SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-1256-94T1
CLINTON BRYANT AND PRISCILLA
BRYANT,
Plaintiffs-Respondents,
v.
CHARLES CALANTONE, D.D.S.,
Defendant-Appellant.
_________________________________________________________________
Argued: November 6, 1995 - Decided: January
16, 1996
Before Judges Havey, D'Annunzio and
Braithwaite.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County.
Jane S. Kelsey argued the cause for appellant
(Reiseman & Sharp attorneys; Ms. Kelsey on
the brief).
Dennis J. Drasco argued the cause for
respondents (Lum, Danzis, Drasco, Positan &
Kleinberg attorneys; Mr. Drasco, Lisa A.
Firko, Kevin J. O'Connor and Patricia A. Ryan
on the brief).
The opinion of the court was delivered by:
BRAITHWAITE, J.A.D.
In this dental malpractice case, defendant appeals from a
judgment entered on a jury verdict awarding damages to
plaintiffs. Plaintiff Clinton BryantSee footnote 1 was awarded $457,625 in
damages. With pre-judgment interest of $76,548.29, the total
award was $535,173.29. The jury awarded plaintiff Priscilla
Bryant $5,250 on her per quod claim, and with pre-judgment
interest the total award was $6,127.12. Defendant asserts
several points on this appeal. Foremost, defendant contends that
the trial judge erred in failing to charge the jury on the
doctrine of comparative negligence. We disagree. However, we
are satisfied that the trial judge erred in not charging the
doctrine of avoidable consequences with respect to the issue of
damages. Accordingly, we reverse and remand for a new trial on
the issue of damages only.
For purposes of this appeal, we essentially accept the
version of events as presented by plaintiff. Sometime in 1966,
while a member of the armed services, plaintiff became aware that
he had a heart murmur. In September of 1989, after suffering a
chemical exposure at work, plaintiff was rushed to the hospital.
There again, he was told of his heart murmur and advised to see a
cardiologist.
Later that month, plaintiff saw Dr. Romeo Tiu, a
cardiologist. Dr. Tiu advised plaintiff that if he has any type
of dental work performed, he must be given antibiotics.
Plaintiff testified at trial that Dr. Tiu told him he was to be
given antibiotics for a full week prior to the dental procedure
and for a full week subsequent to the procedure. However, Dr.
Tiu disputed plaintiff's testimony and testified that he told
plaintiff he was to take three grams of amoxicillin (antibiotic)
one hour before the dental procedure and one and one-half grams
of amoxicillin six hours later.
Prior to 1989, plaintiff became a dental patient of
defendant. Following plaintiff's visit with Dr. Tiu, defendant
was advised that plaintiff had a heart murmur and would require
antibiotic treatment with any dental procedure, including teeth
cleaning.
On January 25, 1991, plaintiff had a five o'clock
appointment with defendant to have his teeth cleaned and x-rayed.
When plaintiff arrived for the appointment, he told defendant
that the cleaning would not be possible that day. He advised
defendant, in accordance with what he believed his cardiologist
told him, that since he had not taken any antibiotics for the one
week period prior to January 25, 1991, the procedure should be
rescheduled. Defendant, however, advised plaintiff that he did
not need antibiotics for such a period prior to the cleaning.
Defendant then placed a dose of the medication in a cup and
handed it to plaintiff. According to plaintiff, defendant said:
"this is all you need." Plaintiff took the medication with a cup
of water.
Approximately forty-five minutes to one hour later,
defendant cleaned and x-rayed plaintiff's teeth. After the
treatment, defendant told plaintiff that everything had gone well
and that he had no cavities. Plaintiff testified that he paid
the bill and left. He further testified that neither defendant,
nor defendant's wife, who worked in the office, gave him any
further medication to take, nor did they give him a prescription
to obtain medication. However, plaintiff did not ask defendant
for any medication, nor did he ask defendant for a prescription.
Plaintiff said he did not question defendant anymore because he
trusted him and had confidence in him, despite the contrary
medical advice he received from his cardiologist, Dr. Tiu.
Furthermore, after leaving defendant's office, plaintiff did not
contact Dr. Tiu concerning the treatment provided by defendant.
Within two weeks of plaintiff's dental treatment he became
very ill. Plaintiff was diagnosed with bacterial endocarditis.
As a result, plaintiff required an aortic valve replacement and
subsequent surgeries to repair or replace the prosthetic heart
valve. Plaintiff's heart surgeries were performed in both New
Jersey and Texas.
As noted, defendant asserts that the trial judge erred in not charging comparative negligence. Defendant opposed this suit claiming he had given plaintiff a prescription for amoxicillin to be taken six hours after the dosage administered in defendant's office. Originally, it was defendant's position that plaintiff was negligent in not filling the prescription that defendant provided for the post-treatment antibiotics. However, the jury rejected this position and found that defendant had deviated from accepted standards of dental practice in not providing plaintiff with the post-procedure antibiotics or a prescription for same.
However, on appeal, defendant alters his basis for a
comparative negligence charge. Defendant now urges that in light
of plaintiff's knowledge of his medical condition and the
instructions given to him by his cardiologist, the jury should
have been instructed to consider plaintiff's failure to say
something to defendant about the lack of a post-treatment dosage
of antibiotics and his failure to consult with his cardiologist
about the lack of post-treatment medication. Defendant asserts
that plaintiff's lack of action in this regard is comparative
negligence. We agree with defendant that plaintiff's post-treatment conduct was relevant to the trial. However, as
discussed infra, the conduct was relevant to the issue of damages
and not comparative negligence.
"Although . . . the defense of contributory negligence is
`fully applicable' in [dental] malpractice actions," the issue of
the patient's fault or contribution to the harm suffered is
difficult to resolve. Cowan v. Doering,
215 N.J. Super. 484, 493
(App. Div. 1987), aff'd,
111 N.J. 451 (1988) (quoting Flynn v.
Stearns,
52 N.J. Super. 115, 121 (App. Div. 1958)). "In [dental]
malpractice cases, contributory or comparative negligence,
avoidable consequences, and proximate cause are interwoven and
dependent upon events that occur over time." Madelynn R. Orr,
Defense of Patient's Contribution to Fault in Medical
Malpractice,
25 Creighton L. Rev. 665, 676 (1992). In assisting
a jury to decide a case involving "the defense of patient's
fault, courts must first clarify the sequence of events in
relation to the doctrines of contributory or comparative
negligence, proximate cause and avoidable consequences." Ibid.
See Ostrowski v. Azzara,
111 N.J. 429 (1988).
"[I]n our fault-based system of tort reparation, the
patient's conduct must be divided into three categories in
determining whether the patient shares any fault" and if so, what
principles of law apply to that fault. D'Aries v. Schell,
274 N.J. Super. 349, 359 (App. Div. 1994). "The three temporal
headings under which the patient's conduct is to be examined are
(1) the pre-treatment period, (2) the treatment period during
which the alleged malpractice occurred, and (3) the post-malpractice period." Ibid.
"The pre-treatment health habits of a patient are not to be
considered as evidence of fault that would have otherwise been
pled in bar to a claim of injury due to the professional
misconduct of a health professional." Ostrowski, supra, 111 N.J.
at 444. "Such matters are germane to the issue of proximate
cause exclusively." D'Aries, supra, 274 N.J. Super. at 359.
Comparative negligence, "however, comes into action when the
injured party's carelessness occurs before defendant's wrong has
been committed or concurrently with it." Ostrowski, supra 111
N.J. at 438. Last in the series of events, "the conduct of the
patient following the period of alleged negligent treatment . . .
is relevant to the issue of damages," only. D'Aries, supra, 274
N.J. Super. at 359. Avoidable consequences is the doctrine that
applies when "the injured party's carelessness occurs after the
defendant's legal wrong has been committed." Ostrowski supra 111
N.J. at 438. "[T]he doctrine of avoidable consequences affects
only the question of diminution of damages; it has no impact on
comparative fault (liability) issues." D'Aries, supra, 274 N.J.
Super. at 360.
Here, based on the evidence, the doctrine of avoidable
consequences should have been charged to the jury. "The doctrine
proceeds on the theory that a plaintiff who has suffered an
injury as the proximate result of a tort cannot recover for any
portion of the harm that by the exercise of ordinary care he
could have avoided." Ostrowski supra, 111 N.J. at 437. "[T]he
injured person may not recover damages that do not result
proximately from the defendant's breach of duty. Damages that
might be avoided or mitigated are, therefore, not recoverable."
Gideon v. Johns-Manville Sales Corp.,
761 F.2d 1129, 1139 (5th
Cir. 1985).
We are satisfied that plaintiff engaged in no careless
conduct during the course of defendant's negligent dental
treatment that would allow a reasonable jury to find plaintiff
comparatively negligent. The evidence is clearly to the
contrary. Plaintiff advised defendant of the need to have
antibiotics both before and after the dental procedure.
Moreover, defendant was aware of plaintiff's medical condition
requiring that he be provided antibiotics both before and after
any dental procedure. When plaintiff told defendant that he had
not been medicated and advised defendant of what he believed he
needed, defendant told plaintiff he was incorrect. According to
plaintiff's testimony, defendant told plaintiff "this is all you
need," as he handed plaintiff antibiotic pills to take with
water, prior to the dental procedure. The jury, obviously
believing plaintiff's testimony, found that defendant did not
provide plaintiff with any post-procedure medication, either
directly or by prescription. Based on this evidence the jury
could find, and did find, that defendant committed an act of
negligence.
Although plaintiff was aware that he should receive
medication post the dental procedure, his action in not asking
defendant for medication or consulting with his cardiologist is
temporally after defendant's malpractice. "[A] [health
professional] must exercise the degree of care commensurate with
the needs of the patient as [he] presents [himself]." Ostrowski,
supra, 111 N.J. at 432. Here, plaintiff presented himself as a
dental patient who required particular care, of which defendant
was aware, that defendant did not provide. Defendant's failure
to provide the post-procedure of medication is negligence.
Plaintiff's action or lack of action did not bring about or
accentuate defendant's act of negligence.
Moreover, we are satisfied that public policy considerations
preclude, under the facts of this case, submission of the
question of comparative negligence to the jury. "The improper or
inappropriate imposition of the defense of [comparative]
negligence can lead to the dilution or diminution of a duty of
care." Cowan v. Doering,
111 N.J. 451, 467 (1988). "The
tortfeasor could become indifferent to the performance of his
duty knowing that the very eventuality that he is obliged by law
to prevent would, upon its occurrence, relieve him from
responsibility." Cowan v. Doering, supra, 215 N.J. Super. at
495. "[W]e must avoid the indiscriminate application of the
doctrine of comparative negligence (with its fifty percent
qualifier for recovery) when the doctrine[] of avoidable
consequences . . . app[lies]." Ostrowski, supra, 111 N.J. at
441. "`It would be anomalous to hold that defendant, [a health
care professional], has a duty to . . . [meet the acceptable
standards for delivery of health care] but a breach of that duty
results in no liability for the very injury the duty was meant to
protect against.'" Cowan v. Doering, supra, 111 N.J. at 467
(quoting Bexiga v. Havir Manufacturing Corp.,
60 N.J. 402, 412
(1972)).
Having concluded that the trial court did not err in refusing to charge comparative negligence does not mean that plaintiff's conduct post defendant's negligence was irrelevant to the trial. "We do not in any sense minimize patients' responsi-bility to care for themselves." Tobia v. Cooper Medical Center, 136 N.J. 335, 343 (1994). Here, "defendant[] can assert a patient's self-neglect to limit damages." Ibid.
The error in this case, however, is that the trial judge gave no instruction to the jury concerning plaintiff's actions
after the dental treatment. Although the issue of avoidable
consequences was not raised below, we are satisfied that the lack
of a charge thereon constitutes plain error, that is, error
"clearly capable of producing an unjust result." R. 2:10-2.
Plaintiff clearly was aware of his medical condition and was
advised that he needed to be given antibiotics both before and
after dental treatments. Although plaintiff's testimony was
inconsistent with that of Dr. Tiu's in terms of the duration for
taking the antibiotics, plaintiff knew of their necessity. After
defendant's failure to provide post-procedure medication,
plaintiff did not ask him about it, nor did he contact his
cardiologist. A reasonable jury could conclude that a patient
who was told he had to be medicated for one week both before and
after his dental procedure, who was only medicated one hour prior
thereto, could have mitigated his damages by inquiring of
defendant or his cardiologist about the post dental procedure
medication in an effort to insure that he received proper care.
A reasonable jury could conclude based on the evidence, with an
appropriate jury instruction, that plaintiff's conduct serves to
decrease the amount of his damage award.
Hence, we approve in this context of
post-treatment conduct submission to the jury
of the question whether the just mitigation
or apportionment of damages may be expressed
in terms of the [plaintiff's] fault. If
used, the numerical allocation of fault
should be explained to the jury as a method
of achieving the just apportionment of the
damages based on their relative evaluation of
each actor's contribution to the end result-that the allocation is but an aspect of the
doctrine of avoidable consequences or of
mitigation of damages. In this context,
plaintiff should not recover more than [he]
could have reasonably avoided, but the
patient's fault will not be a bar to recovery
except to the extent that [his] fault caused
the damages.
An important caveat to that statement
would be the qualification that implicitly
flows from the fact that health care
professionals bear the burden of proving that
their mistreatment did not aggravate a
preexisting condition: that the health care
professional bear the burden of proving the
damages that were avoidable.
[Ostrowski, supra, 111 N.J. at 446 -47.]
Having addressed the issue raised in Point I of defendant's
brief, and concluded that defendant is entitled to a new trial on
the issue of damages, we do not address the remaining points in
the brief. The judgment is reversed and the matter is remanded
for a new trial on the issue of damages only.
Footnote: 1 Plaintiff in this opinion refers to Clinton Bryant.