the record, we
agree with the trial court's finding that B.M.D. was not impaired or intoxicated
at the time of the crash. Plaintiff's expert reports to the contrary are based on
conclusory statements untethered to the observations of the police officers who
interviewed B.M.D. at the scene. In our view, plaintiff's proofs of prox imate
cause amount to "pure speculation or conjecture" and would force the jury to
hypothesize on whether B.M.D. was impaired.
Goldwaser and Pandina opined that the medication B.M.D. took on the
day of the crash compromised her ability to drive. Both experts based their
opinion on: court records, B.M.D.'s and Lerner's deposition testimony, Lerner's
treatment records, pharmacy and laboratory records, a police report, B.M.D.'s
statement to police and a crash reconstruction report. Pandina concluded
B.M.D. ingested "four (and possibly five) medications on the date of the
collision including: [d]uloxetine (Cymbalta), [lamotrigine] (Lamictal),
[l]ithium carbonate (Lithobid) and [dexmethylphenidate hydrochloride
(Focalin)]." Each of these medications carry side effects that, if experienced,
A-1255-18T3
29
may impair a person's ability to drive, including dizziness, sleepiness, blurred
vision and loss of coordination. However, the record lacks any evidence
B.M.D. was experiencing one or several of these side effects before, during or
after the fatal crash.
B.M.D. provided a statement to police and acknowledged she took some,
but not all, of her medications. In her deposition testimony, she admitted to
ingesting Focalin on the morning of the crash and that it had, in the past, made
her feel "speedy." Yet, police at the scene declined to question her further on
whether she was impaired by her medications. The police report does not
describe her as exhibiting behaviors that might be consistent with the side
effects of her medication, such as slurred words, squinting, lack of
coordination or other observable symptoms. Moreover, B.M.D. was only
charged with careless driving, not driving while intoxicated. Neither expert
applied their expertise in neuropsychology, psychiatry or clinical
psychopharmacology to prove how they knew B.M.D. was impaired even
though no officer at the scene observed she was exhibiting symptoms
consistent with the side effects of the medication.
Pandina opined his conclusion was supported by the crash
reconstruction. Prior to the crash, visibility was clear, no cars were
approaching from the other direction and B.M.D. had room to safely pass
A-1255-18T3
30
Schrope. However, Pandina does not explain how B.M.D.'s actions were
caused by the side effects of her medication. In part, Pandina based his
conclusion on an assertion that B.M.D.'s description of the crash given at the
scene was inconsistent with the reconstruction report. Yet, Pandina failed to
offer any explanation as to why he believed B.M.D.'s inconsistent recollection
was indicative of her impairment.
Instead, both expert reports conclude that if B.M.D. ingested all the
medication she was prescribed on the date of the crash, she could have
experienced all of the debilitating side effects. However, this conclusi on was
not based on B.M.D.'s observable behavior at the time of the crash. As a
result, the expert reports offer little more than conclusory assertions.
Considering the record's lack of direct or circumstantial evidence indicating
B.M.D. was impaired, the expert reports alone are insufficient to generate a
genuine issue of material fact on the issue of B.M.D.'s impaired driving. See
Townsend, 221 N.J. at 55 ("A party's burden of proof on an element of a claim
may not be satisfied by an expert opinion that is unsupported by the factual
record or by an expert's speculation that contradicts that record."); Dawson,
289 N.J. Super. at 324-25 (if an expert's report is without factual support, the
plaintiff must sustain a prima facie showing of proximate cause through other
reliable evidence). Therefore, we affirm the trial court's dismissal of plaintiff's
A-1255-18T3
31
claim as a matter of law, because no reasonable jury could find, based on the
proofs submitted, the medication Lerner prescribed caused B.M.D. to strike
Schrope with her car.
IV.
Cases from other jurisdictions confirm our conclusion that a prescribing
practitioner cannot be held liable for an injury caused by their patient unless
the injury was caused by the medication prescribed or narcotic administered.
In Coombes v. Florio, 877 N.E.2d 567, 572 (Mass. 2007) (Ireland, J.,
concurring), the Supreme Judicial Court of Massachusetts held, in a plurality
opinion, that "a physician owes a duty of reasonable care to everyone
foreseeably put at risk by his failure to warn of the side effects of his treatment
of a patient." The patient in Coombes was prescribed a variety of medications,
some of which caused drowsiness, but received no warning against driving.
Id. at 568-69. The patient lost consciousness while driving and struck the
plaintiff. Id. at 569.8
8
The Coombes decision was, in part, based on Cottam v. CVS Pharmacy, 764
N.E.2d 814 (Mass. 2002). There, the Massachusetts court held, as a general
matter, a pharmacist owes no duty to warn a customer of the potential adverse
side effects of a prescription. Id. at 819-20. Rather, the court applied the
learned intermediary doctrine and determined the physician was in a better
position to provide warnings in the context of the physician-patient
relationship. Id. at 820. The Coombes court applied Cottam and explained
"that a doctor's duty of reasonable care, owed to a patient, includes the duty to
(continued)
A-1255-18T3
32
McKenzie v. Hawaiʻi Permanente Medical Group, Inc., 47 P.3d 1209,
1211 (Haw. 2002), presented a similar factual scenario to Coombes, where a
patient, who was not informed of a side effect of medication, fainted whil e
driving and struck the plaintiff. The defendant-doctor argued, absent a special
relationship between him and his patient, he owed no duty to warn his patient
for the benefit of the plaintiff. Id. at 1210-11. The Supreme Court of Hawaiʻi
disagreed and cited to Restatement (Second) of Torts § 302 for the proposition
that "[a] negligent act or omission may be one which involves an unreasonable
risk of harm to another through . . . (b) the foreseeable action of the other[]
[or] a third person[.]" Id. 1213 (quoting Restatement (Second) of Torts § 302).
To be sure, "Restatement (Second) [of Torts] § 302 by itself does not create or
establish a legal duty; it merely describes a type of negligent act." Ibid. The
court then considered the cost of imposing a duty to warn and observed
"imposing a duty would create little additional burden upon physicians because
physicians already owe their own patients the same duty[.]" Id. at 1220.
Accordingly, the court held "[a] physician owes a duty to non -patient third
(continued)
provide appropriate warnings about side effects when prescribing drugs." 877
N.E.2d at 570. As a result, "[t]he occurrence of known side effects, and the
impact of such side effects on the patient's ability to drive, are foreseeable
results of that prescription." Id. at 573.
A-1255-18T3
33
parties injured in an automobile accident caused by an adverse reaction to . . .
medication" but qualified the holding by noting it applies "where the
circumstances are such that the reasonable patient could not have been
expected to be aware of the risk without the physician's warning." Id. at 1221-
22.
Courts in New Mexico and New York have explicitly distinguished
between cases where a medication is prescribed versus where it was
administered intravenously. In Davis v. South Nassau Communities Hospital,
46 N.E.3d 614, 616 (N.Y. 2015), the patient was administered an intravenous
pain killer; however, no hospital employee told the patient she should not
drive. Nineteen minutes after she left the hospital, the patient caused a car
accident. Ibid. The Davis court imposed a duty to warn on the hospital
because it was in the best position to do so and, under New York law,
prescribing practitioners were already required to explain the side effects of
medications to their patients. Id. at 618, 624. However, the Davis court
limited its holding to situations where a drug is administered intravenously.
Id. at 622 n.4 ("[W]e have recognized a duty of care running from a physician
to third parties where the physician fails to warn his or her patient of potential
physical impairments caused by a drug the physician has administered, rather
than merely prescribed, to the patient.").
A-1255-18T3
34
New Mexico courts have made a similar distinction. In a prescription
drug case, the Supreme Court of New Mexico focused on the amount of time
that had passed between when the prescription was written and when the injury
occurred. Lester v. Hall, 970 P.2d 590, 592 (N.M. 1998) ("[W]e determine
that the likelihood of injury to [the plaintiff] is not foreseeable to the degree
required in order to warrant a duty. The likelihood that a patient using
prescription lithium will cause a car accident five days after contact with the
doctor is considerably more remote in comparison to a patient who, injected
with a narcotic, will cause an accident while driving away from the doctors'
office."). But when a drug is administered intravenously, the practitioner does
owe a duty to warn against driving because the risk of harm is more
immediate. Wilschinsky v. Medina, 775 P.2d 713, 717 (N.M. 1989).
In Coombes, Davis, McKenzie and Wilschinsky, the patients either
became unconscious or received intravenous medication, leaving little doubt as
to the cause of the motor vehicle accident. Several of the cases Lerner relies
upon also involve a patient falling unconscious at the wheel. 9 The facts of
9
For example, the Supreme Court of Kansas dealt with a case where a patient
with a sleeping disorder was never warned not to drive and caused a car
accident. Calwell v. Hassan, 925 P.2d 422, 424-25 (Kan. 1996). In Calwell,
the patient experienced chronic daytime sleepiness and her physician
prescribed a sleep aid to encourage nighttime sleep. Id. at 425. The patient
never experienced sleepiness while driving, and her physician never felt it was
(continued)
A-1255-18T3
35
those cases eliminated the need to consider whether the patient's impairment
was the cause of the injury. But here, because B.M.D. was not demonstrably
impaired by her medication at the time she caused the fatal crash, Lerner
cannot be held liable for an injury unrelated to his conduct.
Affirmed.
(continued)
necessary to dissuade her from driving. Ibid. The Supreme Court of Kansas
focused on the relationship between practitioner and patient and held there was
no duty to warn. Id. at 433.
In Gilhuly v. Dockery, 615 S.E.2d 237, 238 (Ga. Ct. App. 2005), the
patient received intravenous medication that caused drowsiness, was never
warned against driving and subsequently caused a car accident. The Gilhuly
court concluded there was no duty to warn the patient because the doctor had
no special relationship with the "motoring public" and expanding a
practitioner's duty in this instance would expose the doctor to liability from the
public at large. Id. at 239. We do not consider Gilhuly persuasive because it
is more foreseeable that a patient who receives an intravenous narcotic would
experience immediate side effects than a patient who takes a prescription
outside the prescriber's care.
A-1255-18T3
36