Citation Numbers： 574 A.2d 398, 119 N.J. 93, 1990 N.J. LEXIS 55
Judges： Stein, Handler
Filed Date： 5/24/1990
Status： Precedential
Modified Date： 11/11/2024
The opinion of the Court was delivered by
In this medical malpractice case, the proofs presented as a factual issue whether the defendant’s failure properly to treat and arrest Jamie Scafidi’s early labor proximately caused the premature birth and death of her infant child. The trial court declined plaintiffs' request that it instruct the jury on causation in accordance with the “increased risk” standard authorized by our opinion in Evers v. Dollinger, 95 N.J. 399, 417, 471 A.2d 405 (1984). The court also refused to instruct the jury that it was
The Appellate Division held that the trial court committed reversible error by refusing to give the jury an Evers v. Dollinger charge, 225 N.J.Super. 576, 582, 543 A.2d 95 (1988), but sustained the trial court’s refusal to impose on defendant the burden of proving that damages could be apportioned. Id. at 584, 543 A.2d 95. We granted certification, 114 N.J. 471, 555 A.2d 599 (1989), and now affirm the judgment of the Appellate Division. We hold, however, that any damages awarded to plaintiffs on retrial, assuming that defendant’s proofs include evidence that the infant’s premature birth and death might have occurred even if defendant’s treatment had been proper, should be apportioned to reflect the likelihood that the premature birth and death would have been avoided by proper treatment. Thus, plaintiffs’ damages will be limited to the value of the lost chance for recovery attributable to defendant’s negligence.
I.
In July 1982, plaintiff Jamie Scafidi began the seventh month of a difficult pregnancy. On July 7th, she saw her regular obstetrician, Dr. Franzoni, because of severe bleeding that had started that morning. Dr. Franzoni warned that she “was sitting on a time bomb and * * * [was] threatening abortion.” He prescribed bed-rest and instructed her to call if any problems developed.
That afternoon she experienced intermittent abdominal cramps and attempted to communicate with Dr. Franzoni. Be
Ms. Scafidi took three of the vasodilian pills during the night, but the cramping continued. Dr. Franzoni examined her the following morning, observing that her cervix was dilated three centimeters. He hospitalized her immediately and began toco-lytic therapy, a means of arresting premature labor, using a solution of magnesium sulfate administered intravenously. The medication was unsuccessful. Later that day Ms. Scafidi gave birth to a twenty-eight-week gestated infant girl, weighing two pounds, six ounces. After two days of intensive care, the baby died of respiratory failure on July 10, 1982.
Plaintiffs instituted this action seeking damages for pain and suffering and wrongful death on behalf of the deceased infant, and individually for loss of services. Plaintiffs alleged that Dr. Seiler failed to examine, diagnose, and administer proper medication to Ms. Scafidi, resulting in the premature birth and death of her infant daughter. At trial Dr. Marshall Klavan, plaintiffs’ expert witness, testified that vasodilian administered orally was virtually valueless as a tocolytic agent. He stated that Dr. Seiler’s failure to have examined and hospitalized Ms. Scafidi and institute proper tocolytic therapy deviated from accepted standards and “directly related to the premature birth.” According to Dr. Klavan, timely administration of tocolytic therapy was seventy-five- to eighty-percent effective in arresting premature labor. Dr. Klavan asserted that “the
Dr. Richard Berman, defendant’s expert, testified that Dr. Seiler’s treatment was consistent with accepted standards. He stated that the outcome would not have been different even had tocolytic therapy begun after Ms. Scafidi spoke with defendant. He expressed the view that only twenty-five percent of patients receiving tocolytic therapy respond to it, and he could not determine whether it would have helped Ms. Scafidi. Acknowledging agreement with the concept that delay in initiating tocolytic therapy increases the risk of premature birth, Dr. Berman explained that the “biggest problem” is in determining whether to begin the treatment. However, he agreed that “retrospectively, the sooner it had been started, the better it would have been for her.”
Plaintiffs requested a jury instruction on causation that was consistent with this Court’s opinion in Evers v. Dollinger, supra, 95 N.J. at 417, 471 A.2d 405. The requested charge was:
Once the plaintiffs in this case have produced evidence of a negligent act or failure to act which increased the risk that plaintiffs’ child would be born prematurely and thereafter die of the complications of that premature birth, and that the premature birth and consequent death of the child in fact occurred, you will then consider whether such increased risk was a substantial factor in that result. If you so find, you will proceed to a calculation of damages.
The trial court denied the request, and instead gave the following instruction on causation:
The plaintiff has the burden of proving that the injuries for which he seeks to be compensated were proximately caused by the accident in question.
Now, I’ve used the term proximate cause. By proximate cause, we mean that the negligence of a particular party was a subsequent [sic] cause of the injury. That is, a cause which necessarily set the other causes in motion and was a substantial factor in bringing the injury complained of. It is a cause which naturally and probably led to, and might have been suspected to produce the injury complained of.
In addition, plaintiffs requested a jury instruction on damages based on Fosgate v. Corona, supra, 66 N.J. at 272-73, 330 A.2d 355. The requested charge stated that the defendant’s
The jury determined that defendant was negligent, but found that defendant’s negligence was not the proximate cause of the infant’s premature birth and death. The Appellate Division reversed, holding that the traditional proximate-cause charge was an inappropriate standard for determining causation, and that the “increased risk” charge authorized by Evers should have been given to the jury:
We hold that the flexible Evers standard applies to all medical malpractice cases in which there is evidence that defendant’s negligence increased the risk of the occurrence of the ultimate eventuating harm by failing to arrest plaintiff’s downward medical course. In such cases, it is a jury question whether the increased risk resulting from defendant’s negligence was a substantial factor in producing the ultimate harm. The rule applies even if plaintiff’s case includes evidence which would satisfy a higher standard. [225 N.J.Super. at 582, 543 A.2d 95.]
II.
To recover damages for the negligence of another, a plaintiff must prove that the negligence was a proximate cause of the injury sustained. See, e.g., People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 264, 495 A.2d 107 (1985). It is perhaps an understatement to acknowledge that causation “is an inscrutably vague notion, susceptible to endless philosophical argument, as well as practical manipulation.” Robinson, Multiple Causation in Tort Law: Reflections on the DES Cases, 68 Va.L.Rev. 713, 713 (1982). Although the concept resists definition, we have described proximate cause as a standard for limiting liability for the consequences of an act based “ ‘upon mixed considerations of logic, common sense, justice, policy and precedent.’ ” Caputzal v. The Lindsay Co., 48 N.J. 69, 77-78, 222 A.2d 513 (1966) (quoting Powers v. Standard Oil Co., 98 N.J.L. 730, 734, 119 A. 273 (Sup.Ct.1923), aff'd o.b., 98 N.J.L. 893, 121 A. 926 (E. & A. 1923)); accord D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts, § 41 at 264 (5th ed. 1984) (hereafter Prosser and Keeton on Torts).
Proximate cause is a factual issue, to be resolved by the jury after appropriate instruction by the trial court. In the routine case in which the plaintiff’s injury can be traced to a single cause, the standard instruction on proximate cause — and the one used by the trial court in this case — describes it as “a cause which necessarily set the other causes in motion and was a substantial factor in bringing the accident about * * and further as a “cause which naturally and probably led to and might have been expected to produce the accident complained of.” Model Jury Charges (Civil) § 7.11.
In Evers v. Dollinger, supra, 95 N.J. 399, 471 A.2d 405, we addressed causation in the context of allegations that a defendant’s negligence exacerbated a plaintiff’s preexistent illness. Defendant had failed to diagnose properly a lump in the plaintiff’s right breast, which a second physician determined to be a cancerous growth requiring an extended mastectomy. At trial the plaintiff’s expert testified that the malignant tumor increased in size during the seven months between the defendant’s misdiagnosis and the eventual surgery. The trial court rejected a proffer of evidence that patients with infiltrating ductal carcinoma, the plaintiff’s form of cancer, had a twenty-five-percent risk of recurrence after surgery, and that the seven-month delay in diagnosis and treatment increased the risk of recurrence. The trial court granted the defendant’s motion for judgment on the ground that there was no proof that the defendant’s deviation was a proximate cause of injury to the plaintiff. The Appellate Division affirmed. Pending determination of the plaintiff’s appeal in this Court, the plaintiff’s cancer was found to have metastasized in the form of cancer cells in the lung, and plaintiff’s illness was characterized as terminal. Id. at 403-04, 471 A.2d 405. Reversing, we held that it was error to enter judgment for the defendant in the face of proofs establishing that the plaintiff's tumor had increased in size because of the delay in diagnosis and treatment, and had developed beyond its original site. Id. at 406, 471 A.2d 405. Moreover, the plaintiff was prepared to prove that she
In view of the information presented to the Court that the plaintiffs cancer had recurred and metastasized, we addressed in Evers the standard by which causation should be charged to the jury on retrial. In that connection we discussed a series of medical malpractice cases decided in Pennsylvania that applied “a standard of causation that is more flexible than that used in conventional tort claims.” Id. at 413, 471 A.2d 405 (citing Jones v. Montefiore Hosp., 494 Pa. 410, 431 A.2d 920 (1981); Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978)). We noted that
[a] conspicuous feature of Hamil, and of the case before us, is that defendant was charged with having failed in a duty to protect against harm from another source; hence the fact-finder must consider not only what did occur but also what might have occurred:
Such cases by their very nature elude the degree of certainty one would prefer and upon which the law normally insists before a person may be held liable. Nevertheless, in order that an actor is not completely insulated because of uncertainties as to the consequences of his negligent conduct, Section 323(a) [of Restatement (Second) of Torts ] tacitly acknowledges this difficulty and permits the issue to go to the jury upon a less than normal threshold of proof.
[Id. 95 N.J. at 415, 471 A.2d 405 (quoting Hamil, supra, 481 Pa. at 271, 392 A.2d at 1287-88 (footnote omitted)).]
Adopting the reasoning of these Pennsylvania decisions, we determined in Evers that the principle set forth in Restatement (Second) of Torts § 323(a)
*104 plaintiff should be permitted to demonstrate, within a reasonable degree of medical probability, that the seven months delay resulting from defendant’s failure to have made an accurate diagnosis and to have rendered proper treatment increased the risk of recurrence or of distant spread of plaintiff’s cancer, and that such increased risk was a substantial factor in producing the condition from which plaintiff currently suffers. [Id. 95 N.J. at 417, 471 A.2d 405.]
The legal principle adopted by this Court in Evers reflects the emerging pattern of decisions on this issue in federal and state courts throughout the country. A clear majority of the courts that have considered proximate causation in the context of harm resulting from both a plaintiff’s preexistent condition and a defendant’s negligent discharge of a duty related to that condition have permitted the jury to consider whether defendant’s negligence increased the risk of harm and whether such increased risk was a substantial factor in producing the harm. See Keir v. United States, 853 F.2d 398, 415-17 (6th Cir.1988) (evidence that optometrist’s failure to diagnose retinoblastoma in plaintiff’s left eye precluded resort to more conservative therapy permitting continued use of eye required trial court to assess evidence on causation in context of increa sed-risk test of Evers v. Dollinger; applying New Jersey law); Daniels v. Hadley Memorial Hosp., 566 F.2d 749 (D.C.Cir.1977) (evidence that decedent sustained an anaphylactic reaction to penicillin injection and hospital personnel failed to administer immediate respiratory assistance and adrenalin held sufficient to raise jury issue whether negligence was substantial factor in causing death or depriving decedent of chance to survive); McBride v. United States, 462 F.2d 72, 75 (9th Cir.1972) (recovery not barred if negligent failure to provide treatment deprives patient of significant improvement in chances for recovery; applying Hawaii law); O’Brien v. Stover, 443 F.2d 1013, 1018 (8th Cir.1971) (evidence that defendant’s failure to diagnose decedent’s cancer considerably increased risk of death sufficient to
Some courts, however, adhere to a stricter formulation of proximate cause, requiring proof that the defendant’s failure properly to treat the preexistent condition was a probable cause of the resultant injury. See Gooding v. University Hosp. Bldg., Inc., 445 So.2d 1015, 1018-20 (Fla.1984); Walden v. Jones, 439 S.W.2d 571, 576 (Ky.1968); Cornfeldt v. Tongen, 295 N.W.2d 638, 640 (Minn.1980); Clayton v. Thompson, 475 So.2d 439, 445 (Miss.1985); Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio St.2d 242, 272 N.E.2d 97, 104 (1971). This more restrictive standard for proving proximate cause reflects the view that
[Relaxing the causation requirement might correct a perceived unfairness to some plaintiffs who could prove the possibility that the medical malpractice*108 caused an injury but could not prove the probability of causation, but at the same time could create an injustice. Health care providers could find themselves defending cases simply because a patient fails to improve or where serious disease processes are not arrested because another course of action could possibly bring a better result. No other professional malpractice defendant carries this burden of liability without the requirement that plaintiffs prove the alleged negligence probably rather than possibly caused the injury. [Gooding v. University Hosp. Bldg., Inc., supra, 445 So.2d at 1019-20 (citation omitted).]
The minority view has been criticized for putting “a premium on each party’s search for the willing witness,” Thompson v. Sun City Community Hosp., supra, 141 Ariz. at 607, 688 P.2d at 615, and for rendering health care providers “free of liability for even the grossest malpractice if the patient had only a fifty-fifty chance of surviving the disease or injury even with proper treatment.” Roberson v. Counselman, supra, 235 Kan. at 1021, 686 P.2d at 160. As the Supreme Court of Oklahoma observed:
We think in those situations where a health care provider deprives a patient of a significant chance for recovery by negligently failing to provide medical treat ment, the health care professional should not be allowed to come in after the fact and allege that the result was inevitable inasmuch as that person put the patient’s chance beyond the possibility of realization. Health care providers should not be given the benefit of the uncertainty created by their own negligent conduct. To hold otherwise would in effect allow care providers to evade liability for their negligent actions or inactions in situations in which patients would not necessarily have survived or recovered, but still would have a significant chance of survival or recovery. [McKellips v. Saint Francis Hosp., Inc., supra, 741 P.2d at 474.]
We adhere to our holding in Evers. Evidence demonstrating within a reasonable degree of medical probability that negligent treatment increased the risk of harm posed by a preexistent condition raises a jury question whether the increased risk was a substantial factor in producing the ultimate result. Evers v. Dollinger, supra, 95 N.J. at 417, 471 A.2d 405. The rationale underlying the use of a two-pronged jury instruction bears elaboration. Because this modified standard of proximate causation is limited to that class of cases in which a defendant’s negligence combines with a preexistent condition to cause harm — as distinguished from cases in which the deviation alone
We are also fully in accord with the Appellate Division’s conclusion that the jury should have been instructed in accordance with Evers, even though plaintiffs’ proofs may have satisfied traditional standards of proximate causation. 225 N.J.Super. at 582, 543 A.2d 95.
III.
The trial court’s rejection of plaintiffs’ requested jury instruction on damages, supra at 101-103, 574 A.2d at 401-402, affirmed by the Appellate Division, 225 N.J.Super. at 584, 543 A.2d 95, implicates the measure of damages on remand. Although defendant’s petition for certification does not raise the issue, the question of allowable damages in Evers-type cases was addressed in the amicus brief submitted by the New Jersey Medical Malpractice Reinsurance Association. We con
We noted in Ostrowski v. Azzara, 111 N.J. 429, 439, 545 A.2d 148 (1988), the general principle that “a defendant whose acts aggravate a plaintiff's preexisting condition is liable only for the amount of harm actually caused by the negligence.” (citing 2 F. Harper & F. James, Law of Torts § 20.3 at 1128 (1956); Prosser and Keeton on Torts, supra, § 52 at 349. In Fosgate v. Corona, supra, 66 N.J. 268, 330 A.2d 355, we recognized that principle in the context of a claim of medical malpractice involving treatment of a preexistent disease. We held in Fosgate that
where the malpractice or other tortious act aggravates a preexisting disease or condition, the innocent plaintiff should not be required to establish what expenses, pain, suffering, disability or impairment are attributable solely to the malpractice or tortious act, but that the burden of proof should be shifted to the culpable defendant who should be held responsible for all damages unless he can demonstrate that the damages for which he is responsible are capable of some reasonable apportionment and what those damages are. [Id. at 272-73, 330 A.2d 355.]
Rejecting plaintiffs’ request for a Fosgate charge on the issue of damages, the trial court determined that plaintiff Jamie Scafidi’s premature labor was not a preexistent condition because it “occurred immediately before a phone call to Dr. Seiler whereby the plaintiff was seeking some relief * * The Appellate Division recognized Ms. Scafidi’s labor as a preexistent condition, but concluded that defendant’s failure to intervene effectively did not “exacerbate” the condition, rendering Fosgate inapplicable. 225 N.J.Super. at 584, 543 A.2d 95. We disagree with the reasoning advanced both by the Law Division and the Appellate Division for rejecting the Fosgate charge. As noted, however, supra at 102, 574 A.2d at 402, the rejection of the Fosgate charge did not prejudice plaintiffs. Unlike the trial court in Fosgate, the trial court here did not instruct the jury that defendant had no liability for damages attributable to Ms. Scafidi’s preexistent condition. In effect, the charge on damages did not acknowledge that plaintiffs’
The critical issue that should have determined the applicability of the Fosgate charge is whether defendant’s liability for damages is capable of any apportionment. Stated differently, the question is whether plaintiffs’ damage claim should, be limited to the value of the lost chance for recovery, in recognition of the evidence that the infant’s premature birth and death might have occurred even if defendant’s treatment was non-negligent.
In Evers we acknowledged the analysis offered by Professor King, the pre-eminent commentator on the question, proposing that in Evers-type cases a plaintiff’s recovery be limited to the value of the lost chance of avoiding harm. Evers, 95 N.J. at 412 n. 7, 471 A.2d 405. Professor King’s thesis is that in such cases
[t]he defendant should be subject to liability only to the extent that he tortiously contributed to the harm by allowing a preexisting condition to progress or by aggravating or accelerating its harmful effects, or to the extent that he otherwise caused harm in excess of that attributable solely to preexisting conditions. The effect of preexisting conditions should depend on the extent to which such conditions affect the present and future value of the interest lost. [King, Causation Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1360 (1981) (hereafter King, Causation and Valuation) (footnote omitted).]
The following example is offered to illustrate application of “lost chance” damages:
[C]onsider a patient who suffers a heart attack and dies as a result. Assume that the defendant-physician negligently misdiagnosed the patient’s condition, but that the patient would have had only a 40% chance of survival even with a timely diagnosis and proper care. Regardless of whether it could be said that the defendant caused the decedent’s death, he caused the loss of a chance, and that chance-interest should be completely redressed in its own right. Under the proposed rule, the plaintiff’s compensation for the loss of the victim’s chance of surviving the heart attack would be 40% of the compensable value of the victim’s life had he survived (including what his earning capacity would other*112 wise have been in the years following death). The value placed on the patient's life would reflect such factors as his age, health, and earning potential, including the fact that he had suffered the heart attack and the assumption that he had survived it. The 40% computation would be applied to that base figure. [Id. at 1382 (footnote omitted).]
In a number of cases courts have adopted or acknowledged the soundness of the concept that a plaintiff’s recovery in Evers-type cases should ordinarily be limited to lost-chance damages. Mays v. United States, supra, 608 F.Supp. at 1482-83; James v. United States, supra, 483 F.Supp. at 587; DeBurkarte v. Louvar, supra, 393 N.W.2d at 137; McKellips v. Saint Francis Hosp., Inc., supra, 741 P.2d at 475-77; Herskovits v. Group Health Cooperative of Puget Sound, supra, 99 Wash.2d. at 632-635, 664 P.2d at 486-87 (Pearson, J., concurring). The principle is also supported by other commentators. Andel, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival, 12 Pepperdine L. Rev. 973, 998 (1985); Note, Increased Risk of Harm: A New Standard for Sufficiency of Evidence of Causation in Medical Malpractice Cases, 65 B.U.L.Rev. 275, 303-06 (1985); Note, Herskovits v. Group Health Cooperative: Negligent Creation of a Substantial Risk of Injury is a Compensable Harm, 9 U. Puget Sound L.Rev. 251 (1985); Note, Recovery for Loss of Chance in a Wrongful Death Action, 59 Wash.L.Rev. 981, 991-92 (1984).
In our view, a rule that limits a plaintiff’s damages in Evers-type cases to the value of the lost chance of recovery is an essential complement to Evers’ modification of the proof required to establish proximate causation. It should be a self-evident principle of tort law that valuation of allowable damages “is animated by a premise similar to that underlying causation: that a tortfeasor should be charged only with the value of the interest he destroyed.” King, Causation and Valuation, supra, 90 Yale L.J. at 1356. To the extent that a plaintiff’s ultimate harm may have occurred solely by virtue of a preexistent condition, without regard to a tortfeasor’s intervening negligence, the defendant’s liability for damages should
Our holding is also consistent with the principles underlying the comparative-negligence statute, N.J.S.A. 2A:15-5.1 (damages sustained shall be diminished by percentage of negligence attributable to person recovering), and the joint-tortfeasor-contribution statute, N.J.S.A. 2A:53A-3 (permitting tortfeasor paying judgment in excess of prorata share to recover contribution from other tortfeasors). It imposes no novel burden on jurors, who are routinely instructed in tort cases to apportion fault in order to permit the trial court to mold the verdict. See N.J.S.A. 2A:15 — 5.2; Model Jury Charges (Civil) § 8.30. Thus we foresee no practical impediment to a rule that requires juries in Evers-type cases to determine from the evidence adduced the likelihood that a plaintiff’s ultimate harm would have occurred irrespective of the defendant’s negligence.
IV.
To recapitulate, the judgment of the Appellate Division is modified and affirmed. On retrial the trial court will instruct the jury on causation in the manner prescribed by Evers v. Dollinger, supra, 95 N.J. at 417, 471 A.2d 405. Consistent with Fosgate v. Corona, supra, 66 N.J. at 272-73, 330 A.2d 355, to the extent that defendant seeks to apportion damages, defendant must produce evidence tending to show that the infant’s premature birth and death could have been attributable solely
In view of the significant change in the law represented by our holding concerning the measure of damages, the effect and application of that holding, except with respect to this case and Olah v. Slobodian, 119 N.J. 119, 574 A.2d 411 (1990), also decided today, shall be prospective only. See Weinberg v. Dinger, 106 N.J. 469, 496, 524 A.2d 366 (1987).
Restatement (Second) of Torts § 323(a) provides in pertinent part:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
*104 (a) his failure to exercise such care increased the risk of such harm