In its unpublished decision filed on April 18, 2018, the Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) reversed the defense verdict in a New Jersey medical malpractice case and remanded the case for a new trial, finding, in part, that there were material flaws in the jury instructions and the verdict sheet that were likely to have misguided the jurors, thereby producing an inconsistent and unsound verdict.
The Underlying Facts
The New Jersey medical malpractice case was brought against various medical professionals who were involved in the labor and delivery of the plaintiffs’ baby. The baby was delivered vaginally despite the baby’s breech presentation. The baby appeared to be in distress during the extended delivery, including evidence of meconium-stained amniotic fluid and the baby’s rising and falling heart rate, and the baby was hypotonic (no tone) at delivery with thickened meconium. The baby was not moving or breathing when delivered, and had poor color.
The New Jersey medical malpractice plaintiffs alleged that various medical professionals during labor and delivery, and following delivery, had breached the standard of care in treating and caring for the baby, resulting in the baby suffering profound and permanent disabilities associated with her brain damage.
“But For” vs. Substantial Factor Causation
The New Jersey Appellate Court stated that in a more routine malpractice case in which the plaintiff’s injury can be traced to a single cause, the traditional “but for” causation test, i.e., assessing whether the injury would not have occurred but for the wrongful act, applies to the question of causation. However, the “but for” test can be unsuitable where one or more actions operate to bring about a certain result, and any one of them operating alone would be sufficient. For such contexts, an alternate “substantial factor” test is appropriate.
Under the substantial factor test of causation in a medical malpractice case, the fact-finder must decide whether the defendant’s deviation increased a patient’s risk of harm, or diminished the chance of survival, and whether such an increased risk was a substantial factor in producing the ultimate harm. When there is evidence that a defendant’s negligent act or omission increased the risk of harm to the plaintiff, and that the harm was sustained, it becomes a question for the jury as to whether or not that increased risk was a substantial factor in producing the ultimate result.
In the situation where a patient was treated for a preexisting condition, and a physician’s negligence allegedly worsened that condition, it may be difficult to identify and prove the precise injury caused solely by the physician. The jury is first asked to verify, as a reasonable medical probability, that the deviation increased the risk of harm from the pre-existent condition. Assuming that the jury determines that deviation increased the risk of harm from the pre-existent condition, then the “substantial factor” test of causation is used. Once a jury determines that a plaintiff has satisfied these inquiries about increased risks and substantial factors, it must next apportion damages.
In the medical malpractice case that the New Jersey Appellate Court was deciding, at least two potential preexisting conditions were involved: first, at some point between the defendant OB’s examinations of the pregnant woman one day apart, the baby, who apparently had been in a vertex position, moved into a breech position, making a vaginal delivery more complicated and should have alerted the defendants to exercise greater precautions in the hours leading up to the birth; second, the ongoing hypoxia likewise was a preexisting condition that arguably required different measures to assure a successful delivery. There is evidence that both of these preexisting conditions were manifest before the defendant OB delivered the child.
The New Jersey Appellate Court held that the appropriate jury charge should have been given with respect to one of the nurse defendants and not confined to one of the physician defendants.
The New Jersey Appellate Court further held that the trial court erred in having the jury consider principles of superseding cause in the manner presented on the verdict form.
A superseding or intervening act is one that breaks the chain of causation linking a defendant’s wrongful act and the harm suffered by a plaintiff. Such an act is essentially the immediate or sole cause of the injury or harm. However, superseding cause generally focuses upon whether the intervening cause was so closely connected with the defendant’s negligent conduct that the defendant’s responsibility should not be terminated (i.e., whether the intervening cause was sufficiently foreseeable).
The failure of a third party to act to prevent harm threatened to another by an actor’s negligent conduct is not a superseding cause unless, because of the lapse of time or otherwise, the actor’s negligent conduct is found to have shifted from the actor to a third party. Ordinarily, if the third person is under a duty to the other to take such action, his failure to do so will subject him to liability for his own negligence but his failure to perform his duty does not relieve the original actor of liability for the results of his own negligence. However, in “exceptional cases,” a court may find that the entire duty and responsibility for the prevention of harm has passed to a third person as a superseding cause when by reason of the interplay of factors, the court finds that full responsibility for control of the situation and prevention of the threatened harm has passed to the third person; his failure to act is then a superseding cause, which will relieve the original actor of liability.
The New Jersey Appellate Court held that the medical malpractice case it was deciding is one in which the verdict sheet critically “blurred” the concept of a superseding cause with other key concepts relating to causation. The result was a jury verdict that is hopelessly inconsistent. The superseding cause, by its very nature, renders all other causes insubstantial. The jury easily could have been confused by this, as shown by their simultaneous and inconsistent findings that the defendant nurse was a “substantial factor” in producing the harm to the baby and that the defendant OB’s conduct was a superseding (i.e., the “sole”) cause. The jury should not have been allowed to decide the “substantial factor” question if they had determined in their deliberations that the defendant OB’s conduct was totally to blame as a superseding cause. If the causal link to the defendant nurse was completely eliminated, then that link cannot be substantial.
The New Jersey Appellate Court stated that the jury charge should have explained this interplay and the verdict form directions should have avoided this inconsistent outcome. The New Jersey Appellate Court held: “we must vacate the verdict and order a new trial, at which appropriate instructions and verdict sheet should be provided, consistent with our opinion.”
The New Jersey Appellate Court also held that the trial court’s mistaken assumption that it had an obligation to advise the defendant OB, who had settled the claims against him before trial and therefore was no longer a party in the action, of his Fifth Amendment rights and to report him to authorities regarding his alleged attempt to shred his medical order triggered a chain of events that manifestly prejudiced plaintiffs, which stifled their ability to explore critical factual matters through the OB’s otherwise anticipated testimony.
Source C.A. v. Bentolila, Docket No. A-5215-14T4.
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