(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 interests of brevity, portions of any opinion may not have been summarized).
BARBARA ANDERSON V. DR. JOSEPH PICCIOTTI, ET AL. (A-72-95)
Argued January 17, 1996 -- Decided May 23, 1996
COLEMAN, J., writing for a unanimous Court.
In September of 1987, Barbara Anderson, an insulin-dependent diabetic, was referred by her
orthopedist to Dr. Urbas, a podiatrist, for toenail care. While clipping her toenails, Dr. Urbas cut
Anderson's right big toe, causing some bleeding. Over the following week, Anderson's toe became red and
swollen. Unable to schedule another appointment with Dr. Urbas, Anderson visited her internist, Dr.
Lurakis, who diagnosed cellulitis of the toe and prescribed an oral antibiotic and warm soaks for the toe.
On October 7, 1987, Dr. Lurakis admitted Anderson to Kessler Memorial Hospital for an unrelated
illness. While in the hospital, Dr. Lurakis again examined Anderson's toe, which continued to be red and
swollen. Dr. Picciotti, a podiatrist, was consulted. On October 8, 1987, Dr. Picciotti removed the toe nail
and took a culture, which revealed the presence of a bacteria commonly found in foot infections and a
common cause of osteomyelitis, an infection of the bone. Because he was concerned that Anderson may
have osteomyelitis, Dr. Picciotti ordered a radiologic bone scan. Based on the radiologist's report that the
bone scan indicated inflammation consistent with osteomyelitis, Dr. Picciotti, on October 14, 1987, advised
Anderson that she had osteomyelitis of the right big toe. By that time, Anderson had been taking the oral
antibiotics prescribed by Dr. Lurakis for four weeks. A second bone scan taken on October 20, 1987,
revealed a slightly less certain, but nonetheless likely, indication of bone infection. On October 23, 1987, Dr.
Picciotti amputated Anderson's right big toe. Dr. Picciotti had not obtained a bone biopsy before the
amputation.
Anderson's medical malpractice action against Dr. Picciotti was tried on three theories of liability:
1) Dr. Picciotti deviated from accepted standards of care when he amputated Anderson's great toe without
first obtaining a bone biopsy to make a definitive diagnosis of osteomyelitis; 2) Dr. Picciotti deviated from
the proper standard of care because he failed to administer intravenous (IV) treatment for a non-osteomyelitic inflammatory process before amputating the toe; and 3) Dr. Picciotti performed the amputation
without obtaining Anderson's informed consent. Dr. Picciotti defended, claiming that Anderson had
osteomyelitis and that he did not deviate from the proper standard of care.
During a jury charge conference, defense counsel for Dr. Picciotti requested that the jury be charged
in accordance with the enhanced risk standard of causation defined in Scafidi v. Seiler (Scafidi). In support
of that charge, counsel argued that osteomyelitis was properly diagnosed pre- and post-operatively; that
amputation was a proper treatment option for osteomyelitis; that because Anderson had osteomyelitis, IV
treatment would not have guaranteed a cure; and that there was a risk that the toe would have been
amputated anyway. The trial court declined to give a Scafidi charge, concluding that this was not a Scafidi
increased risk type case. Accordingly, the jury was given the standard "but for" proximate cause instruction.
At the conclusion of trial, the jury found that Dr. Picciotti deviated from accepted standards of
medical practice by performing the amputation on Anderson's great right toe; that the deviation proximately
caused her injury; and that amputation was performed with Anderson's informed consent.
Dr. Picciotti appealed to the Appellate Division, arguing that because it was possible that Anderson would have had an amputation anyway, it was improper not to charge the jury on increased risk or last chance of recovery pursuant to Scafidi. The Appellate Division reversed, finding that the evidence was insufficient to support the verdict in terms of causation. The panel reasoned that if Anderson had osteomyelitis, regardless of whether a bone biopsy was performed, amputation was conceded by all experts to be an accepted treatment option. Thus, amputation would have been unnecessary only if Anderson did not have osteomyelitis of the right big toe. Nonetheless, the Appellate Division did not dismiss Anderson's
complaint. The court found that the evidence was sufficient for the jury to have concluded that Anderson
did not have osteomyelitis and, that IV treatment would probably have cured the inflammation in her toe.
The court also found that even if there was osteomyelitis that could not have been cured by IV treatment,
such treatment would have offered a significant chance of cure. Viewed in that context, the court found
Scafidi applicable.
The Supreme Court granted certification.
HELD: When a defendant requests a Scafidi-type causation instruction in a case in which an alleged pre-existing condition and the effect of the defendant's tortious conduct both harmed the plaintiff within
a relatively short period of time, the defendant has the burden of proving the extent to which the
pre-existing condition reduced the value of the plaintiff's resultant harm. A Scafidi charge was not
warranted here.
1. Under Scafidi, a careful analysis of the evidence is required to determine whether the evidence is
sufficient to permit a jury to decide, as a matter of reasonable medical probability, that both prongs of a two-part test are satisfied. First, the evidence must permit a jury to find that defendant was negligent and that
defendant's negligence increased plaintiff's risk of harm from an established pre-existing condition. If that
prong is satisfied, then there are concurrent causes of the harm to the plaintiff. In that instance, the "but for"
causation standard may not be charged to a jury. The second prong of the test requires a jury to apply the
"substantial factor" standard of causation that directs a jury to determine whether the deviation in the context
of the pre-existing condition was sufficiently significant in relation to the eventual harm to satisfy the
requirement of proximate cause. In a Scafidi-type case, as with comparative negligence cases, the wrongdoer
should be charged only with the value of the interest he or she has destroyed. (pp. 10-14)
2. There is neither an allegation nor any evidence that Dr. Picciotti's alleged negligence combined with a
pre-existing condition to cause Anderson's harm. Thus, the Appellate Division properly determined that the
evidence was insufficient to require a Scafidi charge or to permit apportionment under Fosgate. (pp. 14-16)
3. When it does not clearly appear that a Scafidi charge is required and a plaintiff resists such a charge, then
a defendant has the burden of persuading the trial court that a Scafidi charge is appropriate. If a defendant
seeks to reduce his liability by asserting that part of the harm is not attributable to his or her tortious
conduct, the burden of proving both that the plaintiff's injury is capable of apportionment and what that
apportionment should be should rest on the defendant; the defendant must establish the existence and
identity of a pre-existing condition or disease. The burden of proof required to satisfy a Scafidi causation
charge requires evidence that demonstrates, within a reasonable degree of medical probability, that the
defendant's delay in making a proper diagnosis and rendering proper treatment increased the risk of
worsening the condition or disease, and that the delay was a substantial factor in producing the plaintiff's
current condition. Here, Dr. Picciotti did not adequately demonstrate that he was entitled to either a Scafidi
or a Fosgate charge. (pp. 16-21)
4. In overturning the jury verdict, the Appellate Division read too narrowly Anderson's contention that Dr.
Picciotti should have ordered a bone biopsy, interpreting the failure to obtain a pre-operative biopsy as
negligence based on an act of omission. Anderson never contended that the failure to obtain a biopsy was a
proximate cause of the amputation. Rather, she has consistently maintained that it was the absence of
osteomyelitis that made the amputation unnecessary, not simply the failure to obtain the bone biopsy.
Viewed in that context, Anderson proffered sufficient evidence from which the jury could have concluded
that osteomyelitis did not exist, notwithstanding substantial evidence to the contrary. Finally, the record fails
to disclose sufficient evidence to support the Appellate Division's conclusion that failure to administer IV
therapy constituted negligence; Dr. Picciotti and the experts stated that IV therapy would have made no
difference here. (pp. 21-23)
Judgment of the Appellate Division is REVERSED and the jury verdict REINSTATED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
STEIN join in JUSTICE COLEMAN's opinion.
SUPREME COURT OF NEW JERSEY
A-
72 September Term 1995
BARBARA ANDERSON,
Plaintiff-Appellant,
v.
DR. JOSEPH PICCIOTTI,
Defendant-Respondent,
and
ASSOCIATED PODIATRISTS, j/s/a
Defendant.
Argued January 17, 1996 -- Decided May 23, 1996
On certification to the Superior Court,
Appellate Division.
Alan M. Lands argued the cause for appellant.
Robert E. Paarz argued the cause for
respondent (Paarz, Master & Koernig
attorneys; Mary Ann C. O'Brien, on the
brief).
The opinion of the Court was delivered by
COLEMAN, J.
The critical issue raised in this medical malpractice case
involving the amputation of a toe is whether the jury should have
been instructed in accordance with the enhanced risk standard of
causation explicated in Scafidi v. Seiler,
119 N.J. 93 (1990).
After the trial court denied defendant's request for an enhanced
risk instruction, the jury found that defendant committed
malpractice that proximately caused plaintiff to sustain $70,000
in damages. The Appellate Division reversed, finding, among
other reasons, that an enhanced risk instruction should have been
given.
We granted certification,
142 N.J. 455 (1995), and reverse.
We hold: (1) this is not a Scafidi-type case; and (2) when a
defendant requests a Scafidi-type causation instruction in a case
in which an alleged preexistent condition and the effect of the
defendant's tortious conduct both harm the plaintiff within a
relatively short time, the defendant has the burden of proving
the extent to which the preexisting condition reduced the value
of the plaintiff's resultant harm.
I
Plaintiff, Barbara Anderson, has been an insulin-dependent diabetic since 1981 and suffers from heart problems, rheumatoid arthritis, which is in remission, and osteoarthritis, which causes pain in her back, neck, knees, feet, and hands. On September 10, 1987, plaintiff consulted with Dr. Marcelli, an orthopedist, for foot pain. During the examination the doctor observed that plaintiff's toenails were curved inward. He referred her to Dr. Urbas, a podiatrist, for nail care. While clipping her toenails, Dr. Urbas cut plaintiff's big toe, causing some bleeding. Over the following week, the toe remained red and swollen, and plaintiff, unable to obtain another appointment with Dr. Urbas, visited Dr. Lurakis, an internist who had cared for
her since early 1986. Dr. Lurakis diagnosed cellulitis of the
toe and prescribed an oral antibiotic and warm soaks for the toe.
On September 22, 1987, plaintiff visited Dr. Lurakis again,
complaining of chest pains related to her heart condition.
Because the chest pains persisted, Dr. Lurakis admitted plaintiff
to the Kessler Memorial Hospital on October 7, 1987.
While plaintiff was in the hospital, Dr. Lurakis again
examined her toe, which continued to be red and swollen. He
requested defendant, Dr. Picciotti, a podiatrist, to look at the
toe. On October 8, Dr. Picciotti examined plaintiff and noted an
infected callus and an abscess with pustular drainage. He
removed the nail, and took a culture of the drainage. That
culture revealed the presence of staphylococcusaureus, which is a
bacteria commonly found in infections of the foot and a common
cause of osteomyelitis.
Concerned that plaintiff may have had osteomyelitis, Dr.
Picciotti, on October 8, ordered a radiologic bone scan, often
used in detecting infections in the bone. The radiologist
reported that the bone scan indicated inflammation consistent
with osteomyelitis. On October 14, Dr. Picciotti advised
plaintiff that his diagnosis was osteomyelitis, and discussed
treatment alternatives and her prognosis. By then, plaintiff had
been taking oral antibiotics prescribed by Dr. Lurakis for four
weeks.
Plaintiff was discharged from the hospital on October 14
with instructions to report to Dr. Picciotti's office the next
day. She did so, and Dr. Picciotti observed that the toe was red
and swollen, and continued to believe that the proper diagnosis
was osteomyelitis. Dr. Picciotti ordered a second bone scan. A
report, dated October 20, interpreted that scan as showing a
slightly less certain, but nonetheless likely, indication of bone
infection.
Plaintiff was readmitted to Kessler Memorial Hospital on
October 22 by defendant. Dr. Lurakis made a notation in the
hospital records that the first "bone scan showed that she had a
chronic, smoldering osteomyelitis of the distal aspect of the
great toe," and the second bone scan "revealed continuing
osteomyelitis." That same day, plaintiff discussed her treatment
plan with Dr. Picciotti and an intern. Plaintiff's right great
toe was amputated on October 23 by Dr. Picciotti without
obtaining a bone biopsy.
The trial was in large part a battle of the experts with
respect to whether Dr. Picciotti deviated from the accepted
standard in amputating plaintiff's toe. Plaintiff's expert, Dr.
Joseph, a podiatrist, testified:
[F]rom what I saw in the record: the
improving toe, no deep tracks, no x-ray
changes after six weeks of there being soft
tissue infection . . . [there] was no
clinical finding consistent with
osteomyelitis. So that it appears that the
. . . second positive bone scan was an
osteo[myelitis] or not. And if that's the
case, I feel that's the deviation of standard
of care just using a bone scan in the absence
of other impressive clinical signs and
symptoms.
On cross-examination, Dr. Joseph asserted that the mere fact that
plaintiff was diabetic, and thus predisposed to suffer from
osteomyelitis, should not have affected Dr. Picciotti's decision
to amputate. According to Dr. Joseph, gangrene or other evidence
of vascular insufficiency myelitis, conditions associated with
diabetes that may require amputation, had not been noted in
plaintiff's medical records.
Dr. Joseph further testified on cross-examination that,
although he did not believe that plaintiff suffered from
osteomyelitis at the time of the amputation, he could not
conclusively state, based on his examination of the medical
records, that plaintiff either had or did not have osteomyelitis.
Furthermore, Dr. Joseph admitted that the radiologist's
conclusion that the bone scan indicates "an inflammatory process
which most likely may represent an osteomyelitis" would be taken
into account by a podiatrist in deciding whether to amputate.
On redirect, however, Dr. Joseph stated that he "was not
sold" that plaintiff had osteomyelitis and that amputation is "a
terminal option . . . a last option." Dr. Joseph also stated
that plaintiff's condition had been improving while she was on
oral antibiotics. Dr. Joseph did not testify that intravenous
antibiotic (IV) treatment is a probable cure.
Defendant's expert, Dr. Mandracchia, a podiatrist, testified
that Dr. Picciotti had an adequate basis for diagnosing
plaintiff's condition as osteomyelitis. He also testified that
curing osteomyelitis with IV treatment was possible, but
generally improbable. Dr. Mandracchia was unable to determine
whether Dr. Picciotti's diagnosis that plaintiff suffered from
osteomyelitis was correct. Thus neither plaintiff's nor
defendant's expert could state conclusively whether plaintiff had
osteomyelitis.
The case was tried on three theories of liability. First,
plaintiff alleged that Dr. Picciotti deviated from the accepted
standard of care when he amputated her great toe without first
obtaining a bone biopsy to make a definitive diagnosis of
osteomyelitis. Thus, plaintiff contended that although she had
an inflammatory process in her great toe, a bone biopsy would
have prevented defendant from misdiagnosing the condition as
osteomyelitis. Second, plaintiff alleged that defendant deviated
from the proper standard of care because he failed to administer
IV treatment for a non-osteomyelitic inflammatory process before
amputating the toe. Third, plaintiff alleged that defendant
performed the amputation without obtaining plaintiff's informed
consent. The defense to all three theories was that plaintiff
had osteomyelitis and defendant did not deviate from the proper
standard of care.
During a jury charge conference, defense counsel requested a
Scafidi charge. Defendant argued that he had not deviated from
the standard of care because osteomyelitis was properly diagnosed
pre- and post-operatively and amputation was a proper treatment
option for osteomyelitis. He asserted that because plaintiff had
osteomyelitis, IV treatment would not have guaranteed a cure;
therefore, there was a risk that the toe would have been
amputated "in any event." In denying the request for a Scafidi
charge, the trial court reasoned:
I kept getting a feeling I was trying to
force a square peg into a round hole by
trying to make this case fit into that
increased risk, loss of chance line of cases.
I don't think that this is the type of case
that the courts were looking at when they
rendered their decisions in these cases.
This isn't really a lost chance case, the
testimony and the allegations by the
plaintiff really don't go to any allegations
of increased risk based on what the defendant
did or did not do, there is really no
testimony of record from which a jury could
allocate any risk, could they have found
risk, it's just not there. I don't think
that there is an argument that the
defendant's negligence combined with the pre-existing condition to cause the injury, I
think as [defense counsel] said himself this
morning what we are talking about here is the
decision to amputate.
Accordingly, the jury was given the standard "but for" proximate cause instruction. Polyard v. Terry, 160 N.J. Super. 497, 511 (App. Div. 1978), aff'd, 79 N.J. 547 (1979). A special verdict sheet was submitted to the jury that combined the first two theories of liability in which the jury was asked whether "Dr. Joseph Picciotti [deviated] from accepted standards of medical practice by performing an amputation on plaintiff's great right toe?" The jury answered, "yes." The jury also found that the deviation proximately caused plaintiff's injury, presumably, amputation of the toe. The jury found, however, that the
amputation was performed with plaintiff's informed consent.
Defendant appealed.
In his brief filed with the Appellate Division, defendant
stated that "[p]laintiff's theory at trial was that if Dr.
Picciotti suspected osteomyelitis, he was required by the
standard of care to obtain a bone biopsy to conclusively diagnose
its existence before he amputated the toe." Defendant then
argued that a Scafidi charge should have been given to the jury
because
there was a certain risk that the patient
would have had an amputation of the toe (or
the entire foot) in any event. The risk
which the patient had when she entered
Kessler Memorial Hospital on October 7, 1986,
was that she would have had an amputated limb
. . . . Since it is possible that this
patient would have had an amputation anyway,
it was improper to fail to charge the jury on
increased risk or last chance of recovery
pursuant to the Scafidi standard.
In her brief filed with the Appellate Division, plaintiff
argued that apart from her lack of informed consent theory of
liability, defendant misdiagnosed an inflammatory process in her
great toe as osteomyelitis by neglecting to obtain a bone biopsy
before amputating the toe. Plaintiff conceded that if
osteomyelitis was the proper diagnosis, she could not prevail
under either of the first two theories advanced at trial because
both plaintiff's and defendant's experts agreed that amputation
was a proper treatment option for osteomyelitis.
Plaintiff further asserted that during the trial she did not
advocate "that the failure to give intravenous antibiotics or the
delay in diagnosing osteomyelitis [with a bone biopsy] and
treating same caused the infection to spread" or otherwise
worsen. Consequently, plaintiff argued, a Scafidi charge was
unwarranted because there was neither an allegation nor evidence
that defendant's alleged deviations combined with the alleged
osteomyelitis to cause a worsening of plaintiff's condition.
In an unpublished opinion, the Appellate Division reversed,
finding that the evidence was insufficient to support the verdict
in terms of causation. Justifying the Appellate Division's
conclusion was the underlying rationale that if plaintiff had
osteomyelitis, irrespective of whether a confirmatory bone biopsy
was performed, amputation was conceded by all experts to be an
accepted treatment option. The court found that the
"[a]mputation would have been unnecessary only if [plaintiff did
not have osteomyelitis] of the big toe of her right foot."
Although the court reversed the judgment for plaintiff, it
did not dismiss plaintiff's complaint. The court based its
decision not to dismiss the complaint on its finding that the
evidence was sufficient for the jury to have concluded that
plaintiff did not have osteomyelitis and, therefore, IV treatment
"would probably have . . . cured" the inflammatory process in her
toe. The court also found that even if there was osteomyelitis
that could not have been cured with the IV treatment, that
treatment "would have offered a significant chance of cure."
Viewed in that context, the court concluded that the case is
controlled by Scafidi.
The court summarized its reasons for applying Scafidi by
stating:
. . . the evidence was sufficient to permit
the jury to find that Dr. Picciotti's failure
to administer intravenous antibiotics was
actionable malpractice, whether or not Ms.
Anderson had osteomyelitis. If she did not
have osteomyelitis, the omission was
malpractice by the conventional definition of
proximate cause because, on that premise,
antibiotics would probably have cured the
infection and have saved her toe. If she did
have osteomyelitis, then evidence that Dr.
Picciotti's failure to administer intravenous
antibiotic therapy caused her to lose a
significant chance of achieving a cure
without amputation . . . . Lanzet v.
Greenberg,
126 N.J. 168, 188 (1991); Scafidi,
supra, 119 N.J. at 101; Evers v. Dollinger,
95 N.J. 399, 417 (1984); Roses v. Feldman,
257 N.J. Super. 214, 218 (App. Div. 1992);
Battenfeld v. Gregory,
247 N.J. Super. 538,
546 (App. Div. 1991).
Plaintiff contends that this case does not warrant a Scafidi
charge because defendant's negligence did not combine with a
preexisting condition to create the ultimate harm. Rather,
defendant's negligence was the sole cause of the ultimate harm.
Plaintiff characterizes the ultimate harm as the amputation
itself. Plaintiff points out that the trial focused on the
misdiagnosis of osteomyelitis; no evidence admitted showed that
defendant's negligence combined with skin or bone infection to
cause the condition to worsen.
Plaintiff argues that a Scafidi charge is appropriate only
when treatment or a lack of it increases the risk of harm.
Accordingly, the harm must flow from a combination of the
preexisting condition and the defendant's negligence, not solely
from a defendant's negligence. Here, plaintiff asserts that the
amputation was caused solely by defendant's misdiagnosis of
osteomyelitis and not from a combination of a preexisting
condition and defendant's negligence.
Determining whether a Scafidi-type charge is required focuses on the appropriateness of the standard "but for" proximate cause jury instruction. In Evers v. Dollinger, 95 N.J. 399 (1984), this Court addressed the issue of 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 preexisting condition. Id. at 412-17. In that case, the defendant failed to properly diagnose a lump in the plaintiff's right breast. Id. at 402-03. Seven months later a second physician determined the lump to be cancerous, requiring a radical mastectomy. Id. at 403. The plaintiff's expert testified that the lump increased in size during that seven-month period. Id. at 404-05. The expert also stated that plaintiff's type of cancer had a 25" chance of recurrence after surgery and that the seven-month delay increased that risk. Ibid. The
cancer metastasized to the lungs before the appeal was concluded.
Id. at 403-04.
The Court in Evers adopted Pennsylvania's modified standard
of proximate causation in medical malpractice cases, holding:
[P]laintiff 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. at 417.]
In Scafidi, supra, 119 N.J. at 108, the Court adhered to the
holding in Evers and clarified its meaning. The rule of law was
summarized in the following manner:
Evidence demonstrating with 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, supra, 95 N.J. at 417. 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 is the cause of harm -- the jury is first asked to verify, as a matter of reasonable medical probability, that the deviation is within the class, i.e., that it increased the risk of harm from the preexistent condition. Accord Hamil v. Bashline, 392 A.2d 1280, 1286-88 (Pa. 1978);
Daniels v. Hadley Mem. Hosp.,
566 F.2d 749,
757-58 (D.C. Cir. 1977); Roberson v.
Counselman,
686 P.2d 149, 159 (Kan. 1984);
Restatement (Second) of Torts § 323(a).
Assuming that the jury determines that the
deviation increased the risk of harm from the
preexistent condition, we use the
"substantial factor" test of causation
because of the inapplicability of "but for"
causation to cases where the harm is produced
by concurrent causes. See W. Page Keeton et
al., Prosser and Keeton on the Law of Torts,
§ 41, at 266-68 (5th ed. 1984); Wex S.
Malone, Ruminations on Cause-In-Fact,
9 Stan.
L. Rev. 60, 88-90 (1956). The "substantial
factor" standard requires the jury to
determine whether the deviation, in the
context of the preexistent condition, was
sufficiently significant in relation to the
eventual harm to satisfy the requirement of
proximate cause. Accord Brown v. United
States Stove Co.,
98 N.J. 155, 172 (1984);
Hamil, supra, 392 A.
2d at 1288-89.
[Id. at 108-09.]
Thus, under Scafidi, a careful analysis of the evidence is required to determine whether the evidence is sufficient to permit a jury to decide, as a matter of reasonable medical probability, that both prongs of a two-part test are satisfied. First, the evidence must permit a jury to find that defendant was negligent and that defendant's negligence increased plaintiff's risk of harm from an established preexistent condition. If that prong is satisfied, then there are concurrent causes of the harm to the plaintiff. When concurrent causes produce the harm, the "but for causation" standard may not be charged to a jury. Id. at 109. Therefore the second prong of the test requires a jury to apply the "substantial factor" standard of causation. Ibid. The "substantial factor" standard directs a jury to determine
whether the deviation in the context of the preexistent condition
"was sufficiently significant in relation to the eventual harm to
satisfy the requirement of proximate cause." Ibid.
The evidence and legal principles that drive the
determination of causation with respect to damages in Scafidi-type cases, are quite similar to those involved in our
comparative negligence law, N.J.S.A. 2A:15-5.1. Scafidi, supra,
119 N.J. at 113. In a Scafidi-type case, as with comparative
negligence, "`a tortfeasor should be charged only with the value
of the interest he [or she] destroyed.'" Scafidi, supra, 119
N.J. at 112 (quoting Joseph H. King, Jr., Causation, Valuation,
and Chance in Personal Injury Torts Involving Preexisting
Conditions and Future Consequences, 90 Yale L.J. 1353, 1356
(1981)).
Unlike the complicated claims in Evers, in which the
defendant's failure to diagnose cancer permitted the cancer to
spread and enhanced the chances of post-operative recurrence, and
Scafidi, in which the mother of a premature child claimed that
the defendant's failure to diagnose and treat the mother's early
labor caused the premature birth and death of her infant,
plaintiff's allegations in the present case are not complex.
There is no question here whether the amputation itself was
performed in a technically proficient manner. Rather, this case
comes down to the simple question of whether defendant
misdiagnosed the inflammatory process in plaintiff's right great
toe as osteomyelitis. If there was no osteomyelitis, plaintiff
contends that amputation was an inappropriate treatment option.
If the diagnosis was accurate, plaintiff agrees with defendant
that the amputation was proper. The case became complicated only
when defendant, as the trial court observed, tried "to force a
square peg into a round hole by trying to make this case fit into
the increased risk . . . line of cases."
There was neither an allegation nor any evidence that
defendant's alleged negligence combined with a preexistent
condition to cause plaintiff harm. Throughout the trial,
plaintiff's counsel adhered to the thesis espoused in his opening
statement that "this case is about a doctor amputating a part of
someone's body for no sound medical reason . . . . There's no
gangrene. There's no skin infection. There's no bone
infection." In other words, plaintiff alleges that defendant
misdiagnosed osteomyelitis and but for that misdiagnosis, the toe
would not have been amputated. She alleges that it was
defendant's misdiagnosis alone during the fourteen days between
October 8 and 23, 1987, that caused the amputation. Plaintiff
contends that notwithstanding that misdiagnosis, her condition
continued to improve up until the time of the surgery instead of
worsening as a result of the misdiagnosis or otherwise.
Defendant, on the other hand, has consistently maintained that
the pre- and post-operative diagnoses of osteomyelitis were
accurate.
Furthermore, plaintiff had nothing to gain by resisting a
Scafidi charge. First, the standard "but for all-or-nothing"
causation charge that was given is more stringent than the
Scafidi "substantial factor" charge. Olah v. Slobodian,
119 N.J. 119, 129 (1990). Second, plaintiff did not and, indeed, could
not prevent defendant from establishing that plaintiff's damages
were induced by concurrent causes, one of which was a preexistent
condition unrelated to defendant's negligence. Restatement
(Second) of Torts § 433A(1). If concurrent causes could be
established, defendant would have been entitled to the benefit of
Scafidi, provided that he could also "demonstrate that the
damages for which he is responsible are capable of some
reasonable apportionment and what those damages are." Fosgate v.
Corona,
66 N.J. 268, 273 (1974); Scafidi, supra, 119 N.J. at 112-13.
The Appellate Division properly determined that the evidence
in the present case was insufficient to require a Scafidi charge
or to permit apportionment under Fosgate. The court stated, "the
record is devoid of the evidence which would have been necessary
in order to enable the jury to apportion damages between Ms.
Anderson's preexisting condition and defendant's negligence and
to determine the percentage value of that lost chance." The same
evidence is used in a Scafidi-type case to determine a
tortfeasor's fault and the apportionment of damages. Because the
evidence was insufficient to require a Scafidi charge, the
defendant should not be given "yet another bite of this
thoroughly-chewed apple." Whitfield v. Blackwood,
101 N.J. 500,
500 (1986) (Clifford, J., concurring); accord Lanzet, supra, 126
N.J. at 193 (Pollock, J., dissenting).
Next we must decide who has the burden of proof when a
Scafidi causation charge is requested. In the Scafidi-type case,
"the question is whether [a] plaintiff's damage claim should be
limited to the value of the lost chance for recovery." Scafidi,
supra, 119 N.J. at 111. Such damages can be characterized as
increased risk or reduced chance damages. Id. at 116-17
(Handler, J., concurring). Because the intent of a Scafidi-type
charge is to "more precisely confine[] physicians' liability for
negligence to the value of the interest damaged," either
plaintiff or defendant under varying circumstances may request
such a charge. Id. at 113.
Burden of proof is identical to burden of persuasion which
is defined as
the obligation of a party to meet the
requirements of a rule of law that the fact
be proved either by a preponderance of the
evidence or by clear and convincing evidence
or beyond a reasonable doubt, as the case may
be.
[N.J.R.E. 101(b)(1).]
Conceptually, this means the party requesting the Scafidi charge
has the burden of persuading the trial court and the jury based
on the proofs presented that the evidence is sufficient to
sustain such a charge.
Ordinarily, plaintiffs in medical malpractice cases have the
burden of proving negligence and proximate cause with respect to
both negligence and damages. Caldwell v. Haynes,
136 N.J. 422,
436 (1994); Buckelew v. Grossbard,
87 N.J. 512, 525 (1981);
Germann v. Matriss,
55 N.J. 193, 208 (1970). In a few
exceptional cases, however, the burden of proof on some issues
may shift to the defendant. Anderson v. Somberg,
67 N.J. 291,
300-302, cert. denied,
423 U.S. 929,
96 S. Ct. 279,
46 L. Ed.2d 258 (1975). In some other cases, the traditional "but for"
proximate cause standard is replaced with the more flexible
"increased risk substantial factor" charge articulated first in
Evers, supra, 95 N.J. at 417, and later in Scafidi, supra, 119
N.J. at 108.
The more flexible standard of causation in some medical
malpractice cases was deemed essential due to the difficulties
and unfairness of identifying, defining, and proving injury with
a standard "but for" proximate cause charge. Evers, supra, 95
N.J. at 413. The typical Evers-Scafidi case is one in which a
patient is on a downward course and defendant negligently fails
to alter that course by delaying proper treatment.
Typically, in an Evers-Scafidi type of case, it is the
plaintiff who will rely on the modified causation standard to
diminish the chances of a no cause under the "but for" test of
causation. The "increased risk substantial factor" standard
provides a less onerous burden for establishing causation. Olah,
supra, 119 N.J. at 129; Hake v. Manchester Township., 98 N.J.
302, 310 (1985). In Scafidi, it was the plaintiff who sought a
"substantial factor" charge. Scafidi v. Seiler,
225 N.J. Super. 576, 582 (App. Div. 1988), aff'd,
119 N.J. 93 (1990).
Consequently, a plaintiff relying on the Scafidi causation
standard generally has the burden of proving that defendant's
negligence caused an increased risk of harm to plaintiff and that
the increased risk was a substantial factor in causing the
ultimate harm. Notwithstanding the fact that the Scafidi
standard is less stringent than the "all or nothing but for"
standard, it does not alter a plaintiff's burden of proving the
case by a fair preponderance of the evidence. Battenfeld, supra,
247 N.J. Super. at 548.
Although the Scafidi substantial factor causation standard
was devised for the benefit of plaintiffs because it was the
defendant who effectively deprived the plaintiff of a greater
chance to survive or avoid deterioration, Evers, supra, 95 N.J.
at 417, there are cases, such as the present, in which the
defendant, not the plaintiff, seeks a Scafidi charge. If a case
clearly falls within the Evers-Scafidi parameters, then a
plaintiff cannot avoid apportionment of damages under Scafidi
because a plaintiff's recovery is "limited to the value of the
lost chance of avoiding harm." Scafidi, supra, 119 N.J. at 111;
Evers, supra, 95 N.J. at 412 n.7. But when it does not clearly
appear that a Scafidi charge is required and a plaintiff resists
such a charge, then a defendant has the burden of persuading the
trial court that a Scafidi charge is appropriate.
It is significant that only sixteen days passed between
plaintiff's initial examination by defendant and the amputation.
In a case such as this one, in which
the preexisting condition and the effect of
the defendant's tortious conduct attach
nearly simultaneously or within a relatively
short time, the burden of proving the extent
to which the preexisting condition reduced
the value of the interest in question should
be shifted to the defendant. If a defendant
seeks to reduce his liability by asserting
that part of the harm is not attributable to
his tortious conduct, the burden of proving
both that the plaintiff's injury is capable
of apportionment and what the apportionment
should be should rest on the defendant.
Under the suggested approach to chance, this
requirement would include determining the
extent to which the preexisting condition
reduced the value of the chance-interest
adversely affected by the defendant's
tortious conduct.
[King, supra, at 1393.]
Generally, no dispute exists with regard to the existence
and identity of a preexistent disease or condition in a Scafidi-type case. Should a dispute arise, as here, regarding those
issues, the defendant must bear the burden of establishing the
existence and identity of such a condition or disease. A
preexistent condition or disease is one that has become
sufficiently associated with a plaintiff prior to the defendant's
negligent conduct so that it becomes a factor that affects the
value of the plaintiff's interest destroyed by the defendant.
Id. at 1357.
The burden of proof required to satisfy a Scafidi causation
charge requires evidence that, within a reasonable degree of
medical probability, demonstrates that the defendant's delay in
making a proper diagnosis and rendering proper treatment
increased the risk of worsening the condition or disease, and
that the delay was a substantial factor in producing the
plaintiff's current condition. That burden must be sustained by
a fair preponderance of the evidence. Although the Court has
regarded the increase in risk resulting from the negligent act to
be "unquantifiable," Evers, supra, 95 N.J. at 406; see
Battenfeld, supra, 247 N.J. Super. at 546, 548, a defendant
nonetheless has the "burden of segregating recoverable damages
from those solely incident to the preexisting disease." Fosgate,
supra, 66 N.J. at 273.
In this case, however, defendant simply did not demonstrate
that he was entitled to either a Scafidi or Fosgate charge. In a
Scafidi-type case, the reasonable medical probability standard
for present purposes is sufficient to assist a jury on the issue
of causation. Evers, supra, 95 N.J. at 417; Coll v. Sherry,
29 N.J. 166, 175 (1959).
Plaintiff further contends that the Appellate Division should not have reversed the jury's verdict after it found that plaintiff's expert provided an ample basis for the jury to find a deviation from the accepted standard of podiatric practice, and
after it concluded that defendant failed to sustain the burden of
proving that he was entitled to a Scafidi charge.
In overturning the jury verdict, the Appellate Division read
too narrowly plaintiff's contention that defendant should have
ordered a bone biopsy. It interpreted the failure to obtain a
pre-operative biopsy as negligence based on an act of omission
without regard to how the biopsy would impact the determination
of whether osteomyelitis existed. Plaintiff's theory was that
defendant failed to utilize the most accurate diagnostic aid -- a
bone biopsy -- to determine whether there was osteomyelitis. It
was the absence of the biopsy in conjunction with other evidence
that plaintiff relied on to support her claim that she did not
have osteomyelitis. Plaintiff never contended that the failure
to obtain a biopsy was a proximate cause of the amputation.
Rather, she has consistently maintained that it was the absence
of osteomyelitis that made the amputation unnecessary, not simply
the failure to obtain a bone biopsy.
Viewed in that context, plaintiff identified a substantial
body of evidence from which the jury could have concluded that
osteomyelitis did not exist notwithstanding the substantial
evidence to the contrary, including Dr. Joseph's refusal to
testify that plaintiff was probably not suffering from
osteomyelitis.
In addition to the evidence previously identified, one day
prior to the amputation the toe exuded no pus and was only
slightly red. Defendant testified that although he has performed
more than one hundred toe amputations that did not involve
gangrene, this was the first amputation he performed without
first obtaining a bone biopsy. The pathologist's post-operative
examination revealed "chronic inflammation" that was not
specified as osteomyelitis. Indeed, plaintiff's expert testified
that "chronic inflammation" was consistent with plaintiff's
arthritis rather than osteomyelitis.
Finally, our careful study of the record fails to disclose
sufficient evidence to support the Appellate Division's
conclusion that failure to administer IV therapy constituted
negligence. Defendant as well as the experts who testified on
behalf of plaintiff and defendant stated that IV therapy would
have made no difference in this case.
The judgment of the Appellate Division is reversed and the
jury verdict reinstated.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI and STEIN join in JUSTICE COLEMAN's opinion.
NO. A-72 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
BARBARA ANDERSON,
Plaintiff-Appellant,
v.
DR. JOSEPH PICCIOTTI,
Defendant-Respondent,
and
ASSOCIATED PODIATRISTS, j/s/a
Defendant.
DECIDED May 23, 1996
Chief Justice Wilentz PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY
DISSENTING OPINION BY