SYLLABUS
(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).
Reynolds v. Mario D. Gonzalez, M.D. (A-9-01)
Argued February 25, 2002 -- Decided June 11, 2002
Stein, J., writing for a majority of the Court.
In this matter, the Court determines whether it should eliminate the substantial
factor test in increased-risk medical malpractice cases.
In September 1992, plaintiff sustained serious injuries to his left leg in a
dirt-bike accident. He was transported to the emergency room at Meadowlands Hospital in
Secaucus. The emergency room physician made an initial diagnosis of tibial plateau fracture
of the leg with possible compartment syndrome, a painful condition that occurs when
there is swelling inside an enclosed compartment in the body. Generally, if the
syndrome is suspected, the proper course of treatment is to check intracompartmental pressure
and perform a fasciotomy (an incision) to relieve the pressure.
Plaintiff's treating doctor at Meadowlands Hospital was Dr. Gonzalez ("defendant"). Two days after
plaintiff was admitted to the hospital, defendant operated on plaintiff's leg to repair
his fracture. After the surgery, plaintiff noticed that his foot was numb and
that he had some loss of control, an inability to flex the foot,
and a burning sensation. Approximately two weeks later, plaintiff was placed in a
leg cast and discharged. After two more weeks, defendant changed the cast because
plaintiff complained of pain. The pain persisted with the changed cast, however, and
plaintiff testified that he could not move his foot and it was flopping
around. Defendant removed the second cast in December 1992. At that time, plaintiff
was still unable to move his foot and it was numb with a
tingling sensation. Plaintiff had slight mobility in his toes, however.
Late in December 1992, plaintiff fell outside his residence. Defendant examined plaintiff's leg
and advised him that he needed additional surgery. Defendant sought a second opinion
at the University of Medicine and Dentistry of New Jersey (UMDNJ). When UMDNJ
accepted him as a patient, plaintiff's foot was paralyzed and curled. The surgeons
at UMDNJ inserted a rod from the lower leg to the foot to
keep the foot flat. Plaintiff sought further treatment in August 1994 when he
became a patient at the Hospital for Special Surgery in New York. There,
surgeons operated on plaintiff's foot, resulting in the fusion of the foot into
a permanent 90-degree angle. Plaintiff testified that he suffers from excruciating pain, loss
of sensation and a severely affected gait.
In September 1994, plaintiff filed a medical malpractice action against defendant. The case
was tried twice to a jury. Plaintiff argued at both trials that defendant
was negligent for failing to properly monitor him for compartment syndrome, for failing
to perform intracompartmental pressure measurements, and in casting the fractured leg when the
compartment pressures were elevated. In addition, he argued that the nerve damage he
sustained that resulted in his paralysis developed because of the undiagnosed and untreated
compartment syndrome. Defendant argued that plaintiff did not have compartment syndrome while under
his care and that the foot problems were caused by nerve damage sustained
in the dirt-bike accident. Defendant explained also that it was his normal practice
to perform a fasciotomy immediately when he suspected compartment syndrome, rather than to
rely on diagnostic tests to confirm or rule it out. Both juries determined
that defendant deviated from accepted standards of medical care by failing to test
for compartment syndrome and that the deviation increased the risk of ultimate harm.
However, both juries also concluded that the increased risk was not a substantial
factor in producing plaintiff's paralysis and related complications. Following the first trial, the
court granted plaintiff's motion for a new trial, concluding that the testimony of
defendant and his expert either had misled or confused the jury. After the
second trial, plaintiff filed a second motion for a new trial, and the
trial court denied the motion without opinion.
Before the Appellate Division, plaintiff argued that the substantial factor test should be
abolished or modified because it is confusing and misleading. The Appellate Division affirmed
the denial of plaintiff's motion for a new trial, observing that it had
no authority to modify or eliminate the substantial factor test.
HELD : In a medical malpractice case involving a claim that the negligence increased
the risk of harm posed by a pre-existing condition, the Court reaffirms the
need for a plaintiff to prove that the increased risk was a substantial
factor in causing the ultimate harm.
1. New Jersey courts apply the substantial factor test in medical malpractice cases
involving preexisting conditions. The first inquiry in the substantial factor analysis is whether
there is evidence demonstrating, within a reasonable degree of medical probability, that negligent
treatment increased the risk of harm posed by a preexistent condition. Once that
requirement has been satisfied, the jury must determine whether the increased risk was
a substantial factor in causing the ultimate harm. If the jury determines that
the plaintiff has satisfied the two-prong inquiry, it next must address the appropriate
apportionment of damages. The damages awarded should be adjusted to reflect the extent
to which the ultimate result would have occurred in the absence of defendant's
negligence or solely by virtue of a preexistent condition. (Pp. 15 to 21).
2. The issue of a defendant's liability cannot be presented to the jury
simply because there is some evidence of negligence. There must be evidence or
reasonable inferences therefrom showing a proximate causal relation between defendant's negligence, if found
by the jury, and the resulting injury. This Court has found that the
application of a standard of causation that is more flexible than that used
in conventional tort claims is appropriate in medical malpractice cases involving preexistent conditions.
The two-prong increased risk, substantial factor test was adopted to address a plaintiff's
different burden of proof because of the inapplicability of "but for" causation. The
facts of this case illustrate the soundness of the two-part test. The Court
rejects plaintiff's argument that the test is unnecessary. (Pp. 21 to 25).
3. Here, however, the jury's verdict may have resulted from some confusion about
plaintiff's burden under the substantial factor causation test. The Court is persuaded that
a clearer instruction on the substantial factor test would have been preferable, and
remands for a new trial in this case with a modified substantial factor
charge explaining to the jury the legal significance of the word "substantial." The
Court refers the issue to the Committee on Model Civil Jury Charges, recommending
modification of the substantial factor test in increased-risk medical malpractice cases and in
the general instructions on proximate cause. Pending such modification, the Court instructs the
trial court about explanations that it must provide to the jury on remand.
(Pp. 25 to 28).
4. The trial court's failure to tailor its instructions to the theories and
facts presented in this case also supports a remand for a new trial.
Specifically, there was an absence of any explanation about plaintiff's burden of proving
an increased risk based on defendant's failure to test for compartment syndrome. The
jury may have determined that defendant's failure to perform the required diagnostic tests
insulated him from liability. (Pp. 29-31).
5. Finally, there was a complete lack of any cross-reference in the jury
charge on the law to the underlying evidence and plaintiff's theory of recovery.
No attempt was made to relate the legal principles to the underlying factual
allegations or to the parties' respective contentions. While not an independent source of
reversible error, the abstractness of the trial court's instruction on the law increases
the Court's concern that the second jury may not have understood adequately how
to apply the legal principles that were to guide its decision. (Pp. 32-33).
The judgment of the Appellate Division is REVERSED and the matter is remanded
to the Law Division for a new trial.
JUSTICES VERNIERO and LaVECCHIA, concurring in part, dissenting in part, concur in that
part of the Court's opinion modifying the instruction on substantial factor causation in
increased risk cases, but do not believe that a third trial is warranted
in this case.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG and ZAZZALI join in JUSTICE STEIN's
opinion. JUSTICES VERNIERO and LaVECCHIA filed a separate opinion concurring in part and
dissenting in part.
SUPREME COURT OF NEW JERSEY
A-
9 September Term 2001
FRANK REYNOLDS,
Plaintiff-Appellant,
v.
MARIO D. GONZALEZ, M.D., a licensed physician of the State of New Jersey,
Defendant-Respondent,
and
MEADOWLANDS HOSPITAL MEDICAL CENTER, a Hospital Corporation of the State of New Jersey,
its servants, agents or employees, JOHN DOE AND MARY ROE #1-5 (fictitious names
intending to designate nurses and health care professionals who participated in the care,
management, post surgical management and care of Plaintiff), and each of them jointly,
severally or in the alternative,
Defendants.
Argued February 25, 2002 – Decided June 11, 2002
On certification to the Superior Court, Appellate Division.
Douglas D. Burgess argued the cause for appellant (Cary & Icaza, attorneys; Robert
R. Cary, on the brief).
Judith A. Wahrenberger argued the cause for respondent (Wahrenberger & O'Brien, attorneys).
E. Drew Britcher argued the cause for amicus curiae, Association of Trial Lawyers-New
Jersey (Britcher, Leone & Roth, attorneys).
The opinion of the Court was delivered by
STEIN, J.
In this appeal, plaintiff contends that the Court should eliminate the “substantial factor”
test in increased-risk medical malpractice cases. See Scafidi v. Seiler,
119 N.J. 93
(1990); Evers v. Dollinger,
95 N.J. 399 (1984). We decline to do so.
Instead, we modify the instructions on substantial factor causation in increased-risk cases to
clarify plaintiff’s burden of proof.
I
A
On September 19, 1992, plaintiff, who was then twenty-seven years old, sustained serious
injuries to his left leg in a dirt-bike accident. Following his accident, plaintiff
was transported to the emergency room at Meadowlands Hospital in Secaucus. An emergency
room physician made an initial diagnosis of tibial plateau fracture of the left
leg with a possibility of compartment syndrome.
(See footnote 1)
Defendant was plaintiff’s treating doctor at Meadowlands Hospital. During the initial physical examination
on September 19, 1992, defendant observed that plaintiff had a “[s]evere[ly] crushed fracture
of the left tibial plateau with severe peroneal injury” (referring to the peroneal
nerve). He also observed that plaintiff could not dorsiflex (raise) his toes or
ankle. However, a podiatric resident under defendant’s supervision wrote in his September 19,
1992 notes that plaintiff had positive sensation and good range of motion (ROM)
and that plaintiff was complaining that his toes were numb. In addition, he
noted that defendant was notified of his findings.
On September 20, 1992, the resident again observed that plaintiff had positive ROM
and sensation in all digits on the left foot. Defendant subsequently changed the
positive ROM notation to read “PROM,” indicating that plaintiff had only passive ROM.
On September 21, 1992, two days after plaintiff was admitted to the hospital,
defendant operated on plaintiff’s leg for eight hours to repair his tibial plateau
fracture. On September 22, 1992, the resident indicated that plaintiff had positive ROM
and positive sensation but that plaintiff was complaining “of a lot of pain.”
On September 23, 1992, a second podiatric resident under defendant’s supervision noted that
plaintiff “ha[d] some numbness in [his left] foot but ha[d] good ROM.” Defendant
subsequently added the word “possible” to the notation to indicate that plaintiff possibly
had good ROM. On September 29, 1992, one of the podiatric residents again
noted that plaintiff had positive sensation and positive ROM in all digits on
his left foot. Defendant once more changed the notation to read PROM.
Defendant placed his initials next to each altered notation to indicate that he
had made the changes. He explained that although plaintiff was able to flex
the joints in his left foot, he could not flex them beyond the
neutral point at which a patient’s movement correctly can be labeled “active.”
Plaintiff testified that immediately after the surgery he noticed that his foot was
numb and he had some loss of control, including an inability to plantar
flex (depress the foot on extension) and dorsiflex. He also testified that he
experienced a burning sensation on top of his foot. He testified further that
defendant had been informed of those symptoms.
Plaintiff was placed in a leg cast and discharged on October 5, 1992.
Defendant changed the first cast at plaintiff’s insistence approximately two weeks after plaintiff
was discharged. Plaintiff testified that he requested that defendant change the cast because
it was painful and it made him feel like he “was climbing the
walls.” Plaintiff also testified that the pain remained even after the first cast
was removed. He added that he could not move his foot up, down
or sideways and it was “flopping around.” However, he added that he could
move his toes slightly.
After defendant removed the first cast, plaintiff’s left leg was placed in a
second cast. Defendant removed plaintiff’s second cast in December 1992. Plaintiff testified that
after the second cast was removed he still was unable to move his
foot and it was numb with a tingling sensation. However, plaintiff further testified
that he still had slight mobility in his toes.
On December 28, 1992, plaintiff fell outside his residence. Plaintiff was scheduled for
a follow-up visit with defendant on the following day and waited until that
appointment to have defendant examine his leg. Defendant indicated to plaintiff during the
scheduled visit that additional surgery was necessary because he had “destroyed” the leg
during the fall. Shortly thereafter, plaintiff left defendant’s care seeking a second opinion
about the condition of his foot following his fall.
Plaintiff visited three different doctors but those doctors declined to accept him as
a new patient. The University of Medicine and Dentistry of New Jersey (UMDNJ)
subsequently accepted plaintiff as a patient in January 1993. Plaintiff testified that when
he first was accepted as a patient, his foot was “[l]ocked in,” paralyzed
and “curled.”
Plaintiff was a patient at UMDNJ until October 1993. The surgeons at UMDNJ
operated on plaintiff’s foot to correct the curling. The operation involved the insertion
of a rod from the lower leg to the foot to keep the
foot flat. The presence of the rod in the foot subsequently caused several
problems requiring the removal and reinsertion of the rod on at least one
occasion.
Plaintiff thereafter left UMDNJ seeking another opinion because his treating doctor indicated that
he was not a candidate for knee replacement surgery, and his leg would
have to be fused into a straight position by the insertion of a
rod from his hip to his ankle. Plaintiff sought further treatment for his
foot and knee in August 1994 when he became a patient at the
Hospital for Special Surgery (HSS) in New York. The surgeons at HSS operated
on plaintiff’s foot, resulting in the fusion of the left foot into a
permanent 90-degree angle.
Plaintiff has been in the hospital approximately fifteen times since his accident. With
regard to his foot, plaintiff testified that he suffers from excruciating pain, loss
of sensation and a severely affected gait.
In September 1994, plaintiff filed a medical malpractice claim against defendant.
(See footnote 2) The case
was tried twice to a jury. Plaintiff argued at both trials that defendant
was negligent for failing to properly monitor him for compartment syndrome, not performing
intracompartmental pressure measurements, and by casting the fractured leg when the compartment pressures
were elevated. In addition, he argued that the nerve damage that he sustained
resulting in his paralysis and related complications developed because of the undiagnosed and
untreated compartment syndrome. Contrarily, defendant argued that plaintiff did not have compartment syndrome
while under his care and that plaintiff’s foot problems were caused by the
peroneal nerve damage sustained in the dirt-biking accident. He also explained that it
was his normal practice to perform a fasciotomy immediately when he suspected compartment
syndrome, rather than to rely on diagnostic tests to confirm or rule out
compartment syndrome.
Both juries determined that defendant deviated from accepted standards of medical care by
failing to test for compartment syndrome and that the deviation increased the risk
of the ultimate harm. However, both juries also concluded that the increased risk
was not a substantial factor in producing plaintiff’s paralysis and related complications.
Following the first trial, the court granted plaintiff’s motion for a new trial,
concluding ultimately that the testimony of defendant and his expert either had misled
or confused the jury. The trial court noted that defendant did not seem
to know the proper test for compartment syndrome and that the record supported
plaintiff’s allegation that compartment syndrome contributed to his injuries. Although the court conceded
that some of plaintiff’s malfunction could be attributed to the peroneal nerve damage,
which defendant alleged plaintiff sustained in the initial accident, it found that the
medical records indicated that plaintiff retained good motor and sensory function after the
surgery. That led it to conclude that the “jury’s finding . . .
that the initial trauma caused the death of all . . . [the
nerves] was clearly and obviously a mistake.” In addition, the court determined that
the jury may have been misled about plaintiff’s complaints of pain because defendant
“down-play[ed] the significance of pain medication” that plaintiff was taking.
After the second trial, plaintiff filed a second motion for a new trial.
The trial court denied the motion without opinion. Before the Appellate Division, plaintiff
argued that the substantial factor test should be abolished or modified because it
was confusing and misleading, and that defendant should bear the burden of proving
that his failure to test for compartment syndrome was not a substantial factor
in the ultimate result. In a per curiam opinion, the Appellate Division affirmed
the denial of plaintiff’s motion for a new trial, observing that it had
no authority to modify or eliminate the substantial factor test. Thereafter, this Court
granted plaintiff’s petition for certification. Reynolds v. Gonzalez,
170 N.J. 84 (2001).
B
Defendant’s position during both trials was that plaintiff’s foot problems were the result
of the peroneal nerve injury sustained in the initial accident. Defendant explained to
both juries that compartment syndrome is not normally associated with a tibial plateau
fracture. Moreover, he explained that plaintiff did not exhibit localized or intense pain,
necrotic muscles, a pale pallor, or pulselessness in the injured area to indicate
the presence of compartment syndrome. In addition, plaintiff had decreasing levels of creatine
kinase (CPK or CK) and lactic dehydrogenase (LDH), enzymes that might indicate muscle
or tissue damage when there are elevated levels in the blood. He also
attributed plaintiff’s footdrop
(See footnote 3) condition to the initial biking accident when he sustained injury
to his peroneal nerve. Although defendant maintained that plaintiff did not have compartment
syndrome, he agreed that plaintiff had exhibited some signs common both to a
diagnosis of peroneal nerve injury and compartment syndrome.
Defendant apparently testified during his pretrial deposition that a Doppler device could be
used to measure compartment pressure. However, at trial he explained that he uses
a Doppler device to measure arterial pressure, not compartment pressure as he had
stated during his deposition. Defendant further clarified that, contrary to his deposition statements,
he knew that there were different methods for measuring intracompartmental pressure, such as
introducing a needle or catheter into the compartment. However, he explained that he
does not use those methods, having learned from personal experience that intracompartmental pressure
measuring devices are unreliable, often failing to show increased compartment pressure even though
the patient actually has compartment syndrome.
Dr. Stuart Hirsch:
Dr. Harvey Sicherman testified on behalf of defendant at his first trial, offering
testimony largely duplicated by Dr. Hirsch, defendant’s expert at his second trial. Accordingly,
we summarize only Dr. Hirch’s testimony offered during defendant’s second trial. Dr. Hirsch
testified that plaintiff did not have compartment syndrome at any time while under
defendant’s care. Significantly, he noted that plaintiff was “increasingly comfortable” following surgery, and
physical therapists, nurses, defendant and defendant’s staff regularly examined him without indicating any
findings of compartment syndrome. Moreover, he noted that plaintiff positively responded to pain
medications and, in fact, requested at one point to be taken off patient-controlled
analgesia and put on oral medication. He also explained that plaintiff’s complaint of
pain on stretching of the calf muscles was consistent with the presence of
scar tissue and inconsistent with a finding of compartment syndrome because compartment syndrome
develops “primarily [in] the extensors to the toes,” not in the muscles.
Dr. Hirsh also expressed the view that plaintiff probably never had active range
of motion in his toes or foot following the accident. He explained that
what was described in plaintiff’s medical record as active range of motion probably
was a reflexive response. He concluded that this lack of active range of
motion was consistent with a peroneal nerve deficit.
Additionally, Dr. Hirsch observed that when plaintiff was discharged he had decreasing CPK
and LDH levels, which were inconsistent with a diagnosis of compartment syndrome. He
also stated that experienced physicians treat an intracompartmental measuring device simply as another
diagnostic tool. Thus, he concluded that it was not a departure from the
medically accepted standard of care for defendant to fail to measure plaintiff’s compartment
pressure by using an intracompartmental pressure-measuring device.
Dr. David Lehrman:
Both juries viewed the videotaped deposition of Dr. Lehrman, plaintiff’s expert witness. Because
peroneal nerve injury was mentioned only when plaintiff first was admitted to the
hospital, Dr. Lehrman stated that it was doubtful that there was any peroneal
nerve damage sustained in the initial dirt-biking accident. He explained that “nerves [do
not] heal that fast” and that if plaintiff “had a true peroneal palsy
or a nerve injury, it would be unlikely that he would be able
to have normal movement two or three days after that.” He further explained
that if plaintiff had sustained a peroneal nerve injury in the accident, during
the first three days of hospitalization the treating physicians probably would have observed
a dropped-foot deformity, an inability to raise the foot, weakness, or numbness.
Dr. Lehrman opined that the reason plaintiff could not dorsiflex his toes when
defendant first examined him on September 19, 1992 was because it was too
painful for plaintiff to do so and not because he was unable to
do so. Moreover, defendant should have suspected compartment syndrome because of plaintiff’s complaints
of pain, numbness, diminished strength and diminished range of motion just three days
after the operation. However, he conceded that the fact that plaintiff was unable
to dorsiflex his ankle and toes after the cast was removed could have
reflected either an injury to the peroneal nerve or compartment syndrome.
Dr. Lehrman was of the opinion that plaintiff demonstrated four major signs of
compartment syndrome, including pain, paresthesia, motor loss, and pain during passive stretching. He
opined that plaintiff probably developed a mild compartment syndrome when a tourniquet was
applied or when a facial closure was performed during the surgery. He also
opined that the mild compartment syndrome was exacerbated when defendant applied the cast
to plaintiff’s leg. Dr. Lehrman further noted that as a result of the
compartment syndrome, plaintiff sustained multiple nerve injuries, including injury to the peroneal, tibial,
sural and saphenous nerves, which control sensory and motor functions in the lower
leg. He concluded that defendant deviated from the accepted medical standard of care
by failing to diagnose compartment syndrome and by casting the leg when compartment
syndrome was indicated.
On cross-examination, Dr. Lehrman agreed that tibial plateau fractures typically are not associated
with compartment syndrome. In addition, Dr. Lehrman conceded that the type of injury
plaintiff suffered could result from a peroneal nerve injury. Dr. Lehrman also agreed
that, contrary to his trial testimony, he had concluded during his first deposition
that plaintiff developed compartment syndrome from the initial injury and not post-operatively. He
also agreed that he had not concluded during his first deposition that defendant
had departed from the standard of care by casting plaintiff after the operation.
Dr. Geoffrey Westrich:
The videotaped deposition of Dr. Westrich, plaintiff’s current treating doctor, also was viewed
by the jurors. Plaintiff met Dr. Westrich while Dr. Westrich was finishing his
residency training at HSS in Manhattan. Dr. Westrich opined, based on his physical
examination of plaintiff and based on the records from HSS, that plaintiff’s foot
problems were the result of compartment syndrome. However, he could not conclude absolutely
that the problems were caused by compartment syndrome because, as he explained:
I wasn’t the treating doctor at the time. I did not see [plaintiff]
when he showed up in the emergency room after his injury. I wasn’t
the person that treated his fracture and put him in a cast afterwards.
. . . I haven’t seen any of the records from his emergency
room admission or other surgery, and I haven’t reviewed any of the X-rays
from his original fracture.
II
New Jersey courts apply the substantial factor test in medical malpractice cases involving
preexisting conditions. Scott v. Salem County Memorial Hospital,
116 N.J. Super. 29 (App.
Div. 1971), involved perhaps the first application of a reduced burden of proof
of causation in a case involving a preexisting condition exacerbated by medical negligence.
In Scott, the plaintiff’s right leg was amputated below the knee after she
developed gangrene because of a cast that was applied too tightly. Following a
jury trial, the trial court entered a judgment of no cause of action
for the doctors and a judgment for the plaintiff against the hospital. The
Appellate Division reversed, ordering a new trial because the trial court failed to
include instructions on concurrent negligence. The court stated:
“The law of negligence recognizes that there may be two or more concurrent
and directly cooperative and efficient proximate causes of injury.” . . . Nevertheless,
these acts need not, of themselves, be capable of producing the injury; it
is enough if they are a “substantial factor” in bringing it about.
[Id. at 33-34 (citations omitted).]
In Evers, supra,
95 N.J. 399, the Court articulated the substantial factor test
in increased-risk cases. There, plaintiff filed a medical malpractice claim alleging that defendant’s
delay in diagnosing her breast cancer “caused both physical and emotional injury” and
that the delay “enhanced the risk that the cancer would recur, requiring additional
hospital and medical care.” Id. at 404. Plaintiff’s cancer was not diagnosed until
approximately seven months after defendant first indicated to plaintiff that she should not
be concerned about the “very tiny” lump in her right breast. The spread
of plaintiff’s cancer resulted in a right extended mastectomy. Id. at 403. The
trial court granted defendant’s motion for summary judgment after refusing to admit into
evidence the plaintiff’s experts’ testimony because the experts “were unable to quantify the
increased risk of recurrence of cancer.” Id. at 405. The Appellate Division affirmed.
This Court discussed several decisions by the Pennsylvania Supreme Court recognizing that “the
difficulties of identifying, defining, and proving injury in certain types of medical malpractice
cases justifies the application of a standard of causation that is more flexible
than that used in conventional tort claims.” Id. at 413 (citing Jones v.
Montefiore Hosp.,
494 Pa. 410 (1981); Gradel v. Inouye,
491 Pa. 534 (1980);
Hamil v. Bashline,
481 Pa. 256 (1978)). Applying the rationale underlying those decisions,
we reversed and remanded, holding that the plaintiff had sustained an injury sufficient
to withstand a motion for summary judgment merely by showing that there was
an increased risk and “that such increased risk was a substantial factor in
producing the condition from which plaintiff currently suffers.” Id. at 417.
Whether “the unquantified (and unquantifiable) but nevertheless certain increase in the risk, standing
alone,” id. at 406, was actionable was a question that the Court declined
to answer in Evers, supra, 95 N.J. at 412-13 n.7. In Ayers v.
Jackson Township,
106 N.J. 557, 597 (1987), the Court confronted the issue but
declined to recognize a cause of action under the New Jersey Tort Claims
Act, N.J.S.A. 59:1-1 to 12-3, to allow recovery for unquantified enhanced risk of
disease. We stated that “[i]t is the highly contingent and speculative quality of
an unquantified claim based on enhanced risk that renders it novel and difficult
to manage and resolve.” Ibid. In a case involving a claim against a
private entity for enhanced risk of disease, the Court clarified that the determination
whether to allow recovery depends on the claimant’s proof that the prospective disease
is reasonably probable to occur. Mauro v. Raymark Indus.,
116 N.J. 126, 142-43
(1989).
In Scafidi, supra,
119 N.J. 93, the Court fully analyzed the relationship between
a pre-existing condition and proximate causation in increased-risk medical malpractice cases. The plaintiff
in Scafidi alleged that defendant’s failure to properly treat and arrest her early
labor was the proximate cause of the premature birth and death of her
child. Scafidi, supra, 119 N.J. at 96. The trial court refused to give
an Evers charge to the effect that if defendant’s negligent conduct increased the
risk of the premature birth and death, then damages should be awarded on
a finding by the jury that the increased risk was a substantial factor
in causing the damages. Id. at 97. The trial court also declined to
give a Fosgate v. Corona,
66 N.J. 268, 272-73 (1974), charge that the
defendant had the burden of proving that damages “are capable of some reasonable
apportionment” to reflect the likelihood that plaintiff’s preexisting condition was independently responsible for
the premature birth and death. The Appellate Division held that it was error
to refuse to give the Evers charge, but sustained the trial court’s refusal
to instruct the jury that defendant had the burden of proving that the
damages could be apportioned. Scafidi, supra, 119 N.J. at 97. We affirmed the
Appellate Division’s judgment but ordered that “any damages awarded to plaintiffs on retrial
. . . should be apportioned to reflect the likelihood that the premature
birth and death would have been avoided by proper treatment.” Ibid. Thus, the
Court limited damages “to the value of the lost chance of recovery attributable
to defendant’s negligence.” Ibid.
We explained that the first inquiry in the substantial factor analysis is whether
there is evidence “demonstrating within a reasonable degree of medical probability that negligent
treatment increased the risk of harm posed by a preexistent condition.” Id. at
108. Once that requirement has been satisfied, the jury next must determine whether
the increased risk was a substantial factor in causing the ultimate harm. Id.
at 109. The jury is required to perform “the ‘substantial factor’ test of
causation because of the inapplicability of ‘but for’ causation to cases where the
harm is produced by concurrent causes.” Ibid. The Court stated that 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.” Id. at 109.
Once the jury determines that the plaintiff has satisfied the two-prong inquiry, it
next must address the appropriate apportionment of damages. The determination whether a Fosgate
charge is applicable and, if so, of the party that has the burden
of proof on the issue of apportionment of damages depends on whether “defendant’s
liability for damages is capable of any apportionment.” Id. at 111.
The Court stated that “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.” Id.
at 112. It further explained that it was a “self-evident principle of tort
law that valuation of allowable damages ‘is animated by a premise similar to
that underlying causation: that a tortfeasor should be charged only with the value
of the interest he destroyed.’” Ibid (citations omitted). Hence, the damage awarded should
be adjusted to reflect the extent to which the ultimate result would have
occurred in the absence of defendant’s negligence or “solely by virtue of a
preexistent condition.” Ibid.
We explained in Scafidi, supra, 119 N.J. at 109, that what is “sufficiently
significant in relation to the eventual harm to satisfy the requirement of proximate
cause” is a jury determination. Trial courts presiding over increased-risk medical malpractice cases
often refer to Model Jury Charge 5.36E when instructing juries on the causation
issue. In relevant part, the model jury charge explains that “[i]f the negligent
act was itself too remotely or insignificantly related to the ultimate result, then,
in a legal sense, such negligent act does not constitute a substantial factor.”
As in this case, trial courts rarely elaborate on that instruction.
III
A
One of the underlying principles of tort law is that “an actor's conduct
must not only be tortious in character but it must also be a
legal cause of the invasion of another's interest.” Restatement (Second) of Torts §9
cmt. a (1965) (Restatement). It follows from that principle that the issue of
a defendant’s liability cannot be presented to the jury simply because there is
some evidence of negligence. “There must be evidence or reasonable inferences therefrom showing
a proximate causal relation between defendant's negligence, if found by the jury,” and
the resulting injury. Germann v. Matriss,
55 N.J. 193, 205 (1970).
Similarly, Prosser and Keeton on the Law of Torts states that
[t]he plaintiff must introduce evidence which affords a reasonable basis for the conclusion
that it is more likely than not that the conduct of the defendant
was a cause in fact of the result. A mere possibility of such
causation is not enough; and when the matter remains one of pure speculation
or conjecture, or the probabilities are at best evenly balanced, it becomes the
duty of the court to direct a verdict for the defendant.
[W. Page Keeton et. al., Prosser & Keeton on the Law of Torts,
§41, at 269 (5th ed. 1984) (Prosser & Keeton).]
Thus, absent “proof of cause, there is no connection between the injury complained
of and the fault of anyone.” J.D. Lee & Barry A. Lindahl, Modern
Tort Law: Liability and Litigation, §4.01, 127 (rev. ed. 2000).
In Evers, this Court agreed that “the application of a standard of causation
that is more flexible than that used in conventional tort claims” was appropriate
in medical malpractice cases involving preexistent conditions. 95 N.J. at 413. The Court
observed in Scafidi that
[i]n the routine case in which the plaintiff's injury can be traced to
a single cause, the standard instruction on proximate cause--and the one used by
the trial court in this case--describes it as "a cause which necessarily set
the other causes in motion and was a substantial factor in bringing the
accident about . . . ," and further as a "cause which naturally
and probably led to and might have been expected to produce the accident
complained of.”
[119 N.J. at 101 (quoting Model
Jury Charges (Civil) § 7.11 (1999).]
Consistent with our decision in Evers, we also noted that
in cases in which the defendant's negligence combines with a preexistent condition to
cause an injury, the standard charge on proximate cause could confuse or mislead
a jury. The language of the standard charge assumes that the defendant's negligence
began a chain of events leading to the plaintiff's injury. If a plaintiff
has a preexistent injury or disability and is then adversely affected by a
defendant's negligence, the standard by which the jury evaluates causation must be expressed
in terms consistent with the operative facts.
[Id. at 102 (emphasis added).]
In Scafidi we specifically adopted the two-prong increased risk, substantial factor test for
medical malpractice cases involving preexistent conditions. We explained that the substantial factor test
was necessary to address a plaintiff’s different burden of proof because of the
inapplicability of “but for” causation. We stated:
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. . . . 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.
. . . 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.
[Scafidi, supra, 119 N.J. at 108-09 (citations omitted).]
Plaintiff asserts that the substantial factor test, in addition to being confusing, is
unnecessary in light of our decision in Fosgate, supra, limiting a plaintiff’s recovery
to that portion of the harm caused by a defendant’s negligence. 66 N.J.
at 272-73. According to plaintiff, the jury should be allowed to apportion damages
once it determines that a defendant’s negligence has increased the risk of harm
posed by the preexisting condition. We reject that contention because plaintiff’s formulation dispenses
with the need for proof of any causal connection between defendant’s negligence and
the resultant harm.
The facts of this case illustrate the soundness of the two-part substantial factor
test. The jury determined that the failure to test increased the risk of
harm because the symptoms plaintiff exhibited made it medically appropriate to perform the
intracompartmental tests. Even accepting that finding, the next inquiry was whether the failure
to test was a factor in causing plaintiff’s ultimate injury. If, as defendant
contends, there was no compartment syndrome, then defendant’s failure to test — although a
deviation from accepted medical standards — would not have contributed at all to plaintiff’s
injury and thus would not have satisfied the substantial factor test. Accordingly, we
reject plaintiff’s argument that the substantial factor test is unnecessary.
B
The record before us does not inspire confidence in the second jury’s verdict.
Defense counsel suggested to the second jury during summation that if it found
that compartment syndrome was not present, then there was no deviation from the
accepted medical standard of care. On that issue, the jury answered affirmatively that
defendant deviated from accepted medical standards, suggesting that, at the very least, there
was a sufficient symptomatic basis to require defendant to test for compartment syndrome.
During his summation, plaintiff’s counsel requested that the jury find that the increased
risk resulting from defendant’s deviation was a substantial factor in causing plaintiff’s injury
even if the deviation was not the triggering event, as long as it
was not too remote or unimportant in relation to the ultimate result. Although
the jury’s verdict suggests that the jury believed plaintiff had symptoms consistent with
undiagnosed and untreated compartment syndrome, and that it perhaps determined that plaintiff did
not sustain all his nerve injury during the initial accident as defendant asserted,
it also indicates that the jury determined that the failure to test for
compartment syndrome was not a substantial factor in producing plaintiff’s foot drop condition
and related complications.
In Battenfeld v. Gregory,
247 N.J. Super. 538, 548 (1991), the Appellate Division,
citing Prosser and Keeton, stated that “[w]e are satisfied that the phrase ‘substantial
factor’ is sufficiently intelligible to furnish adequate guidance and instruction to the jury
and that it is neither possible nor desirable to reduce it to percentage
terms.” (Emphasis added). A more recent edition of Prosser and Keeton states that
“if ‘substantial factor’ seemed sufficiently intelligible as a guide in time past, []
the development of several quite distinct and conflicting meanings for the term ‘substantial
factor’ has created risk of confusion and misunderstanding, especially when a court, or
an advocate or a scholar, uses the phrase without explicit indication of which
of the conflicting meanings is intended.” Prosser & Keeton, supra, § 41, at 43
(Supp. 1988). See also Richard L. Rosenzweig, “Substantial Factor:” Plaintiff’s Everest, 146 Pittsburgh
Legal J. 35, 35 (1998) (suggesting that the term “’substantial’ is Everest-like in
its implications, and the definition, which is a far less precipitous burden, is
[] incomprehensible to jurors” because of “the imposing connotations of the words ‘substantial
factor’”); Diane Schmauder, An Analysis of New Jersey’s Increased Risk Doctrine,
25 Rutgers
L.J. 893, 900 (1994)(stating that “most courts do not guide the jury in
determining what constitutes a ‘substantial’ factor” and that the result is that “a
defendant can be held liable for a plaintiff’s injury even when the jury
finds that there is only a remote probability that the conduct actually contributed
to the injury”).
Based on the record before us, and noting the first trial judge’s concern
about the possibility of juror confusion, we reasonably can infer that the jury’s
verdict may have resulted from some confusion about plaintiff’s burden under the substantial
factor causation test. We are persuaded that a clearer instruction on the substantial
factor test would have been preferable. Because we remand for a new trial
in this case, a modified substantial factor charge explaining the legal significance of
the word “substantial” should be given to the jury on retrial.
We refer the issue to the Committee on Model Civil Jury charges, recommending
modification of the substantial factor test in increased-risk medical malpractice cases and in
the general instructions on proximate cause. See Model Jury Charge 5.36E and 7.11.
Pending such modification, the trial court on remand should explain to the jury
that a defendant’s deviation need not be the only cause, nor a primary
cause, for the deviation to be a substantial factor in producing the ultimate
result. However, defendant’s negligent conduct cannot be a remote or an inconsequential contributing
factor. It must play a role that is both relevant and significant in
bringing about the ultimate injury. The relative weight of an increased risk that
is found to constitute a substantial factor can be reflected by the jury
in the apportionment of damages between the increased risk and the pre-existing condition.
The trial court also should explain to the jury that
[s]ome other event [that] is a contributing factor in producing the harm may
have such a predominant effect in bringing it about as to make the
effect of the actor’s negligence insignificant and, therefore, to prevent it from being
a substantial factor.
[Restatement §433 cmt. d.]
C
The trial court’s failure to tailor its instructions to the theories and facts
presented in this case also supports a remand for a new trial. Velazquez
v. Portadin,
163 N.J. 677 (2000); Das v. Thani, __ N.J. __ (2002).
“Appropriate and proper charges to a jury are essential for a fair trial.”
State v. Green,
86 N.J. 281, 287 (1981). “Jury charges ‘must outline the
function of the jury, set forth the issues, correctly state the applicable law
in understandable language, and plainly spell out how the jury should apply the
legal principles to the facts as it may find them . . .
.’” Velazquez, supra, 163 N.J. at 688 (citations omitted). The failure to tailor
a jury charge to the given facts of a case constitutes reversible error
where a different outcome might have prevailed had the jury been correctly charged.
Ibid (citing Patton v. Amblo,
314 N.J. Super. 1, 8-9 (App. Div. 1998)).
Specifically, the trial court failed to instruct the jury on the significance of
defendant’s failure to perform intracompartmental pressure tests even in the absence of evidence
indicating what such tests would have revealed. Without a charge consistent with Gardner
v. Pawliw,
150 N.J. 359, 387-91 (1997), the jury may have determined that
defendant’s failure to perform the required diagnostic tests insulated defendant from liability. In
Gardner, plaintiff alleged that her treating obstetricians negligently failed to perform certain diagnostic
tests and that such failure increased the risk of a preexistent condition that
ultimately resulted in the premature birth and death of her child. The trial
court dismissed the complaint because the plaintiff failed to prove a proximate causal
relationship between the allegedly negligent conduct and the death of the fetus. The
Appellate Division affirmed.
This Court reversed, noting that a majority of jurisdictions had similarly modified the
causation standard in cases involving preexisting injuries. We also acknowledged that a complication
exists for a plaintiff when a physician deviates from the accepted standard of
care by failing to perform diagnostic tests. We explained that the failure to
perform such tests can eliminate a source of proof that is necessary to
“enable a medical expert to testify to a degree of reasonable medical probability
concerning what might have occurred had the test been performed.” Id. at 380.
We noted that other courts had held that the failure to perform required
tests should not shield the defendant from liability by precluding the plaintiff from
presenting his or her proof to the jury. Id. at 384. Hence, we
held that in cases where the prevailing standard of care indicated that a
diagnostic test should have been performed and it was a deviation not to
perform the test, but it is also unknown whether the test would have
helped to diagnose or treat the preexistent condition, the first prong of the
Scafidi increased risk test would be satisfied if the plaintiff demonstrated to a
reasonable degree of medical probability that the failure to perform the test increased
the risk of harm from the preexistent condition. Id. at 387. We noted
that a plaintiff may demonstrate an increased risk even if the test would
have been helpful in just a small proportion of cases. Ibid.
In the context of this case, plaintiff was not required to prove that
the tests would have revealed the presence of compartment syndrome. Plaintiff was required
to show that defendant’s failure to perform the intracompartmental pressure tests increased the
risk that plaintiff would suffer nerve injury resulting in the paralysis of his
left foot. See Gardner, supra, 150 N.J. at 388. As we stated in
Gardner, however, the likely significance of the test result is not entirely irrelevant
to the outcome of the litigation. Id. at 389. We explained that it
was the jury’s responsibility, based on all the evidence in the record, to
decide whether any increased risk resulting from a failure to test “was or
was not a substantial factor in causing the ultimate harm sustained.” Ibid.
D
It is “well settled in our State that the trial judge has the
right, and oftentimes the duty, to review the testimony and comment upon it.”
State v. Laws,
50 N.J. 159, 177 (1967), reargued,
51 N.J. 494, cert.
denied,
393 U.S. 971,
89 S.Ct. 408,
21 L. Ed.2d 384 (1968).
Although a “pattern charge[]” is often helpful to trial courts in the majority
of cases, “the better practice in complex cases is to discuss the law
in the context of the material facts of the case, reviewing the evidence,
where appropriate.” Bitsko v. Main Pharmacy, Inc.,
289 N.J. Super. 267, 284 (1996)
(citing State v. Concepcion,
111 N.J. 373, 379 (1988)). Specific comment on the
evidence and facts “is especially helpful in a protracted trial with conflicting testimony,”
Concepcion, supra, 111 N.J. at 380, and “can assist the jury in reaching
correct results,” Bitsko, supra, 289 N.J. Super. at 284. Such comments are appropriate
provided they are “not [made] to control the jury’s findings.” Ridgewood v. Sreel
Inv. Corp.,
28 N.J. 121, 128 (1958).
Compounding the potential for jury confusion caused by the traditional “substantial factor” charge,
and the absence of any explanation about plaintiff’s burden of proving an increased
risk based on defendant’s failure to test for compartment syndrome, was the complete
lack of any cross-reference in the jury charge on the law to the
underlying evidence and plaintiff’s theory of recovery. The jury instruction includes a brief,
three-sentence summary of plaintff’s allegations. Some fifteen paragraphs later in the charge, the
trial court undertook to explain proximate causation in cases involving preexistent conditions, instructing
the jury on the concepts of increased risk, substantial factor and damage apportionment.
No attempt was made to relate those legal principles to the underlying factual
allegations or to the parties respective contentions. While not an independent source of
reversible error, the abstractness of the trial court’s instruction on the law increases
our concern that the second jury may not have understood adequately how to
apply the legal principles that were to guide its decision to the factual
contentions of the parties.
IV
The judgment of the Appellate Division is reversed and the matter is remanded
to the Law Division for a new trial.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, and ZAZZALI join in JUSTICE STEIN’s
opinion. JUSTICES VERNIERO and LaVECCHIA filed a separate opinion concurring in part and
dissenting in part.
SUPREME COURT OF NEW JERSEY
A-
9 September Term 2001
FRANK REYNOLDS,
Plaintiff-Appellant,
v.
MARIO D. GONZALEZ, M.D., a licensed physician of the State of New Jersey,
Defendant-Respondent,
and
MEADOWLANDS HOSPITAL MEDICAL CENTER, a Hospital Corporation of the State of New Jersey,
its, servants, agents or employees, JOHN DOE AND MARY ROE #1-5 (fictitious names
intending to designate nurses and health care professionals who participated in the care,
management, post surgical management and care of Plaintiff), and each of them jointly,
severally or in the alternative,
Defendants.
VERNIERO, LaVECCHIA JJ., concurring in part, dissenting in part.
We concur in that part of the Court’s opinion modifying the instructions on
substantial-factor causation in increased-risk cases. Unlike the majority, however, we would apply the
modified instruction prospectively and do not believe that a third trial is warranted
in this case.
Plaintiff commenced this action in September 1994. Defendant twice defended himself, and on
both occasions the jury agreed that the risk of harm generated by defendant’s
deviation from acceptable medical practice was not a substantial factor in producing the
ultimate injury. Although not perfect, the charge given in the second trial is
sustainable under applicable standards. See Fischer v. Canario,
143 N.J. 235, 254 (1996)
(instructing that no reversible error is 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”).
In our view, the jury’s verdict was based not on confusion, but on
the simple fact that jurors found defendant’s expert more persuasive on the relevant
issues. After nearly eight years of litigation and two separate trials, we should
not trespass on that finding. The judgment of the Appellate Division should be
affirmed.
SUPREME COURT OF NEW JERSEY
NO. A-9 SEPTEMBER TERM 2001
ON CERTIFICATION TO Appellate Division, Superior Court
FRANK REYNOLDS,
Plaintiff-Appellant,
v.
MARIO D. GONZALEZ, M.D., a
Licensed physician of the
State of New Jersey,
Defendant-Respondent.
DECIDED June 11, 2002
Chief Justice Poritz PRESIDING
OPINION BY Justice Stein
CONCURRING/DISSENTING OPINION BY JUSTICES VERNIERO
AND LaVECCHIA
CHECKLIST
REVERSE AND REMAND
CONCUR IN PART/DISSENT IN PART
CHIEF JUSTICE PORITZ
X
JUSTICE STEIN
X
JUSTICE COLEMAN
X
JUSTICE LONG
X
JUSTICE VERNIERO
X
JUSTICE
LaVECCHIA
X
JUSTICE ZAZZALI
X
TOTALS
5
2
Footnote: 1
Compartment syndrome is a painful condition that occurs when there is swelling
inside an enclosed compartment in the body. It can be limb-threatening and life-threatening
if left untreated. It occurs when intracompartmental pressure builds because excess fluid is
introduced or there is extraneous constriction of the compartment, preventing nourishment from reaching
nerve and muscle cells. Compartment syndrome can be caused by direct injury to
the muscles, bleeding associated with a fracture, intensive muscle use, casts or even
lying for too long on a limb. Traditional warning signs that a patient
with compartment syndrome may exhibit includes pain unrelieved by analgesic drugs, sensation of
numbness or tingling (paresthesia), pressure in the affected compartment and pulselessness in the
injured area. With perhaps the exception of pain and paresthesia, the other traditional
signs are not necessarily reliable indicators of compartment syndrome. Generally, if compartment syndrome
is suspected, the proper course of action is to check intracompartmental pressure and
perform a fasciotomy (an incision in the affected compartment to relieve pressure) if
necessary. Richard Paula, M.D., Compartment Syndrome, Extremity from Emergency Medicine/Trauma and Orthopedics, 2
emedicine Journal 12, at <http://
/emerg/topic739.htm> (visited December 21, 2001).
Footnote: 2
Plaintiff also had joined Meadowlands Hospital in his complaint. However, the complaint
against Meadowlands Hospital was dismissed on summary judgment. A second suit filed by
plaintiff against his housing complex stemming from the fall he sustained shortly after
he was discharged also was dismissed. That second complaint was dismissed at the
close of all the evidence because the trial court determined that there was
no medical expert testimony linking plaintiff’s injury to the fall.
Footnote: 3
“Plantar flexion of the foot due to weakness or paralysis of the anterior
muscles of the lower leg.” Taber’s Cyclopedic Medical Dictionary 746 (18th ed. 1997).
Converted by Andrew Scriven