(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 February 2, 1998 -- Decided June 16, 1998
Coleman, J., writing for a majority of the Court.
The issue raised in this medical malpractice case is whether a jury should receive an ultimate
outcome instruction concerning the statutory limitation of a hospital's liability.
The decedent, Russell M. Wood, was admitted to St. Joseph's Medical Center on June 19, 1989, for
treatment of heart disease and chronic kidney failure. At the time, he was sixty-seven and suffered from
long-term hypertension and various coronary and renal problems. An angiogram revealed some blockage of
a coronary artery. He was placed on a heart monitor and began receiving dialysis treatments three days a
week. He was kept on the heart monitor during treatments.
Wood's cardiologist recommended electro-physiologic cardiac studies. Because St. Joseph's did not
have the equipment needed for those studies, Wood was transferred to defendant St. Michael's Medical
Center on Thursday, July 13, 1989. On arrival at St. Michael's, Wood was immediately connected to a
cardiac monitor under continuous supervision.
Wood was taken to the dialysis unit about noon on Saturday, July 1 and given dialysis. He was not
connected to a cardiac monitor, notwithstanding that no order had been written in his chart discontinuing the
monitor. A nurse found Wood unresponsive with no blood pressure at 2:25 p.m. Despite being successfully
resuscitated, he sustained irreversible brain damage and remained in a coma until his death on August 28,
1989. Plaintiff's experts opined that had Wood's heart been monitored during dialysis, the cardiac arrest
could have been avoided altogether or counteracted in time to avoid brain damage.
Plaintiff instituted this litigation against St. Michael's, two dialysis nurses, two residents, and the
attending doctors. Prior to trial, the case was dismissed as to the two residents and one doctor. After the
plaintiff's case, the claims against the two dialysis nurses and another doctor were dismissed. The case was
submitted to the jury against St Michael's and three doctors. The trial court denied plaintiff's request to
inform the jury that at the time of the alleged malpractice, the Charitable Immunity Act, N.J.S.A. 2A:53A-8,
limited St. Michael's liability to no more than $10,000.
The jury returned a verdict finding no cause of action against the doctors, but finding the hospital
negligent. It awarded total damages of $150,000. The trial court molded the verdict and entered judgment
against St. Michael's for $10,000 based on the Charitable Immunity Act.
Plaintiff appealed, challenging several rulings, including the denial of her request to give an ultimate
outcome charge to the jury. The Appellate Division reversed the dismissal of the claim against one of the
nurses as well as the jury's verdict of no cause against one doctor. It also determined that plaintiff was
entitled to an ultimate outcome charge on the limitation of St. Michael's liability, and remanded for a new
trial to apportion damages. The Supreme Court granted St. Michael's petition for certification limited to the
question of the ultimate outcome instruction.
HELD: An ultimate outcome instruction concerning the statutory limitations of a hospital's liability should
not be given to a jury.
1. The Charitable Immunity Act was enacted in 1959 providing charitable immunity for nonprofit hospitals
for negligence liability exceeding $10,000. (The limit was raised in 1991 to $250,000.) The Court has held
that the Act must be liberally construed. (Pp. 7-10)
2. The Court has held that ultimate outcome instructions are appropriate in comparative negligence cases
where the defendant alleges that plaintiff shares responsibility for the harm and the lost-chance line of cases
where a defendant's negligence has combined with a preexisting condition to cause harm. The Court
deemed the ultimate outcome instruction essential in those cases so that the jury will understand the legal
effect of its findings on percentages of fault. Plaintiff urges that the instruction should be permitted here to
counteract a defense attorney's attempts to misguide a jury into finding liability against only the hospital.
The Appellate Division previously rejected this argument, finding that the jury might respond by shifting to
other defendants some amount of negligence for which it had concluded the hospital was responsible.
Johnson v. Mountainside Hospital,
239 N.J. Super. 312 (App. Div.), certif. denied,
122 N.J. 188 (1990). (Pp.
10-16)
3. The Court agrees with the holding in Johnson and its reasoning. The type of charge involved here
focuses on money and not percentages of fault. The model jury charge properly informs the jury how to
handle damages, providing that an assessment of damages should be made irrespective of which party is at
fault or to what degree, or who is to ultimately pay. An ultimate outcome charge in a negligence suit against
a hospital is not only irrelevant but has the clear potential of being highly prejudicial. A jury could be
inclined to shift to other defendants some percentage of negligence that it thought should rightfully be
assessed against the hospital. The Court agrees with the hospital's argument that informing a jury about a
hospital's limited liability is akin to telling a jury whether a defendant is insured and the amount of coverage.
Our courts have held for more than three-quarters of this century that it is improper to inform the jury
whether the defendant is insured or uninsured. (Pp. 16-20)
That portion of the judgment of the Appellate Division requiring an ultimate outcome jury
instruction is REVERSED, and the matter is REMANDED to the Law Division for retrial.
JUSTICE STEIN, dissenting, is of the view that this case is similar to the comparative negligence
cases and lost-chance line of cases, finding that in each instance the ultimate outcome charge would avoid a
jury verdict that, because of a legal principle unknown to the jury, would result in an outcome that the jury
would find to be unjust. He therefore would affirm.
SUPREME COURT OF NEW JERSEY
A-
73 September Term 1997
NANCY WEISS, Executrix of the
Estate of Russell M. Wood, and
NANCY WEISS, Executrix of the
Estate of Christine Wood, and
ROBERT E. WOOD, individually and
NANCY WEISS, individually,
Plaintiffs-Respondents,
v.
IRVIN GOLDFARB, M.D.; W.R. CHENITZ,
M.D.; BASSAM HADDAD, M.D.; MARY LEE
DOE, R.N. (a fictitious name); GUY
DOE, R.N. (a fictitious name); JANE
SMITH, R.N. (a fictitious name);
DONALD RUBINSTEIN, M.D.; AMER AL-ZARKA, M.D.; ADOLF SENFT, M.D.;
CECIL MATTHEWS, M.D.; EDWARD
MANZELLA, M.D.; MICHAEL GUMA, M.D.;
A. JOSEPHINE VILLANUEVA, R.N.; A.
JOSE DAIRO, L.P.N.; LILY MATULAC,
R.N.; R. BARCELONA, R.N.; and JANE
MOE I-V (a fictitious name),
Defendants,
and
ST. MICHAEL'S MEDICAL CENTER and
ANGELINA FORSHAGE, R.N.,
Defendants-Appellants.
Argued February 2, 1998 -- Decided June 16, 1998
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
295 N.J. Super. 212 (1996).
Patrick J. Hughes argued the cause for
appellants (Connell, Foley & Geiser,
attorneys; Ernest W. Schoellkopff, on the
briefs).
Arthur L. Raynes argued the cause for
respondents (Wiley, Malehorn and Sirota,
attorneys).
The opinion of the Court was delivered by
COLEMAN, J.
The issue raised in this medical malpractice case is whether
a jury should receive an ultimate outcome instruction that, at
the time of the alleged malpractice, the Charitable Immunity Act,
N.J.S.A. 2A:53A-8, limited a hospital's liability to no more than
$10,000. The trial court declined to give such an instruction.
The Appellate Division in a published opinion concluded that the
instruction should have been given.
295 N.J. Super. 212, 231-32
(1996). We granted St. Michael's petition for certification,
limited to the question of the ultimate outcome instruction.
150 N.J. 26 (1997).
We reverse and hold that an ultimate outcome instruction
should not be given to a jury concerning the statutory
limitations of a hospital's liability.
time, he was sixty-seven years old and suffered from long-term
hypertension and various coronary and renal problems.
Wood was
diagnosed as suffering from non-sustained ventricular
tachycardia, atrial fibrillation, and chronic kidney failure. An
angiogram revealed some blockage of a coronary artery. He was
placed on a heart monitor and began receiving dialysis treatments
on a three-day-a-week schedule, remaining on the heart monitor
during the treatments. Wood's cardiologist recommended the
performance of electro-physiologic cardiac studies. Because St.
Joseph's did not have the equipment needed to perform those
studies, Wood was transferred to defendant St. Michael's Medical
Center (St. Michael's) on Thursday, July 13, 1989.
Upon Wood's arrival at St. Michael's, he was immediately
admitted to the telemetry unit where he was connected to a
cardiac monitor under continuous supervision. Wood missed his
Friday, July 14, dialysis treatment, and his doctor arranged to
have that treatment provided the next day. Wood was taken to the
dialysis unit about noon that Saturday, July 15. He arrived
unconnected to a cardiac monitor, notwithstanding that no order
had been written in his chart discontinuing the monitor.
Although the dialysis unit was equipped with a cardiac monitor,
Wood was never connected to it.
During dialysis treatment on July 15, Wood's vital signs
remained normal from approximately 12:30 p.m. through 2:00 p.m.
At 2:25 p.m., however, a nurse found Wood unresponsive with no
blood pressure. Despite being successfully resuscitated, he
sustained irreversible brain damage as a result of the loss of
oxygen and remained in a coma until his death on August 28, 1989.
Plaintiff's experts opined that had his heart been monitored
during the dialysis treatment, the cardiac arrest could have been
avoided altogether or counteracted in time to avoid brain damage.
Plaintiff instituted the present litigation against St.
Michael's, two dialysis nurses
,
two residents who had attended
decedent in the telemetry unit
,
and all the attending doctors,
Drs. Rubenstein, Goldfarb, Senft, Haddad, and Chenitz. Prior to
trial, partial summary judgments were granted dismissing Dr.
Chenitz and the two residents. Following the close of
plaintiff's case, her claims against Dr. Goldfarb and the two
dialysis nurses were dismissed pursuant to Rule 4:37-2(b). The
case was submitted to the jury against St. Michael's and Drs.
Rubenstein, Senft, and Haddad. As noted previously, the trial
court denied plaintiff's request to inform the jury that St.
Michael's liability was capped at $10,000.
The jury returned a verdict finding no cause of action
against the doctors, but finding the hospital negligent. The
jury awarded total damages of $150,000. The trial court molded
the verdict and entered judgment for $10,000 based on the
Charitable Immunity Act. Plaintiff's subsequent motion for a new
trial was denied. She appealed several court rulings, including
the denial of her request to give an ultimate outcome charge to
the jury.
The Appellate Division affirmed the partial summary
judgments in favor of Drs. Chenitz and the two residents. 295
N.J. Super. at 220. It also affirmed the dismissal of the
complaint against Dr. Goldfarb and one of the nurses. Id. at
221-22. The court reversed the dismissal of the claim against
Nurse Forshage at the end of plaintiff's case. Id. at 227. It
also reversed the jury's verdict of no cause of action in favor
of Dr. Haddad. Id. at 226-27. The court affirmed the judgment
of liability against St. Michael's and the amount of the damages
award of $150,000. Id. at 233. The court determined that
plaintiff was entitled to an ultimate outcome charge instructing
the jury on the limitation on St. Michael's liability. Id. at
232. It remanded the case for a new trial on liability only
against Dr. Haddad and Nurse Forshage. Id. at 233. The retrial,
however, would require apportionment of liability if either Dr.
Haddad or Nurse Forshage was found liable. Therefore, the case
against St. Michael's was remanded as well for apportionment
purposes. Id. at 228.
Johnson v. Mountainside Hospital,
239 N.J. Super. 312 (App.
Div.), certif. denied,
122 N.J. 188 (1990).
St. Michael's maintains that an ultimate outcome charge is
distinguishable from similar charges given in comparative
negligence cases and the lost-chance line of cases following
Scafidi v. Seiler,
119 N.J. 93 (1990), because the charge in the
present case does more than merely advise the jury of the legal
effect of its findings. St. Michael's argues that in comparative
negligence and Scafidi-type cases, the ultimate outcome charge
guides a jury in its essential function of apportioning
responsibility for the total injury involved. The hospital
maintains that its legislatively mandated limitation on liability
is irrelevant to the role of the jury as fact-finder.
Plaintiff maintains that Johnson, supra, was wrongly decided
and is contrary to the holding of Roman v. Mitchell,
82 N.J. 336
(1980), that required an ultimate outcome charge in comparative
negligence cases. Plaintiff expresses concern that in situations
in which, as in this case, both the hospital and individuals
employed by it are represented by the same attorney, that in the
absence of an ultimate outcome instruction, an attorney will
attempt to misguide the jury into finding liability against only
the hospital because of the hospital's statutorily limited
liability.
-A-
[A]ny nonprofit corporation, society or association organized exclusively for hospital purposes shall be liable to respond in damages to such beneficiary who shall suffer damage from the negligence of such corporation, society or association or of its agents or servants to an amount not exceeding $10,000.00, together with interest and costs of suit, as the result of any 1 accident and to the extent to which such damage, together with interest and costs of suit, shall exceed the sum of $10,000.00 such nonprofit corporation, society or association organized exclusively for hospital purposes shall not be liable therefor.
This act shall be deemed to be remedial and
shall be liberally construed so as to afford
immunity to the said corporations, societies
and associations from liability as provided
herein in furtherance of the public policy
for the protection of nonprofit corporations,
societies and associations organized for
religious, charitable, educational or
hospital purposes.
Massachusetts has statutorily limited recovery against a charitable organization to $20,000. Mass. Gen. Laws ch. 231, § 85K (1985). Although the Massachusetts law is very similar to New Jersey's, its case law does not directly address whether juries should be apprised of the limited liability of charitable entities. See, e.g., Harlow v. Chin, 545 N.E.2d 602, 612-13 (Mass. 1989) (finding that although trial court did not make specific finding, it was on notice that hospital was charitable
organization; trial court should have entered judgment against
hospital limited by statutory cap). Similarly, other states have
not addressed the issue.
The two federal cases relied on by the dissent do not
support an ultimate outcome instruction. Post at ____ (slip op.
at 13-15). Unlike the present case, those cases required the
jury to resolve factual issues concerning statutory damages.
In In re Aircrash in Bali, Indonesia,
871 F.2d 912 (9th Cir.
1989), relatives of Pam Am Airline passengers sought to recover
more than the $75,000 limitation imposed by the Warsaw Convention
(Convention). Id. at 814. To achieve that goal, plaintiffs
sought to persuade a jury that the airline engaged in willful
misconduct or that it failed to notify its passengers of the
$75,000 Convention limitation. Id. at 814 n.1. The damage
limitation was placed before the jury in order for it to perform
its role as fact-finder. Id. at 815. Vinieris v. Byzantine
Maritime Corp.,
731 F.2d 1061 (2d Cir. 1984), involved a jury
trial for civil penalties, pursuant to
46 U.S.C.A.
§596, based
on a ship captain's alleged failure to pay earned wages to a
seaman. Id. at 1062. The Court of Appeals held that because the
jury had to decide whether the captain violated the statute by
acting arbitrarily, unreasonably or willfully, he should have
been permitted to testify that he had personal knowledge of the
substantial statutory penalties, thereby inferring that he would
not have violated the statute. Id. at 1064. Here, too, the
statutory damages were placed before the jury because that
information was essential to the jury's fact-finding role. In
the present case, the statutory damages are irrelevant to the
jury's role.
Plaintiff's claims against the multiple defendants that each
was negligent and that such negligence proximately contributed to
the death of the decedent, required the jury to apportion the
total negligence between all defendants found liable. Such
apportionment implicates the comparative negligence statute,
N.J.S.A. 2A:15-5.1 to -5.3. Plaintiff's request for an ultimate
outcome instruction concerning the hospital's limited liability
was based on the ultimate outcome charge used in comparative
negligence and lost-chance cases.
This Court first allowed an ultimate outcome instruction in
a comparative negligence context in Roman v. Mitchell, supra, 82
N.J. at 345. There, the Court concluded that, in a comparative
negligence case, the jury should be informed of the legal effect
of its findings. Ibid. Noting that the comparative negligence
statute made no mention of whether juries should be informed of
the statute's legal effect, the Court held that the jury “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 the statute operates.”
Ibid.
The Court reasoned that an ultimate outcome jury instruction
was not a novelty in the jurisprudence of negligence. Prior to
the adoption of our comparative negligence statute, a plaintiff's
contributory negligence was a complete bar to recovery if it
proximately contributed to the occurrence of an accident.
Dziedzic v. St. John's Cleaners & Shirt Launderers, Inc.,
53 N.J. 157, 161, 164-65 (1969); Kaufman v. Pennsylvania R.R. Co.,
2 N.J. 318, 323-24 (1949). In such cases, the jury was given an
ultimate outcome instruction that if it found contributory
negligence on the part of a plaintiff to any degree that
proximately contributed to the happening of the accident, the
legal effect of that finding obligated the jury to return a
verdict in favor of the defendant. Roman, supra, 82 N.J. at 345;
O'Brien v. Bethlehem Steel Corp.,
59 N.J. 114, 124 (1971).
Moreover, the Roman court noted that requiring an ultimate
outcome instruction was consistent with the trend in other
jurisdictions. Roman, supra, 82 N.J. at 346.
When the Court in Roman acknowledged that an ultimate
outcome instruction prevents a jury from applying a mistaken
notion of how a statute works, and when it agreed with plaintiff
that the jury probably intended that plaintiff recover 25" even
though it found plaintiff 75" negligent, the Court by implication
based its decision to require an ultimate outcome instruction
partly on the fact that New Jersey had adopted a modified rather
than a pure comparative negligence statute. N.J.S.A. 2A:15-5.1;
Van Horn v. William Blanchard Co.,
88 N.J. 91, 94 (1981). The
New Jersey comparative negligence statute provides that a
contributorily negligent plaintiff may recover, “if such
negligence was not greater than the negligence of the person
against whom recovery is sought.” N.J.S.A. 2A:15-5.1. “New
Jersey has a 'modified' comparative negligence system, as
distinguished from a 'pure' system under which 'a plaintiff may
recover even if his negligence is greater than the negligence of
the adverse tortfeasor,' with the recovery 'diminished by his
degree of contributory negligence.'” Van Horn, supra, 88 N.J. at
94-95 (citation omitted).
The Roman Court relied on decisional law of Idaho, a state
that also has a modified comparative negligence statute. In
Seppi v. Betty,
579 P.2d 683 (Idaho 1978), the court stated:
A jury uninformed about the precise working
of the Idaho comparative negligence law, when
presented with questions asking them to
apportion the negligence between the parties
and to fix the total amount of damages, is
likely to assume that the plaintiff's
recovery will be reduced in proportion to his
negligence. In such situation the Idaho
comparative negligence rule, which bars
recovery if the plaintiff's negligence is 50" or more, poses a trap for the uninformed jury
. . . . In the case where it is clear that
both parties were negligent to some extent, a
50-50 allocation of negligence is singularly
attractive to a jury . . . . Thus, the
uninformed jury could easily deceive itself
into believing that it has decided that the
defendant should pay for half of the
plaintiff's damages when in fact it has
determined that the plaintiff will recover
nothing at all.
The concern about an uninformed jury is not critical in a pure comparative negligence jurisdiction because the jury would be correct in assuming that a plaintiff's recovery simply would be reduced by the extent of that plaintiff's negligence. Thus, the Roman decision was appropriate under New Jersey's modified comparative negligence statute because in order to make an informed apportionment of fault, the jury needed to know that a plaintiff would not recover if that plaintiff was determined to be more negligent than a defendant from whom recovery was sought.
Following the decision in Roman, the Court in Fischer v. Canario, 143 N.J. 235 (1996), held that in Scafidi-type-lost-chance cases, the jury should be given an ultimate outcome instruction. Id. at 254-55. Scafidi lost-chance cases are those involving a defendant's negligence that has combined with a preexisting condition to cause harm. Because those types of cases require use of the "substantial factor" standard of causation rather than the "but for" standard, Anderson v. Picciotti, 144 N.J. 195, 206-07 (1996), the legal principles that inform the determination of causation with respect to damages are
quite similar to those involved in making the percentage of
negligence determination under the comparative negligence
statute. Ibid.; Scafidi, supra, 119 N.J. at 113. The comparison
in Scafidi-type cases is between the preexistent condition and
defendant's conduct to arrive at the lost chance or apportionment
of responsibility on a percentage basis. The rationale is based
on simple justice.
In a Scafidi-type case, as with comparative
negligence, "'a tortfeasor should be charged
only with the value of the interest he [or
she] destroyed.'" Scafidi, supra, 119 N.J. at
112,
574 A.2d 398 (quoting Joseph H. King,
Jr., Causation, Valuation, and Chance in
Personal Injury Torts Involving Preexisting
Conditions and Future Consequences, 90 Yale
L.J. 1353, 1356 (1981)).
[Anderson, supra, 144 N.J. at 207.]
Fischer required an ultimate outcome instruction so that the jury would know the legal effect of the apportionment of causation. Fischer, supra, 143 N.J. at 254. The apportionment is made between the harm caused by a defendant's negligent medical treatment and that caused by the patient's preexisting medical condition. Id. at 241. Once the jury has measured the lost chance on a percentage basis, the judge is required to "'mold the verdict to limit defendant's liability to the value of the lost chance for recovery attributable to defendant's negligence.'" Id. at 241-42 (quoting Scafidi, supra, 119 N.J. at 114). In requiring an ultimate outcome charge, the Court in Fischer feared that without it, the jury would mistakenly reduce the damages award to reflect its apportionment of responsibility
and the trial court would again reduce the damages when molding
the verdict.
Johnson v. Mountainside Hospital, supra,
239 N.J. Super. 312, presented the identical legal issue raised in the present
case. There, the plaintiff's wife died when her respirator was
accidentally disconnected while receiving medical treatment at
Mountainside Hospital. Id. at 317-18. Suit was instituted
against the hospital and several hospital employees. Id. at 318.
The jury found the manufacturer of the respirator 80" negligent
and the hospital liable for 20" of the total damages awarded,
which equaled $96,250. Id. at 319. Based on the Charitable
Immunity Act, however, the hospital's liability was reduced to
$10,000. Ibid. Plaintiff argued on appeal that the jury should
have been given an ultimate outcome instruction. Id. 319-20.
The purpose of that requested jury instruction in Johnson
and the present case was the same: to counteract defendant's
perceived trial strategy of casting the blame, if any, for
decedents' deaths upon the hospitals which had statutorily
limited liability while shielding the individual defendants who
had unlimited liability exposure. Id. at 325.
In rejecting the request for an ultimate outcome
instruction, the court in Johnson stated:
If the requested instruction was to have
any effect upon a jury's verdict, it could
only be to persuade the jury to shift to the
other defendants some amount for which it had
concluded the hospital, and not the other
defendants, was justly responsible. By the
enactment of N.J.S.A. 2A:53A-8, the
legislature determined that, as a matter of
social policy, an injured beneficiary of the
hospital's works, can shift only a limited
share of the consequences of the hospital's
negligence to the hospital itself. But there
is no reason to believe that a purpose of the
statute was to shift any part of those
consequences to other parties merely because
they happen to be caught up in the same law
suit as the hospital. We agree with the
trial judge that a charge leading to that
result would be unfair and inappropriate. In
that respect, we think that the situation
presented by this case is different from
situations in which an ultimate outcome
charge has been held to be required. See
Roman v. Mitchell,
82 N.J. 336, 345-347
(1980); Dimogerondakis v. Dimogerondakis,
197 N.J. Super. 518 (Law Div. 1984).
III
In a comparative fault situation, the jury is required to express the relative culpability of the defendants in terms of percentages. Because New Jersey does not have a "pure" comparative fault system, the ultimate outcome instruction was required so that the jury would not deliberate on the percentages of fault under some mistaken notion of how the statute that controlled its deliberations worked. Without such a charge, the jury could mistakenly assume that a finding that plaintiff was
sixty percent negligent and defendant was forty percent negligent
would allow plaintiff to recover forty percent.
The type of charge involved here focuses on money and not
percentages of fault. The model jury charge in comparative
negligence cases properly informs the jury how to handle damages.
It provides that any assessment of damages for a plaintiff's
injuries "should be made irrespective of which party is at fault
or to what degree, or who is to ultimately pay damages to be
assessed." Model Jury Charge (Civil), 8.22, "Comparative
Negligence-Interrogatories," (pre-1985).
Furthermore, for more than three-quarters of this century
our courts have held that in negligence cases, it is improper to
inform the jury whether the defendant is insured or uninsured.
Sutton v. Bell,
79 N.J.L. 507, 510 (E. & A. 1910). Where, as in
the present case, the issue before the jury is the negligence of
the defendant, whether a monetary verdict is collectable or a
defendant has insurance is irrelevant to the jury. Brandimarte
v. Green,
37 N.J. 557, 562-63 (1962); Haid v. Loderstedt,
45 N.J.
Super. 547, 550-52 (App. Div. 1957). More recently, even in the
trial of verbal threshold cases before a jury to determine
whether a plaintiff's alleged injuries qualify under that
statute, N.J.S.A. 39:6A-8a, our courts have held that it is
improper to mention verbal threshold insurance coverage. Demers
v. Snyder,
282 N.J. Super. 50, 58 (App. Div. 1995); Pickett v.
Bevacqua,
273 N.J. Super. 1, 5-6, (App. Div. 1994). References
to insurance can prejudice a defendant by suggesting that the
defendant did not care whether proper care was exercised because
the insurance company would pay if found to be at fault. A
reference to coverage might even suggest that a larger award may
be appropriate because a "deep pocket" is available. On the
other hand, if a defendant is uninsured, that may engender
sympathy for that defendant to the prejudice of the plaintiff.
Consistent with the principle that juries in negligence
cases not be informed regarding the insured status of a
defendant, our public policy has prohibited counsel in negligence
cases from requesting a jury to return a damage award in a
specific amount. Botta v. Brunner,
26 N.J. 82, 102-104 (1958).
Although the strictures of Botta have been modified by Rule 1:7-1(b) to permit argument to the jury "that unliquidated damages be
calculated on a time-unit basis," reference to a specific sum
may not be made.
Complementary to our decisional law and court rules
precluding arguments for or against a specific sum in negligence
cases, the Legislature has also addressed the issue. As part of
its 1995 tort reform, L. 1995, c. 142, § 9, the Legislature
directed that "[t]he jury shall not be informed of the cap on
punitive damages established by section 6 of this act."
N.J.S.A. 2A:15-5.16. The cap was fixed at "five times the
liability of that defendant for compensatory damages or $350,000,
whichever is greater." L. 1995, c. 142, § 6, codified at
N.J.S.A. 2A:15-5.14b. Because a hospital can be subject to a
potential claim for punitive damages, Perna v. Pirozzi, 92 N.J.
446, 461 (1983); Edwards, supra, 217 N.J. Super. at 459;
Seiderman v. American Inst. for Mental Studies,
667 F. Supp. 154,
160-61 (D.N.J. 1987), we believe that the 1995 legislative
proscription against divulging caps to juries is relevant in the
present case.
In view of the foregoing legal principles, an ultimate
outcome charge, based on the Charitable Immunity Act, in a
negligence suit against a hospital is not only irrelevant but
has the clear potential of being highly prejudicial. We are
convinced that the prejudicial effect of such an instruction
could be to shift to other defendants some percentage of
negligence that the jury thought should rightfully be assessed
against the hospital. We find persuasive the hospital's argument
that informing a jury about a hospital's limited liability is
akin to telling a jury whether a defendant is insured and the
amount of coverage and is at least as prejudicial as telling it
about insurance coverage. Such a prejudicial effect would be the
antithesis of what Roman and Fischer anticipated. Informing a
jury of the liability cap also violates the legislative policy
expressed in the Charitable Immunity Act of protecting nonprofit
hospitals and the Legislature's desire to withhold from juries
the existence of statutory limits on monetary awards.
Finally, we find unpersuasive plaintiff's assertion that an
ultimate outcome charge is especially needed when the same
defense attorney represents the hospital and its employees. A
hospital can only act through its agents, servants and employees.
Schultz, supra, 95 N.J. at 538. Thus, a hospital can only be
vicariously liable. Consequently, if each defendant-employee of
a hospital was represented by separate counsel, he or she would
perhaps more vigorously seek to shift responsibility to the
capped defendant, the hospital. Despite plaintiff's view to the
contrary, defense counsel vigorously asserted that neither the
hospital nor any of its employees had been negligent in treating
Mr. Wood.
That portion of the judgment of the Appellate Division
requiring an ultimate outcome jury instruction is reversed. As
modified, the matter is remanded to the Law Division for retrial
as ordered by the Appellate Division.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
and GARIBALDI join in JUSTICE COLEMAN's opinion. JUSTICE STEIN
has filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-
73 September Term 1997
NANCY WEISS, Executrix of the
Estate of Russell M. Wood, and
NANCY WEISS, Executrix of the
Estate of Christine Wood, and
ROBERT E. WOOD, individually and
NANCY WEISS, individually,
Plaintiffs-Respondents,
v.
IRVIN GOLDFARB, M.D.; W.R. CHENITZ,
M.D.; BASSAM HADDAD, M.D.; MARY LEE
DOE, R.N. (a fictitious name); GUY
DOE, R.N. (a fictitious name); JANE
SMITH, R.N. (a fictitious name);
DONALD RUBINSTEIN, M.D.; AMER AL-ZARKA, M.D.; ADOLF SENFT, M.D.;
CECIL MATTHEWS, M.D.; EDWARD
MANZELLA, M.D.; MICHAEL GUMA, M.D.;
A. JOSEPHINE VILLANUEVA, R.N.; A.
JOSE DAIRO, L.P.N.; LILY MATULAC,
R.N.; R. BARCELONA, R.N.; and JANE
MOE I-V (a fictitious name),
Defendants,
and
ST. MICHAEL'S MEDICAL CENTER and
ANGELINA FORSHAGE, R.N.,
Defendants-Appellants.
STEIN, J., dissenting.
In this medical malpractice case tried to a jury, the jury determined that St. Michael's Hospital's negligence was a proximate cause of the death of plaintiff's decedent, and returned a damages verdict against the Hospital in the amount of
$150,000. The jury also returned a verdict of no cause of action
in favor of Doctors Rubenstein, Senft, and Haddad. On appeal,
the Appellate Division ruled that the trial court erred in
dismissing plaintiff's claims against Nurse Forshage at the close
of plaintiff's case, and that because of trial error the verdict
in favor of Dr. Haddad must be set aside and a new trial ordered.
295 N.J. Super. 212, 222 (App. Div. 1996). Although preserving
the damages verdict of $150,000, the court ordered a retrial of
liability against Dr. Haddad, Nurse Forshage, and St. Michael's
Hospital. Id. at 228. The Appellate Division also held that on
retrial the jury should be informed that pursuant to the
provisions of the Charitable Immunity Act then in effect,
N.J.S.A. 2A:53A-8, the Hospital's liability could not exceed
$10,000 no matter what relative proportion of fault is assigned
to it by the jury. Id. at 229-230.
We granted certification,
150 N.J. 26 (1997), limited to the
question whether the Appellate Division properly required an
ultimate outcome charge. The Court now disapproves of the
proposed instruction, concluding that the charge, much like a
reference to insurance coverage, improperly focuses the jury's
attention on the collectibility of the verdict. Although the
issue is a close one, I disagree with both the Court's reasoning
and with its conclusion.
Both the Court's and the Appellate Division's opinions agree
that the most influential New Jersey precedents bearing on the
ultimate outcome charge issue are Roman v. Mitchell,
82 N.J. 336
(1980), and Fischer v. Canario,
143 N.J. 235 (1996), but the
opinions disagree sharply about the inferences and conclusions to
be drawn from those decisions.
In Roman, supra, damages were sought on behalf of a twelve-year-old plaintiff who, while standing with his bicycle on the
shoulder of the New Jersey Turnpike after being stopped by a
state trooper, was seriously injured when a dump truck being
driven on the Turnpike lost its two left rear wheels, one of
which careened across the roadway onto the shoulder causing
serious injuries to the plaintiff. 82 N.J. at 340. The
plaintiff's suit joined as defendants Mitchell, the truck's
owner; Wade, the driver; and Salvaterra Construction Co.,
Mitchell's employer, who had been authorized by Mitchell to use
the truck on the day of the accident. Loose lug nuts on the
truck's rear wheels apparently caused the accident, and Mitchell
acknowledged responsibility for checking the lug nuts to make
certain they were secure. At trial the plaintiff testified and
acknowledged that he knew prior to the accident that the Turnpike
was unsafe for bicyclists and that he had been cautioned not to
ride on roads with high traffic volume.
Prior to the jury verdict, the plaintiff's counsel requested
that the jury be instructed essentially that "for the infant
plaintiff to recover, the jury would have to find that the
defendant's percentage of negligence was greater than that of the
plaintiff, and that the damages awardable to the infant must be
diminished in proportion to the amount of negligence attributable
to him." Id. at 342-43. The trial court denied the request.
The jury apportioned twenty-five percent of the fault for the
accident to defendant Mitchell and the remaining seventy-five
percent to the plaintiff.
Accordingly, the trial court entered
judgment for Mitchell as required by the Comparative Negligence
Act, N.J.S.A. 2A:15-5.2(c). Following the Appellate Division's
affirmance of the judgment below, this Court, in an opinion by
Justice Sullivan, reversed and remanded for a new trial. Id. at
343. The Court held that the trial court erred in granting
Salvaterra Construction Co.'s motion for involuntary dismissal,
concluding that a jury could find that Salvaterra had an
independent duty to check the safety of the truck prior to use.
Id. at 344. In addition, the Court held that the jury's
apportionment of seventy-five percent of fault to the infant
plaintiff was contrary to the weight of the evidence. Id. at 343
n.1.
On the ultimate outcome charge issue, the Court acknowledged
the plaintiff's contention that
unless the jury is made aware of the legal
effect of its findings as to percentages of
negligence, such findings may be premised on
an erroneous concept of the law and can
result in a molded judgment far different
from that intended by the jury. In this very
case it has been suggested that the jury may
well have concluded that its findings of the
infant plaintiff's negligence quota of 75" and defendant Mitchell's 25" would result in
a monetary verdict for plaintiff for 25" of
the damages found.
This Court concluded that in comparative negligence cases a jury
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 the statute
operates." Ibid. The Court observed that "ordinarily, a jury
informed of the legal effect of its findings as to percentages of
negligence in a comparative negligence trial is better able to
fulfill its fact finding function." Id. at 346. The Court also
noted that
"[t]his is a much more effective way to control the
problems of misunderstanding and bias in jury verdicts than
attempting to blindfold the jury."
Id. at 347 (quoting Seppi v.
Betty,
579 P.2d 683, 692 (Idaho 1978)).
This Court's insistence on an ultimate outcome charge in
Fischer v. Canario, supra,
143 N.J. 235, arose in a context
different from that which motivated the use of the charge in
Roman, supra. Fischer involved a claim for damages on behalf of
the decedent, Rachel Fischer, who died of metastatic lung cancer
in 1988. Her administrator's complaint alleged that the
defendants, Dr. Canario, an orthopedist, and Dr. Magid, a
radiologist, deviated from accepted medical standards by failing
to inform the decedent of the result of a chest x-ray, performed
in connection with a 1984 hospital admission, that revealed a
probable tumor. At trial, the parties stipulated that if the
decedent's cancer had been diagnosed in 1984 she would have had a
fifty-percent chance of survival. The plaintiff's expert
testimony asserted that the defendant's failure to review the
chest x-ray and inform the decedent of the probable tumor
increased her risk of death and was a substantial factor in
causing her death. Id. at 239. At the conclusion of trial, the
plaintiff's counsel requested an ultimate outcome charge that
would instruct the jury that, irrespective of the decedent's
fifty-percent chance of survival without taking into account the
defendants' negligence, the jury -- assuming it found one or both
of the defendants' negligence to be a substantial factor in
causing the decedent's death -- should award in full the damages
to which it found the decedent to be entitled, after which the
court would reduce the award to reflect the decedent's fifty-percent chance of cure. Id. at 253. The trial court declined to
so instruct the jury. Ibid.
The jury determined that Dr. Canario, but not Dr. Magid, was
negligent, that his negligence was a substantial factor in
causing the decedent's death, and awarded damages of $134,231.
The trial court declined to apply retroactively this Court's
decision in Scafidi v. Seiler,
119 N.J. 93, 112-13 (1990), in
which we held that "[t]o the extent that a plaintiff's ultimate
harm may have occurred solely by virtue of a preexistent
condition, without regard to a tortfeasor's intervening
negligence, the defendant's liability for damages should be
adjusted to reflect the likelihood of that outcome." The
Appellate Division affirmed. Fischer v. Canario,
277 N.J. Super. 302, 310 (1994).
On appeal, we held that the Scafidi rule should apply to all
cases tried after the date of that decision, 143 N.J. at 251, and
that the lower courts erred in failing to apply Scafidi to mold
the jury verdict. We also addressed the ultimate outcome charge
issue, noting that the defendant acknowledged the appropriateness
of an ultimate outcome charge in Scafidi-type cases but contended
that the trial court's failure to give the charge constituted
harmless error. Ibid. The Court summarized the plaintiff's
argument in support of an ultimate outcome charge:
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.
In concluding that the trial court's failure to provide the
jury with an ultimate outcome charge constituted reversible error
mandating a retrial on damages, we observed:
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
This Court's opinion in Roman, supra, adverted to the growing trend in favor of providing ultimate outcome instructions to juries in comparative negligence cases. 82 N.J. at 346. The development of that trend contradicted early decisions by a number of state appellate courts holding that juries should not be informed of the legal effect of their answers in cases submitted to juries by the use of special verdicts. Wisconsin, one of the first states to adopt comparative negligence, was a
firm advocate of the rule against ultimate outcome charges when
special verdicts were used. See McGowan v. Story,
234 N.W.2d 325, 328-30 (Wis. 1975). Other state courts expressed a similar
hostility to the use of ultimate outcome charges. See Argo v.
Blackshear,
416 S.W.2d 314, 315-16 (Ark. 1967); Avery v.
Wadlington,
526 P.2d 295, 297 (Colo. 1974), overruled by statute
as stated in Mountain Mobile Mix, Inc. v. Gifford,
660 P.2d 883,
887 (Colo. 1983); McCourtie v. United States Steel Corp.,
93 N.W.2d 552, 563 (Minn. 1958); Grasso v. Cannon Ball Motor Freight
Lines,
81 S.W.2d 482, 487 (Tex. 1935); McGinn v. Utah Power &
Light Co.,
529 P.2d 423, 424 (Utah 1974), overruled by Dixon v.
Stewart,
658 P.2d 591, 596-97 (Utah 1982). Until the 1970s, the
practice of precluding the use of ultimate outcome charges in
cases submitted to juries on special verdicts represented the
majority rule throughout the country. See Stuart F. Schaffer,
Informing the Jury of the Legal Effect of Special Verdict Answers
in Comparative Negligence Actions, 1
981 Duke L.J. 824, 832-33.
The majority rule, however, was subjected to sharp
criticism. Professor Leon Green, an early critic, expressed
strong disagreement with the Texas rule prohibiting ultimate
outcome instructions:
No one would contend that the purpose of
instructions should be to prejudice a case in
favor of one party or the other. Nor would
it be contended that the purpose of an
explanatory instruction should be the
direction of the jury to proceed to find for
one party or the other without respect to the
merits of the issue as supported by the law
and the evidence. The purpose is to explain
the issue so that its significance can be
understood, intelligently considered and
fairly determined. If so knowing the
significance of issues, juries also know how
to answer them for one party or the other,
that is not only their right and a matter for
their conscience, but it is likewise a right
of the parties under the law. Admittedly
jurors do understand the significance of most
issues and are trusted to answer them
honestly. What reason is there for not
trusting them on complex issues if their
significance is explained?
. . . .
It does not seem that the blindfold is a
proper remedy for this evil, for there is no
blindfold known that will prevent a jury from
thinking they know the legal effect of their
answers. The better remedy seems to be to
inform a jury of the legal effect of the
issue so that the evidence can be weighed
with respect to that issue and its
consequences. If they mistakenly think they
know the significance of their answers, this
false assumption results in a verdict they do
not want and one out of line with the facts
as the jury conceive[s] them to be. But if
they know the legal effect of the issue, its
effect and the evidence to support it are
open for debate both by counsel and by the
jurors themselves without emphasis on the end
to be reached.
[Leon Green, Blindfolding the Jury,
33 Texas
Law Rev. 273, 281-83 (1955).]
Professor Charles Alan Wright also took issue with the
majority rule:
It hardly seems logical to restrict the
discretion of the trial judge. Since he is
free to choose either a general verdict with
a general charge, or special verdicts with no
charge, he should be permitted the
intermediate device of special verdicts
accompanied by a charge on the law. Judges
who think that the jury is intended to
reflect the voice of the man in the street
may well prefer to follow this course.
Finally, it must be evident that in most
cases the jury will in fact know which party
is favored by a particular answer. If
plaintiff's counsel argues eloquently that
there is no evidence of contributory
negligence, even a juror who has never heard
of the doctrine is likely to deduce that it
will be in the plaintiff's interest for him
to answer "No" to the question about
contributory negligence. Interestingly the
Minnesota court, in order to preserve its
rule against letting the jury know the effect
of the answers, has found it necessary to
hold that it is error for counsel expressly
or by necessary implication to inform the
jury which side will benefit from a
particular answer. I find it difficult to
imagine any argument counsel can make which
will not have such an effect, at least by
implication. Thus the attempt to keep the
jury in the dark as to the effect of its
answers is likely to be unavailing. Indeed
the rule barring instructions on this point
gives rise to the danger that the jury will
guess wrong about the law, and may shape its
answers to the special verdicts, contrary to
its actual beliefs, in a mistaken attempt to
ensure the result it thinks proper.
[Charles Alan Wright, The Use of Special
Verdicts in Federal Court,
38 F.R.D. 199,
205-06 (1965)(footnotes omitted).]
Beginning in the mid 1970s, a number of cases were decided that permitted the use of ultimate outcome instructions in cases submitted on special verdicts, primarily in comparative negligence litigation. In Porche v. Gulf Mississippi Marine Corp., 390 F. Supp. 624 (E.D. La. 1975), involving the comparative negligence principles of admiralty law, the jury inquired whether the plaintiff would receive all damages awarded by the jury. The district court informed the jury that the
damages would be reduced by the percentage of the plaintiff's
contributory negligence, rejecting the contention that the jury
should not be informed of the legal consequences of their
answers:
There is some authority that, when a
judge requires a jury to return a special
verdict, under F.R.Civ.P. 49(a), the jury
should not be informed of the legal
consequences of [its] answers. But the
better view is that a jury is entitled to
know what effect its decision will have. The
jury is not to be set loose in a maze of
factual questions, to be answered without
intelligent awareness of the consequences.
One of the purposes of the jury system is to
temper the strict application of law to
facts, and thus bring to the administration
of justice a common sense lay approach, a
purpose ill-served by relegating the jury to
a role of determining facts in vacuo,
ignorant of the significance of [its]
findings.
In Seppi v. Betty,
579 P.2d 683, 691-92 (Idaho 1978), the
Idaho Supreme Court abandoned its earlier practice prohibiting
ultimate outcome charges in cases submitted on special verdicts,
holding that such charges would be permissible in comparative
negligence litigation. In the course of its opinion, the court
noted the growing trend in favor of ultimate outcome charges, and
observed that several states, namely Colorado, Minnesota, North
Dakota, Texas and Wyoming, had adopted statutes or rule
amendments that modified earlier decisions precluding the use of
such charges. Id. at 691-92.
In addition to this Court's decision in Roman, supra, 82
N.J. at 346-47, a number of other state courts have authorized
ultimate outcome charges in comparative negligence cases
submitted on special verdicts. See, e.g., Mountain Mobile Mix,
supra, 660 P.
2d at 887; LaFleur v. Farmington River Power Co.,
445 A.2d 924, 925 n.2 (Conn. 1982); Kaeo v. Davis,
719 P.2d 387,
396 (Haw. 1986); Thomas v. Board of Twp. Trustees,
582 P.2d 271,
280 (Kan. 1978); Rosenthal v. Kolars,
231 N.W.2d 285, 287 n.2
(Minn. 1975); Verner v. Nevada Power Co.,
706 P.2d 147, 151 (Nev.
1985); Johnson v. Safeway Stores, Inc.,
568 P.2d 908, 914 (Wyo.
1977).
A relatively recent opinion of the Ninth Circuit Court of
Appeals presents the issue in a context most analogous to the
case before us. In In re Aircrash in Bali, Indonesia,
871 F.2d 812 (1989), Pan American World Airways, Inc. (Pan Am) appealed an
adverse jury verdict rendered after a trial involving the crash
of a Pan Am flight in which the crew and all the passengers were
killed. Based on a prior ruling in the same litigation, In re
Aircrash in Bali, Indonesia,
684 F.2d 1301, 1313 (9th Cir. 1982),
it was established that the trial would be governed by the
provisions of the Warsaw Convention that limit damages in airline
crashes to $75,000 per passenger except where the crash resulted
from willful misconduct or where the passenger was not given
adequate notice of the Convention's damages limitation. On
appeal, Pan Am contended that the district court erred in
instructing the jury that if it found against plaintiffs on the
issue of willful misconduct the plaintiffs would be restricted by
the damages limitation of the convention. In its answers to
special interrogatories, the jury determined that Pan Am's
management was liable for willful misconduct.
In sustaining the propriety of the district court's
instruction, the Court of Appeals observed:
Since the jury was charged with deciding
whether Pan Am gave the passengers adequate
notice of the damages limitation of the
Warsaw Convention, the jury obviously had to
be informed about that limitation. . . . If
the jury had not been informed of the
connection between the plaintiffs' arguments
that Pan Am committed willful misconduct and
the damages limitation, the jury would have
deduced a connection on its own and it might
have been erroneous. The district judge did
not abuse his discretion when he decided to
eliminate the risk that the jury would deduce
an inaccurate connection between a finding of
willful misconduct and the damages
limitation. See 9 Wright & Miller, Federal
Practice and Procedure § 2509, at 513 (1971)
("an attempt to keep the jury in the dark as
to the effect of its answers is likely to be
unavailing, and there is always the danger
that the jury will guess wrong about the law,
and may shape its answers to the special
verdicts, contrary to its actual beliefs, in
a mistaken attempt to ensure the result it
deems desirable").
[In re Aircrash, supra, 871 F.
2d at 815.]
Another federal court ruling reversing a jury verdict because the trial court failed to inform the jury concerning plaintiff's actual financial stake in the outcome demonstrates that ultimate outcome charges need not be avoided merely because they require spec