(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).
Argued October 23, 1995 -- Decided January 30, 1996
GARIBALDI, J., writing for a unanimous Court.
On October 11, 1984, sixty-one-year-old Rachel Fischer went to the emergency room of Newark
Beth Israel Medical Center (Beth Israel) for treatment of a fractured shoulder. Dr. Arthur T. Canario, an
orthopedic surgeon, admitted Mrs. Fischer for the night at her request. Dr. Canario was listed as the
attending physician, although he did not treat her after her admission to the hospital. Mrs. Fischer was
discharged the following day.
In accordance with hospital procedures for admitted patients, an x-ray was taken of Mrs. Fischer's
chest. Dr. Norman Magid, a radiologist, interpreted the x-ray and prepared a report that indicated a
probable tumor. That report was later attached to the x-ray and placed in Mrs. Fischer's hospital chart.
However, Dr. Canario was not aware of this report. As the attending physician, Dr. Canario was required to
sign the patient's chart, which he did approximately one week after Mrs. Fischer had been discharged. He
looked through the chart at that time but did not see the x-ray or Dr. Magid's report.
In June 1987, Mrs. Fischer was diagnosed as suffering from metastatic lung cancer. After several
months of treatment that included radiation therapy and chemotherapy, Mrs. Fischer died on February 16,
1988.
In April 1989, Jerry Fischer (Fischer), Mrs. Fischer's son and administrator of her estate, sued Dr.
Canario and Dr. Magid for medical malpractice. The trial began in March of 1993. Fischer testified as to
his mother's physical and emotional suffering; an economist testified as to the loss sustained by Mrs.
Fischer's children and grandchildren; and the parties stipulated as to the medical and funeral expenses.
Fischer also presented expert testimony that the standard of reasonable medical care required that prior to
signing a patient's chart, a doctor must know of the results of all tests performed on his or her patient. The
parties stipulated, and the judge told the jury, that if the cancer had been diagnosed in October 1984, Mrs.
Fischer would have had a fifty percent chance of survival. The judge refused to include an ultimate outcome
charge in the instructions to the jury.
The jury found Dr. Canario negligent and awarded Fischer a total of $134,231 in damages. Initially,
the trial court determined that the damage-apportionment rule announced in Scafidi on May 24, 1990 applied
and reduced the verdict by fifty percent to $67,115. After the trial, Fischer moved for an increase in the
amount of damages awarded or, alternatively, for a new trial. The trial court denied those motions but
reversed its initial ruling on the application of Scafidi. The court found that, based on the Appellate
Division's interpretation of Scafidi's prospectivity in Roses v. Feldman, Scafidi did not apply.
Both parties appealed. On the Scafidi issue, the Appellate Division reasoned that the prospective
application of the Scafidi rule was intended to apply only to causes of action that accrued after May 24, 1990,
the date of the decision. Thus, the Appellate Division concluded that the trial court properly declined to
apply Scafidi and the verdict remained $134,231. The Appellate Division rejected Fischer's ultimate outcome
argument.
The Supreme Court granted Dr. Canario's petition for certification to review the Appellate
Division's prospective application of the Scafidi damage-apportionment rule. The Court also granted
Fischer's cross-petition to review whether the trial court erred in not providing the ultimate outcome charge
to the jury.
HELD: Based on a weighing of the three factors -- public policy, reliance, and the effect on the
administration of justice -- the damage-apportionment rule announced in Scafidi on May 24, 1990
applies to cases tried after the date of that opinion. In addition, the trial court erred in declining to
give the ultimate outcome charge; that omission was capable of misleading the jury.
1. In Scafidi, the Court held that in a case where the evidence demonstrates that negligent medical treatment
increased the risk of harm posed to a patient by a preexisting condition, defendant's liability is limited to the
value of the lost chance for recovery attributable to defendant's negligence. The Scafidi rule was given
prospective application; however, case law that has addressed the scope of prospectivity offers little guidance.
(pp. 6-9)
2. In determining the scope of prospective application of the Scafidi damage-apportionment rule, three
factors should be examined: (1) the purpose of the new rule of law and whether it would be advanced by
retroactive application (the public-policy factor); (2) the reliance placed on the old rule by the parties and
the community; and (3) the effect that retroactive application would have on the administration of justice.
Any decision concerning prospectivity involves questions of public policy and basic notions of judicial fairness.
Because of public policy and fairness, courts often have applied a new rule of law to all pending and future
cases. (pp. 9-17)
3. The public-policy factor is pivotal in determining the degree of prospectivity that should attach to the
Scafidi damage-apportionment rule. Scafidi clarified what already was implicit under Evers v. Dollinger,
namely, that damage apportionment is an essential complement of Evers' increased risk theory. Principles of
fundamental fairness dictate that a physician's liability in a medical malpractice action be limited to the value
of lost chance for recovery attributable to the doctor's negligence. Moreover, the rule serves an important
societal interest as it relates to the increasing costs of medical care. (pp. 17-19)
4. A purely prospective application of the damage-apportionment rule would clearly frustrate the purpose of
Scafidi. Although the rule represents a significant change in the law, it was foreshadowed by Evers and
Fosgate and was, therefore, not unexpected. Application of the damage-apportionment rule does not upset
any reliance interest and neither party can show that they would be unfairly prejudiced by the application of
the rule. Application of the rule to cases tried after May 24, 1990 would not necessitate any retrials, thereby
comporting with the third factor, administrative efficiency. (pp. 19-21)
5. The value of an ultimate outcome charge in lost-chance cases is that it informs the jurors of the effect of
their causation apportionment. The charge makes clear that they are to award full damages, and the trial
court will make any necessary adjustments to those findings. Thus, when the Scafidi damage-apportionment
rule is applicable, an ultimate outcome charge generally should be given. In this case, an ultimate outcome
charge should have been given by the trial court to prevent juror confusion and the possibility that jurors
carried the fifty percent proximate cause figure into their deliberations on damages. (pp. 21-27)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court
for a new trial on damages only in accordance with this opinion.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and
COLEMAN join in JUSTICE GARIBALDI'S opinion.
SUPREME COURT OF NEW JERSEY
A-56/9l September Term l995
JERRY FISCHER, Administrator
and Administrator ad
Prosequendum of the Estate of
Rachel Fischer, deceased,
Plaintiff-Respondent
and Cross-Appellant,
v.
ARTHUR T. CANARIO, M.D.,
Defendant-Appellant
and Cross-Respondent,
and
NORMAN MAGID, M.D. and
JOHN DOES l through 5,
Defendants.
Argued October 23, l995 -- Decided January 30, 1996
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
277 N.J. Super. 302 (l994).
Hugh Francis argued the cause for appellant
and cross-respondent (Francis & Berry,
attorneys; Peter A. Olsen, on the briefs).
Thomas R. Chesson argued the cause for
respondent and cross-appellant (Porzio,
Bromberg & Newman, attorneys; William A.
Krais, on the briefs).
The opinion of the Court was delivered by
GARIBALDI, J.
The primary issue in this appeal is the scope of the
prospective application of the damage-apportionment rule
announced by the Court in Scafidi v. Seiler,
119 N.J. 93 (1990).
Also at issue is whether the trial court erred in refusing to
give the jury an "ultimate outcome" charge.
On October ll, l984, Rachel Fischer, then sixty-one years old, went to the emergency room of Newark Beth Israel Medical Center (Beth Israel) as a result of a fall. Dr. Arthur T. Canario, an orthopedic surgeon, examined an x-ray of her shoulder, diagnosed her injury as a fracture, applied a sling, administered medication for her pain, and told her to go home and make an appointment for a follow-up visit. However, Mrs. Fischer requested that she be admitted for the night, because she would be alone at her residence. Dr. Canario reluctantly admitted her and was listed as her attending physician, although he did not treat her after her admission. Mrs. Fischer left the hospital the next morning.
Pursuant to hospital procedure for admitted patients, an x-ray was taken of Mrs. Fischer's chest. Based on that x-ray, Dr. Norman Magid, a radiologist, prepared a report that indicated a probable tumor. Some time thereafter, that report was attached to the x-ray and placed in Mrs. Fischer's hospital chart. Dr. Canario was not aware of that report. Because Dr. Canario was listed as her attending physician, he was required to sign her chart, which he did approximately one week after Mrs. Fischer had been discharged from the hospital. Although he looked through
the records attached to Mrs. Fischer's chart, he saw neither the
x-ray nor the radiological report. According to Dr. Canario,
they were not attached to her chart at that time because "it took
a long time for x-ray reports to come back to the chart. It'd be
highly unlikely it would be back in a week." Thereafter, Dr.
Canario examined her bone fracture several times, but said
nothing about her probable tumor, of which he was unaware.
In June l987, Mrs. Fischer was diagnosed as suffering from
metastatic lung cancer. After undergoing radiation therapy and
two cycles of chemotherapy, and suffering from, among other
things, brain seizures, she died on February l6, l988.
In April l989, Jerry Fischer, Mrs. Fischer's son and the
administrator and administrator ad prosequendum of Mrs. Fischer's
estate, sued Dr. Canario and Dr. Magid for medical malpractice.
The trial commenced on March l8, l993. At trial, Jerry Fischer
testified about his mother's extensive physical suffering
stemming from the cancer, including her severe nausea, loss of
appetite, and general weakness. He also described the severe
emotional repercussions of her chemotherapy treatment. As she
lost her hair, Mrs. Fischer, a Holocaust survivor, began to
relive her concentration camp experiences. Scars and bumps,
hidden for years by her hair, were revealed and served as
constant reminders of her World War II experiences.
Frank Tinari, an economist, testified for the plaintiff that
Mrs. Fischer's children and grandchildren sustained a loss of
over $l00,000 by being deprived of Fischer's advice, guidance,
and counsel during the period between her actual death and her
statistical date of death (2006). He further testified that the
children and grandchildren sustained a loss of over $44,000 due
to loss of companionship. Based on testimony of Fischer's son
and daughter, Tinari stated that the children had also lost the
opportunity to receive gifts totalling approximately $30,000.
The parties stipulated to medical expenses of $45,000 and funeral
expenses of $5,000.
Plaintiff presented expert testimony that the prevailing
standard of reasonable medical care required a patient's
attending physician, prior to signing a patient's chart, to know
the tests performed on his or her patient and the results of
those tests. There was testimony that Dr. Canario's failure to
review the chest x-ray and inform Mrs. Fischer of the probable
tumor was a "substantial factor in causing [her] to lose her 50
percent chance of a cure which she had as of October ll, l984."
The parties stipulated, and the trial court informed the jury,
that if the cancer had been diagnosed in October l984, Mrs.
Fischer would have had a fifty percent chance of survival. The
trial court, however, rejected plaintiff's request to include an
ultimate outcome charge in the instructions to the jury.
The jury found that Dr. Canario, but not Dr. Magid, had been
negligent, and awarded plaintiff a total of $l34,23l in damages,
$96,687 on the decedent's survivorship claim and $37,544 for the
wrongful-death claim. Initially, the trial court determined that
the damage-apportionment rule announced in Scafidi, supra,
applied to this case and reduced the verdict from $l34,23l to
$67,ll5. After the trial, plaintiff moved for an additur, or
alternatively for a new trial. The trial court denied both
motions. However, in response to those post-trial motions the
trial court reversed its initial ruling on the application of
Scafidi. Although the court believed that the Scafidi rule
should apply because "it was a rule of equity," it concluded that
based on the Appellate Division's interpretation of Scafidi's
prospectivity in Roses v. Feldman,
257 N.J. Super. 2l4 (l992),
Scafidi did not apply. The court therefore reinstated the
$l34,23l verdict.
Both parties appealed to the Appellate Division. Dr.
Canario argued that a judgment notwithstanding the verdict should
have been entered in his favor because the evidence failed to
establish that he had a duty to inform Mrs. Fischer about her
chest x-ray, and further, that if the verdict were sustained it
should be reduced because the Scafidi damage-apportionment rule
was applicable. Plaintiff cross-appealed from the judgment
contending that the trial court's denial of his request for an
ultimate outcome charge was prejudicial error.
In considering the Scafidi issue, the Appellate Division
observed that in this case the negligence (October l984), the
accrual of the wrongful-death cause of action (February l988),
and the filing of the complaint (April l989) occurred prior to
the Scafidi decision (May 24, l990). The trial, however,
commenced in March l993, and judgment was entered in May l993.
The Appellate Division "infer[red] that the prospective
application of [Scafidi's] damage rule was intended to apply only
to causes of action which accrued after the date the Supreme
Court issued its Scafidi opinion."
277 N.J. Super. 302, 3l0
(1994). The court emphasized that it had been "attempting only
to interpret the prospectivity rule announced in Scafidi.
Because the Supreme Court declared that Scafidi should be applied
only prospectively, we do not consider ourselves free to decide
on policy grounds whether or not it should be applicable to a
medical malpractice case like the present one." Id. at 3l0 n.l.
Therefore, the Appellate Division concluded that the trial court
properly declined to apply Scafidi and the verdict remained
$l34,23l. The Appellate Division rejected plaintiff's ultimate
outcome charge argument.
We granted defendant's petition for certification, ___ N.J.
___ (l995), to review the Appellate Division's prospective
application of the damage-apportionment rule announced in Scafidi
v. Seiler, ll
9 N.J. 93 (l995). Subsequently, we granted
plaintiff's cross-petition, ___ N.J. ___ (l995), to review
whether the trial court erred in not providing an ultimate
outcome charge to the jury.
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, ll9 N.J. ll9, 574 A.2d 4ll (l990), also decided today, shall be prospective only. See Weinberg v. Dinger, l 06 N.J. 469, 524 A.2d 366 (l987).
However, we did not interpret the scope of the prospective
application of the Scafidi rule. We turn to that interpretation
now.
As expected, the parties take opposing positions as to what
the Court meant by "prospective." Plaintiff asserts that the
Court intended Scafidi to apply only to cases whose causes of
action accrued after May 24, l990, the date this Court issued the
Scafidi opinion. Defendant asserts that the Court intended
Scafidi to apply only to cases tried after May 24, l990, as
opposed to cases that were pending when Scafidi was decided.
The case law that has addressed Scafidi's prospectivity
application offers little guidance. The trial court relied on
Roses v. Feldman,
257 N.J. Super. 2l4 (App. Div. l992), a medical
malpractice case in which the court declined to apply the Scafidi
rule. The Roses court stated that "[t]he effect of Scafidi . . .
on damages, that is to say, the limitation on damages to reflect
the lost chance attributable to the defendant's negligence was
explicitly made prospective only." Id. at 2l9 (citation
omitted). Although the cause of action in Roses accrued before
Scafidi was decided, the court could not ascertain when the case
was tried and decided.
We agree with the Appellate Division's conclusion that the
other case law addressing Scafidi's prospectivity requirement,
namely, Lanzet v. Greenberg, l26 N.J. l68 (l99l), "does not
provide . . . clear guidance on the meaning of Scafidi's
prospectivity rule." 277 N.J. Super. at 309. In Lanzet, supra,
a medical malpractice case, the original trial, as well as the
retrial and disposition of the retrial by the Appellate Division,
see Lanzet v. Greenberg,
243 N.J. Super. 2l8 (decided Jan. l9,
l990), occurred prior to this Court's decision in Scafidi. The
Court in Lanzet, supra, held that the trial court improperly
failed to "require the jury to determine whether the physicians'
neglect increased the risk of harm to the patient and whether
that increased risk was a substantial factor in producing her
injuries." l26 N.J. at l88 (citing Evers, supra). The Court
continued: "We have the inestimable benefit of hindsight in
assessing the merits of this case. In our l990 decisions in
[Scafidi and Olah] we prospectively limited recovery in such
circumstances to the value of the `lost chance' attributable to
the physician's neglect." Ibid. (citations omitted). In
dissent, Justice Pollock critiqued the majority for "ignoring"
Scafidi's "prospective-only application of the increased risk
damage analysis." Id. at 207 (Pollock, J., dissenting).
Courts are constantly struggling with the task of determining the degree to which a new rule should be applied retroactively or prospectively. As far back as 1940 Chief Justice Charles Evans Hughes lamented that questions of retroactivity were "among the most difficult" problems that
engage the attention of both federal and state courts. See
Chicot County Drainage Dist. v. Baxter State Bank,
308 U.S. 371,
374,
60 S. Ct. 317, 319,
84 L.Ed. 329, 333 (1940); Rutherford
Educ. Ass'n v. Rutherford Bd. of Educ.,
99 N.J. 8, 21 (1985);
Coons v. American Honda Motor Co., Inc.,
96 N.J. 419, 425 (1984)
(Coons II), cert. denied,
469 U.S. 1123,
105 S.Ct. 808,
83 L.Ed.2d 800 (1985).
This Court has generally adhered to the traditional rule of
jurisprudence that the overruling of past precedent is
retrospective in nature. Darrow v. Hanover Tp.,
58 N.J. 410, 413
(1971); see also Rutherford, supra, 99 N.J. at 21; Coons II,
supra, 96 N.J. at 439; Busik v. Levine,
63 N.J. 351, 360-61, app.
dism.,
414 U.S. 1106,
94 S.Ct. 831,
38 L.Ed.2d 733 (1973);
Wangler v. Harvey,
41 N.J. 277, 287 (1963); Fox v. Snow,
6 N.J. 12, 14 (1950); Cogliati v. Ecco High Frequency Corp.,
181 N.J.
Super. 579, 582 (App. Div. 1981), aff'd,
92 N.J. 402 (1983).
However, "[s]ound policy grounds may justify limiting the
retroactive effect. . . ." Mirza v. Filmore Corp.,
92 N.J. 390,
397 (l983).
This Court has held that in determining whether to apply a
new rule prospectively or retroactively a court may follow one of
four options:
(1) make the new rule of law purely
prospective, applying it only to cases whose
operative facts arise after the new rule is
announced; (2) apply the new rule to future
cases and to the parties in the case
announcing the new rule, while applying the
old rule to all other pending and past
litigation; (3) grant the new rule limited
retroactivity, applying it to cases in (1)
and (2) as well as to pending cases where the
parties have not yet exhausted all avenues of
direct review; and, finally, (4) give the new
rule complete retroactive effect, applying it
to all cases, even those where final
judgments have been entered and all avenues
of direct review exhausted.
[State v. Burnstein,
85 N.J. 394, 402-03
(1981) (citing State v. Nash,
64 N.J. 464,
468-70 (1974)).]
In assessing which option to choose, a court's decision is
guided by "what is just and consonant with the public policy
considerations in the situation presented." Rutherford, supra,
99 N.J. at 22; see also Accountemps Div. of Robert Half of
Philadelphia, Inc. v. Birch Tree Group, Ltd.,
115 N.J. 614, 628
(1989) ("The primary concern with retroactivity questions is with
'considerations of fairness and justice, related to reasonable
surprise and prejudice to those affected.'") (quoting New Jersey
Election Law Enforcement Comm'n v. Citizens to Make Mayor-Council
Gov't Work,
107 N.J. 380, 388 (1987)).
The question of the scope of the prospective application of
the Scafidi damage-apportionment rule "is not answered by any
constitutional mandate." State v. Nash,
64 N.J. 464, 470 (l974).
Rather, the competing considerations in each case are weighed by
examining the following three factors: (1) the purpose of the
new rule and whether it would be advanced by retroactive
application; (2) the reliance placed on the old rule by the
parties and the community; and (3) the effect that retroactive
application would have on the administration of justice.
Rutherford, supra, 99 N.J. at 22 (citing State v. Burstein,
supra, 85 N.J. at 406). The United States Supreme Court has
recommended a similar set of factors. Chevron Oil Co. v. Huson,
404 U.S. 97, 106-07,
92 S.Ct. 349, 355,
30 L.Ed.2d 296, 306
(1971).
Depending on the facts of a case, any one of those three
factors may be pivotal. Rutherford, supra, 99 N.J. at 23. For
example, the first factor, whether the purpose of the new rule
would be advanced by retroactive application, is pivotal in cases
where the new rule is an exclusionary rule of evidence. Ibid.
In such a situation, the rule is rarely given retroactive effect,
since "the deterrent purposes of such a rule would not be
advanced by applying it to past misconduct." State v. Burstein,
supra, 85 N.J. at 406. See State v. Catania,
85 N.J. 418, 446-47
(1981); State v. Carpentieri,
82 N.J. 546, 549 (1980); State v.
Howery,
80 N.J. 563, 569, cert. denied,
444 U.S. 944,
100 S.Ct. 527,
62 L.Ed.2d 424 (1979).
In other cases the determinative factor is the reliance
placed on the old rule by the parties and the community.
Rutherford, supra, 99 N.J. at 23; Coons II, supra, 96 N.J. at
440; Salorio v. Glaser,
93 N.J. 447, cert. denied,
464 U.S. 993,
104 S.Ct. 486,
78 L.Ed.2d 682 (1983). For example, in New Jersey
Bd. of Higher Educ. v. Shelton College,
90 N.J. 470, 490 (1982),
this Court enjoined an unlicensed college from granting degrees
but allowed the school to award credits and degrees to junior and
senior students in recognition of the students' pursuit of
educational goals in good faith reliance on the credibility of
the institution. Similarly, in Salorio, supra, despite this
Court's declaration that the Emergency Transportation Tax Act,
N.J.S.A. 54:8A-1 to -57, was unconstitutional, this Court applied
the decision prospectively because of the State's reliance on the
taxing statute as a significant source of revenue contributing to
the solution of the State's fiscal problems. 93 N.J. at 467.
See also Passaic v. Local Fin. Bd.,
88 N.J. 293, 303 (1982)
(holding that despite municipality's possible lack of good faith
in adopting emergency appropriation request in violation of
N.J.S.A. 40A:4-46, Court would not review appropriation because
expenditures in reliance thereon could not be undone).
In other cases, we examined the effect that the new rule
would have on the effective administration of justice, the third
factor. In State v. Burstein, supra, 85 N.J. at 410, we held
that even limited retroactive application of the rule announced
in State v. Cerbo,
78 N.J. 595 (l979), namely, that a delay in
presenting tapes of intercepted conversations for sealing
requires suppression unless there was satisfactory explanation
for delay, would inflict "virtually incalculable" costs on our
administration of justice. See also State v. Catania, supra, 85
N.J. at 447 (holding that rule announced excluding the results of
a wiretap because of improper minimization should not be applied
retroactively because to reopen cases, even on a limited basis,
for detailed hearings on the reasonableness of the interception
of each phone call during each wiretap would overwhelm the
courts).
Any prospectivity decision necessarily involves questions of public policy and basic notions of judicial fairness. Rutherford, supra, 99 N.J. at 22. For example, as a matter of public policy, to encourage litigants to challenge common law doctrines, courts often apply the new rule only to future cases and to the litigants whose efforts forged the development of the new legal rule. Darrow, supra, 58 N.J. at 420. This "limited prospective approach" was applied in Darrow, where we held that the abrogation of interspousal tort immunity in automobile negligence actions should be applied only to the litigants in that case and to persons suffering injuries after the date the new rule was announced. Ibid. See also Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 449 (1993) (applying newly recognized duty for real-estate brokers to inspect and warn persons who tour open house, except to parties, to events occurring after date of decision); Cogliati, supra, 92 N.J. at 417 (applying new rule extending liability of predecessor in title for maintenance of public sidewalks, except to parties, to accidents occurring after
date of decision "because of the additional element of insurance
involved in the predecessor-in-title framework").
Because of public policy and fairness, courts often have
applied a new rule of law to all pending and future cases. For
example, in Mirza v. Filmore Corp.,
92 N.J. 390, 400 (1983), we
announced a new rule -- that commercial landowners were
responsible for maintaining public sidewalks abutting their
property in reasonably good condition and were liable to
pedestrians injured as a result of their negligent failure to do
so. We applied that new rule to pending litigation and to
actions that were not instituted and were not barred by the
statute of limitations, because "on balance the reasons for
retroactivity tip the scales in its favor because an innocent
party who suffers serious injuries as a result of sidewalk
defects should not be left without measure." Id. at 397.
Similarly, in Ramirez v. Amsted Industries, Inc.,
86 N.J. 332
(1981), this Court, as a matter of public policy and fairness,
held that a new rule of strict products liability should be
applied to the litigants before the court and also to those
similarly situated plaintiffs whose claims were pending at the
time the Appellate Division announced the new rule. We reasoned
that although "there was a reasonable basis for reliance by
successor corporations and their insurance carriers" on the
former nonliability rule, the new rule "on balance and as a
matter of fundamental fairness" should be applied to similarly
situated plaintiffs. Id. at 357. We observed that "[t]here is a
basic justice in recognizing that persons who have exercised the
initiative to challenge the existing law should be accorded
relief if their claims-- not yet resolved when the new rule of
law is announced--are ultimately vindicated." Ibid. See also
Rutherford, supra, 99 N.J. at 28-29 (applying tenure rule
announced in Spiewak v. Rutherford Bd. of Educ.,
90 N.J. 63
(1982), on basis of fundamental fairness, to teachers who had
instituted action with Commissioner of Education based on right
to tenure prior to date of Spiewak decision because "[t]he
teachers in these actions were diligent in pursuing their claims
of tenure status" and "[h]ad these cases been heard before
Spiewak, the teachers here would presumably have been given the
benefit of our holding in that case").
Limited prospectivity is particularly appropriate where the
new rule of law does not create a new legal duty. In Jacober v.
St. Peter's Medical Center,
128 N.J. 475 (1992), this Court
adopted the Federal Rule of Evidence that permits the use of
learned treatises for substantive purposes. We stated that the
new rule was to be applied prospectively, except for that case.
Id. at 498. Two years later in Adamski v. Moss,
271 N.J. Super. 513 (App. Div. 1994), the Appellate Division examined the
prospective application of the Jacober rule. In Adamski, supra,
a medical malpractice plaintiff had her case dismissed for
failure to supply live expert testimony, despite her claim that
she was entitled to introduce medical texts in lieu of live
testimony pursuant to Jacober. The Appellate Division agreed
with the plaintiff's understanding of the meaning of the
prospectivity language in Jacober:
The rule in Jacober, and the substantially
equivalent N.J.R.E. 803(c)(18), applies to
the trial of cases, not to a commencement of
the cause of action. Prospective application
of the learned treatise rule, therefore,
refers to trials that take place after July
8, 1992, [the date Jacober was decided] not
to causes of actions arising after that date.
[Adamski, supra, 271 N.J. Super. at 518.]
Cf. Cogdell v. Hospital Center at Orange, ll
6 N.J. 7, 28 (l989)
(applying mandatory party-joinder rule prospectively and to all
cases not already on appeal because decision invoked Court's
"rulemaking, as well as [its] adjudicatory authority, [and
therefore] fairness to plaintiff and others similarly situated
impels us to follow the rule of prospectivity normally applied to
legislative pronouncements").
Applying the three critical factors -- public policy, reliance, and effect on the administration of justice -- it is evident that the first factor is pivotal in determining the degree of prospectivity that should attach to the Scafidi damage-apportionment rule in this case.
In Scafidi, supra, this Court declared:
[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
destroyed."
[119 N.J. at 112 (quoting King, Causation,
Valuation and Chance in Personal Injury Torts
Involving Preexisting Conditions and Factual
Consequences, 90 Yale L.J. l353, l355
(l981))].
Scafidi merely clarified what was implicit in Evers, namely, that
damage apportionment is an essential complement of Evers'
increased risk theory. Failure to apply the Scafidi rule to the
Evers' increased risk rule would be fundamentally unfair. The
Scafidi damage-apportionment rule was designed to correct the
unjust result of saddling a defendant physician with the costs of
injuries resulting from a preexisting condition. Principles of
fundamental fairness dictate that a physician's liability in a
medical malpractice action be limited to the value of lost chance
for recovery attributable to the physician's negligence.
Scafidi, supra, 119 N.J. at 112-13.
Moreover, the rule also "serves an important societal
interest in the context of medical-malpractice litigation. A
rule of law that more precisely confines physicians' liability
for negligence to the value of the interest damaged should have a
salutary effect on the cost and availability of medical care."
Id. at 113. A purely prospective application of the Scafidi
damage-apportionment rule would clearly frustrate the purpose of
that decision. It would violate both public policy and the
principle of fundamental fairness.
Although we acknowledged in Scafidi, supra, 119 N.J. at ll4,
that the damage-apportionment rule represented a significant
change in the law, we nonetheless agree with defendant that the
rule was foreshadowed by Fosgate and Evers. Apportionment of
damages was already a well settled principle of law applicable to
malpractice cases involving the aggravation of a preexisting
condition when Scafidi was decided. See Fosgate, supra; Evers,
supra. Therefore, Scafidi's application of that rule to
increased risk cases was not unexpected. Indeed in Evers, supra,
we anticipated what the appropriate measure of damages would be
in increased risk cases and we set forth the exact apportionment
rule we adopted in Scafidi:
One commentator suggests that the increased
risk need not be quantified in order to
calculate compensation for the loss of the
chance of surviving. King, Causation,
Valuation & Chance in Personal Injury Torts
Involving Preexisting Conditions and Future
Consequences, 90 Yale L.J. l353 (l98l). His
illustrations reveal, however, that the harm
for which he advocates redress is not the
increased risk per se, but rather a harm such
as death or bodily injury occasioned in part
by the increased risk. A patient who dies
from a heart attack, writes King, would have
a cause of action against the physician who
misdiagnosed the condition, even though the
patient would have had only a 40" chance of
survival with timely diagnosis. King would
award compensation equal to 40" of the value
of the victims life had he lived. Id. at
l382.
The Scafidi rule does not recognize a new cause of action or
eliminate a plaintiff's cause of action. It merely limits the
amount that a plaintiff can recover under his or her cause of
action. It does not abrogate any immunity or necessitate the
procurement of additional insurance. The Scafidi damage-apportionment rule does not cause persons to modify their
behavior in any significant manner. Generally, the element of
reliance is less important in tort law than in other areas of
law. Mirza, supra, 92 N.J. at 398. Justice Proctor wrote in
Darrow, supra, that "reliance has very little place in the field
of torts so far as it affects the negligence itself; persons do
not generally regulate their conduct because they will or will
not be liable in negligence." 58 N.J. at 415.
Retroactive application of the Scafidi rule would not be
unjust to plaintiff. Application of the damage-apportionment
rule does not upset any reliance interest and neither party can
show that they would be unfairly prejudiced by the application of
the rule. Applying the Scafidi damage-apportionment rule to
cases tried after the date of the Scafidi opinion would not
necessitate any retrials. Therefore, application of the Scafidi
rule comports with the third factor, administrative efficiency.
Weighing the three factors, we hold that the damage rule
announced in Scafidi on May, 24, 1990 should apply to cases tried
after the date of that opinion. The purpose of the Scafidi rule
is to limit a plaintiff's damages to the value of the lost chance
of recovery. To allow full recovery for all of plaintiff's
damages against a medical provider whose negligence caused
plaintiff only a lost chance of recovery is fundamentally unfair.
Scafidi's purpose was to restore a sense of fairness to lost-chance cases. A purely prospective application of Scafidi would
clearly frustrate that purpose.
Also at issue is whether the trial court erred in refusing to give the jury an ultimate outcome charge. See Roman v. Mitchell, 82 N.J. 336 (1980). Defendant does not contest the proposition that in cases governed by Scafidi an ultimate outcome charge is generally appropriate. Instead, he asserts that any error in not giving the charge was harmless. We disagree.
The primary justification for giving a jury an ultimate outcome charge is that it informs the jury about the impact of its decision. In Roman, supra, we stated "that a jury in a comparative negligence situation should be given an ultimate outcome charge so that its deliberations on percentages of negligence will not be had in a vacuum, or possibly based on a mistaken notion of how a statute operates." 82 N.J. at 345.
We emphasized that "a jury informed of the legal effects of its
findings . . . is better able to fulfill its fact finding
function." Id. at 345-46. See also State v. Mejia,
141 N.J. 475, 485 (1995) ("As we have repeatedly stated, trial courts
. . . must inform juries of the effect of their findings.")
(citations omitted); Campo v. Tama,
133 N.J. 123, 140 (1993) ("We
have always emphasized that juries must understand the import of
their findings.") (O'Hern, J., dissenting); Chavanne v. Clover
Financial Corp.,
206 N.J. Super. 72, 80-81 (App. Div. 1985)
(holding that ultimate outcome charge should be used to inform a
jury of fact that its award will be subject to court's control
until child reaches age of maturity); Dimogerondakis v.
Dimogerondakis,
197 N.J. Super. 518 (Law. Div. 1984) (holding
that ultimate outcome charge, which would inform jury that any
damages awarded to plaintiff in personal injury action would be
molded to reflect only that percentage of liability which jury
attributes to nonsettling defendant, was warranted).
In Scafidi, we acknowledged that the jury's verdict would be
molded by the trial court to reflect only the portion of the
damages that were attributable to defendant's negligence. We
explained:
Based on the evidence adduced, the jury will
be instructed to determine the likelihood, on
a percentage basis, that the [harm] would
have occurred even if defendant's treatment
was faultless. In the event of a jury
verdict against defendant on liability and
damages, the trial court will mold the
verdict to limit defendant's liability to the
value of the lost chance for recovery
attributable to defendant's negligence.
Recognizing the value of an ultimate outcome charge in lost-chance cases, the Supreme Court Committee on Model Jury Charges included such a charge in its suggested jury instructions for medical malpractice cases governed by Scafidi:
If you find that defendant has sustained his/her burden of proof, then you must determine based on the evidence what is the likelihood, on a percentage basis, that the plaintiff's ultimate injuries (condition) would have occurred even if defendant's treatment was proper.
When you are determining the amount of
damages to be awarded to the plaintiff, you
should award the total amount of damage.
Your award should not be reduced by your
allocation of harm. The adjustment in
damages which may be required will be
performed by the Court.
[New Jersey Model Jury Charges (Civil) (4th
ed. § 5.36E (emphasis added).]
Plaintiff requested that the trial court include an ultimate outcome charge in its instructions to the jury. Such a charge, plaintiff asserts, would have informed the jurors that they should award the full amount of damages and that the court would reduce that award by half. Plaintiff contends that an ultimate outcome charge was necessary because throughout the trial the jury heard testimony that, as of the date of the alleged
malpractice, Mrs. Fischer had a fifty percent chance of cure.
Plaintiff's counsel was concerned that the jury would likely
infer from this testimony that plaintiff's total damages equalled
half of what the total damages actually were. Because the court
refused to give the ultimate outcome charge, plaintiff contends
that the jury itself compromised its award to reflect the value
of the lost chance.
When the court charged the jury, it instructed the jurors on
several occasions that if they found the defendant(s) negligent,
they should award to plaintiff the full extent of damages.
Because the lost-chance percentage had been pre-determined, the
trial court rejected plaintiff's request for an ultimate outcome
charge. The court stated:
Since I am intending to charge the jury in
full as to their having to award the fullest
extent of damages that they find, I don't see
any benefit to be served by informing the
jury that once they do that I'm going to take
away half the verdict that they decide,
because the only natural outcome of that is
either that they will double the amount of
their award or they will misunderstand the
charge, and not understand why I'm saying
what I'm saying. And otherwise -- and I
don't see that it has any bearing on the jury
function. The jury function is to determine
the amount of damages which will fully and
fairly compensate the plaintiff. Not to be
informed that once they do that I'm going to
cut the award by 50 percent.
The Appellate Division, after holding that Scafidi did not
apply to this case, summarily rejected plaintiff's ultimate
outcome charge argument:
We assume that in a case to which Scafidi
measure of damages is applicable, the court
should give the jury an "ultimate outcome"
charge. See New Jersey Civil Model Jury
Charges (4th ed. 1992) § 5.36E. However, we
have determined that that measure of damages
is inapplicable to the present case. The
jury charge in this case, when read as a
whole, clearly instructs the jury to award
plaintiff the entire amount of damages to
which he is entitled. There is nothing about
the charge which supports plaintiff's
argument that it may have led the jury to
reduce Mrs. Fischer's compensation by half
before returning the verdict.
The value of an ultimate outcome charge in lost-chance cases
is that it informs the jurors of the effect of their causation
apportionment. The charge makes clear to jurors that they are to
award full damages, and the trial court will make any necessary
adjustments in light of their findings. Without the charge,
there is the risk that the jurors will reduce their damage award
in light of the apportionment of fault they find as part of their
verdict. Then, once the trial court makes the same reduction,
the plaintiff would receive an inadequate recovery. When a
Scafidi damage-apportionment rule is applicable, an ultimate
outcome charge generally should be given.
The trial court, in the exercise of its discretion, did not
give an ultimate outcome charge because it concluded that such a
charge would "tend to mislead or confuse the jury," because
"[t]hey don't have to reach a conclusion of what percent the
chance of survival was in this case." However, even though the
jury did not decide the percentage of lost chance of recovery, an
ultimate outcome charge would have clarified matters. It would
have explicitly separated in the jury's mind the fifty percent
stipulation from the damages award. Accordingly, we find that
the trial court erred by declining to provide an ultimate outcome
charge.
Reversible error, however, will not be found where the
charge, considered as a whole, adequately conveys the law and is
unlikely to confuse or mislead the jury, even though part of the
charge, standing alone, might be incorrect. Latta v. Caulfield,
79 N.J. 128, 135 (1979); Jurman v. Samuel Braen, Inc.,
47 N.J. 586, 592 (1966). The charge in this case generally conformed to
the model jury charge for increased risk cases. Throughout the
trial, the jury heard testimony that as of the date of the
alleged malpractice Mrs. Fischer had a fifty percent chance of
cure. The jurors were also instructed that, as a matter of law,
there was a fifty percent likelihood of the ultimate harm
occurring absent any negligence. Yet the court never explained
the impact of those facts on the plaintiff's ultimate recovery of
damage. The court never informed the jury that any award would
be reduced by the court to reflect the value of the lost chance.
We have examined the record carefully and conclude that that
omission was capable of misleading the jury. Under those
circumstances, the jury may have concluded that they were to
award half of the total damages suffered by decedent. An
ultimate outcome charge should have been given to prevent juror
confusion and the possibility that jurors carried the fifty
percent proximate cause figure over into their deliberations on
damages.
We reverse the judgment of the Appellate Division and remand the matter to the trial court for a new trial on damages only in accordance with this opinion.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN,
STEIN and COLEMAN join in JUSTICE GARIBALDI'S opinion.
NO. A-56/91 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
JERRY FISCHER, Administrator
and Administrator ad
Prosequendum of the Estate of
Rachel Fischer, deceased,
Plaintiff-Respondent
and Cross-Appellant,
v.
ARTHUR T. CANARIO, M.D.,
Defendant-Appellant
and Cross-Respondent,
and
NORMAN MAGID, M.D. and
JOHN DOES l through 5,
Defendants.
DECIDED January 30, 1996
Chief Justice Wilentz PRESIDING
OPINION BY Justice Garibaldi
CONCURRING OPINION BY
DISSENTING OPINION BY