Court explained that expert testimony would normally be required to prove the increased risk. 462 The second prong of the analysis is whether the substantially increased risk would cause a reasonably prudent patient to decline the procedure. If the defendant s lack of experience did not materially increase the risk from the operation then the alleged misrepresentation could not cause a reasonably prudent patient in plaintiff s position to decline consent to the procedure. 463 The Court concluded that a significant misrepresentation concerning the physician s professional experience might be material to a reasonably prudent patient in deciding whether to permit the doctor to operate. However, the plaintiff must submit expert testimony that the defendant s lack of qualifications or experience significantly increased the risk of the operation. The lack of experience would have to significantly increase the risk of the operation in order to be material to a reasonably prudent patient. Finally, in order to establish proximate causation, the plaintiff must convince a jury that the substantially increased risk would have caused a reasonably prudent patient not to consent to the procedure. 4-11 PRACTICE POINTERS 1. Damages are subject to proof of reasonable medical probability. In Schrantz v. Luancing and Bondi v. Pole, the courts explained that [r]easonable medical certainty or probability refers to the general consensus of recognized medical thought and opinion concerning the probabilities of conditions in the future based on present conditions. 464 The permanency of damages must also meet this standard. 465 It is incumbent on the attorney to explain and define 462. Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 558 (2002). 463. Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 558 (2002). 464. Schrantz v. Luancing, 218 N.J. Super. 434, 439 (Law Div. 1986); Bondi v. Pole, 246 N.J. Super. 236, 239-49 (App. Div. 1991) 465. See Tierney v. St. Michael s Med. Ctr., 214 N.J. Super. 27, 33 (App. Div. 1986). 370 New Jersey Medical Malpractice law 2017 NJ MedMal_Ch04_2016.indd 370
PRACTICE POINTERS 4-11 the legal significance of the term reasonable degree of medical probability to all experts. 2. In cases involving a pre-existing condition, the plaintiff must prove that the defendant s negligence increased the risk and was a substantial factor in causing the harm. Model Jury Charge 5.50E, Pre-Existing Condition Increased Risk/Loss of Chance Proximate Cause instructs that the plaintiff has the burden of proving in a medical malpractice case that the defendant s negligence was, to a reasonable degree of medical probability, a proximate cause of harm to the plaintiff. 3. A pre-existing condition is one which by itself had a risk of causing the plaintiff the ultimate harm. Model Jury Charge 5.50E, Pre-Existing Condition Increased Risk/Loss of Chance Proximate Cause defines a pre-existing condition as one which, by itself, had a risk of causing the plaintiff the harm he/she ultimately experienced in this case. In Holdsworth v. Galler, the Appellate Division explained that a pre-existing condition is something that is treated in order to alter or delay the outcome attributable to the condition. 466 4. In cases involving a pre-existing condition, once the plaintiff submits evidence that the defendant s negligence increased the risk and was a substantial factor in causing the harm, the burden of proof shifts to the defendant to apportion damages. Model Jury Charge 5.50E, Pre-Existing Condition Increased Risk/Loss of Chance Proximate Cause provides, In cases where the defendant s deviation accelerated or worsened the plaintiff s pre-existing condition, the defendant is responsible for all of the plaintiff s injuries unless the defendant is able to reasonably apportion the damages. If the 466. Holdsworth v. Galler, 345 N.J. Super. 294, 300 (App. Div. 2001). New Jersey Medical Malpractice law 2017 371 NJ MedMal_Ch04_2016.indd 371
injuries can be so apportioned, then the defendant is only responsible for the amount of ultimate harm caused by the deviation. 5. A substantial factor has been defined as anything that is not merely remotely or insignificantly related to the ultimate harm or injury. Model Jury Charge 5.50E, Pre-Existing Condition Increased Risk/Loss of Chance Proximate Cause defines substantial factor as follows: If the deviation was only remotely or insignificantly related to the ultimate harm or injury, then the deviation does not constitute a substantial factor. However, a footnote to the Model Jury charge explains, The Court may further explain to the jury in the charge at this point, that any percentage increase in the risk of harm can be considered by the jury to be substantial. 467 It is critical that this point be explained to the jury. 468 6. The trial court must give an ultimate outcome instruction when giving a pre-existing condition charge. In Fischer v. Canario, the Supreme Court concluded, 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. 469 467. Model Jury Charge 5.50E, Pre-Existing Condition Increased Risk/Loss of Chance Proximate Cause, n.2 (emphasis added). 468. See also Dubak v. Burdette Tomlin Mem l Hosp., 233 N.J. Super. 441, 452 (App. Div. 1989) (10% increase in the risk of harm satisfied the substantial factor test); Velazquez v. Jiminez, 336 N.J. Super. 10 (App. Div. 2000), aff d, 172 N.J. 240 (2002) (3% increase in the risk of harm satisfied the substantial factor test). 469. Fischer v. Canario, 143 N.J. 235, 253 (1996). 372 New Jersey Medical Malpractice law 2017 NJ MedMal_Ch04_2016.indd 372
PRACTICE POINTERS 4-11 7. Pursuant to the doctrine of avoidable consequences, the plaintiff s damages may be reduced or eliminated if the defendant can prove that the plaintiff failed to comply with the post-negligence instructions of the health care provider. In Ostrowski v. Azzara, the Court explained that the patient s pre-treatment health habits may never be considered as evidence of comparative fault. However, once treatment has been rendered [t]he law can justly expect the patient to cooperate with the health care provider in their mutual interests. Hence, we approve in this context of post-treatment conduct submission to the jury of the question whether the just mitigation or apportionment of damages may be expressed in terms of the patient s fault. 470 The distinction between the two concepts is that the the patient s fault will not be a bar to recovery except to the extent that her fault caused the damages. 471 Finally, and significantly, the Court imposed the burden of proving what damages were avoidable on the health care provider. 472 8. A defendant may meet his burden of proof on allocation through the use of the plaintiff s expert. A defendant is only responsible for the amount of ultimate harm proximately caused by the deviation. If that harm can be apportioned, it is up to the defendant to prove to a reasonable degree of medical probability that apportionment or allocation. This burden can be met through the defense expert or through the plaintiff s own expert who concedes that some certain percentage of injury would have happened even in the absence of negligence. 470. Ostrowski v. Azzara, 111 N.J. 429, 445-46 (1988). 471. Ostrowski v. Azzara, 111 N.J. 429, 446 (1988). 472. Ostrowski v. Azzara, 111 N.J. 429, 446-47 (1988). New Jersey Medical Malpractice law 2017 373 NJ MedMal_Ch04_2016.indd 373
9. Be aware that having an expert testify that all the harm would have happened irrespective of any negligence may not be sufficient to meet the defendant s burden. Some cases have suggested that defense expert testimony that the alleged deviation caused no harm, or, conversely that 100% of the harm would have happened irrespective of the alleged deviation, may not be sufficient. It is recommended that the defense expert provide some numerical percentage to meet this burden of proof. 374 New Jersey Medical Malpractice law 2017 NJ MedMal_Ch04_2016.indd 374