Michelle stated that, at various times, she was taking Percocet, routinely using seventy-five-microgram Duragesic patches, or consuming at least ten alcoholic drinks a day. In an unpublished opinion, a split three-judge panel of the Appellate Division reversed and remanded for a new trial because the trial court incorrectly charged the jury on the law. When an intervening act was or should have been reasonably foreseeable to the original defendant, it is referred to as a superseding cause (or act) and absolves them of responsibility. If the artist sues the farmer for damage to the sculpture, the farmer may argue that the tornado intervened between her negligent storage and the damage, relieving her from any liability. Model Jury Charge (Civil) 6.14; see alsoDavis v. Brooks, 280 N.J. Super.406, 412 (App. 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 . For example, suppose that a person who needs surgery because of prior malpractice then gets an infection due to inadequate antiseptic technique. JUSTICE ALBIN delivered the opinion of the Court. U.S. Govt. Ibid.(pp. Based on this instruction, the trial court ruled out comparative negligence as a defense. State v. Imokawa, 194 Wn.2d 391, 450 P.3d 159 (2019). That was not done here. So, for example, the physician who fails to timely detect a progressive disease, such as cancer, is only liable for the damages caused by the increasedrisk of harm resulting from her negligence. Had the court attempted to do so, the inadvisability of giving the charge might have become apparent. Moreover, the Scafidicharge here became blurred with the charge on avoidable consequences and superseding/intervening causation. Because Michelle s mental health appointment was two weeks away, Dr. Picciano decided to provide a steady level of immediate relief for her back pain by prescribing ten seventy-five-microgram Duragesic patches -- a quantity that would last for thirty days. E. Drew Britcherargued the cause for amicuscuriaeNew Jersey Association for Justice (Britcher, Leone, & Roth, attorneys; Mr. Britcherand Kristen B. Miller, on the brief). Id.at 438. This article will discuss all three defenses, when they're used, and how they're established. Unlike comparative negligence, avoidable consequences is not a defense to liability and serves only to mitigate damages. SeeReynolds v. Gonzalez, 172 N.J.266, 288-89 (2002) (reversing medical-malpractice verdict for trial court s failure to tailor its instruction to the theories and facts presented ). Seeid.at 108-09. In support of its ruling, the court cited Ostrowski v. Azzara, 111 N.J.429, 441 (1988), which held that trial courts must avoid the indiscriminate application of the doctrine of comparative negligence (with its fifty percent qualifier for recovery) when the doctrines of avoidable consequences or preexisting condition apply. Model Jury Charge (Civil) 6.13. Therefore, any possible defense you might want the court to consider at trial should be in your Answer. In this case, plaintiff and defendants presented conflicting expert testimony concerning whether Dr. Picciano deviated from the accepted standard of care. The Court held that harm was not foreseeable and therefore the storeowner was not liable. In contrast, the substantial factor test is given when there are concurrent causes potentially capable of producing the harm or injury. A superseding cause, then, is an intervening act that is sufficient in law to shift responsibility for the injury in question from the defendant to a third party or a natural occurrence. The complaint in this medical malpractice action alleges that the physician breached the governing duty of care by failing to protect a patient with a history of alcohol and drug abuse from self-injury. Dr. Russo also explained that after Michelle s episode of binge drinking and her hospitalization for pathological intoxication, Dr. Picciano should have engaged Mrs. Komlodi to assist in keeping Michelle from accessing the prescribed Duragesic. Das v. Thani, 171 N.J.518, 527 (2002) (quoting State v. Afanador, 151 N.J.41, 54 (1997)). (pp. https://legal-dictionary.thefreedictionary.com/Superseding+intervening+force, Dictionary, Encyclopedia and Thesaurus - The Free Dictionary, the webmaster's page for free fun content, Supoenaed, mother and son do not want to testify, Supplemental Brief for the Board of Education, Topeka, Kansas. Q: The rule at our ASU is that a patient who received sedation should not drive after discharge, so patients are required to either have a ride or we will call a cab for them. An intervening cause is an event that occurs after the defendants negligence that contributes to the plaintiffs harm. (Five patches cost $250 whereas ten cost $500.) This appeal concerns the propriety of a jury charge on causation in a medical malpractice action. You can explore additional available newsletters here. "Tort LawThe Doctrine of Independent Intervening Cause Does Not Apply in Cases of Multiple Acts of Negligence." The issue this appeal presented to the Supreme Court centered on the jurys no-cause verdict and various portions of the trial court's charge on causation. Id.at 455. B. In that situation the injured person could therefore sue the original doctor for the malpractice that put them in the ambulance but would have to sue the other driver for their further injuries. A tortious act is the same as a contract dispute. tort damages. As is evident from the model charge, in instructing the jury, the trial court is expected to review facts relevant to the charge and to identify the preexisting disease or condition. At trial the issue of the farmer's liability is a Question of Fact to be determined by the judge or jury. At the time that she treated Michelle, Dr. Picciano also was aware that the Duragesic patch could be cut open and the fentanyl directly accessed by an addict. 8, 2015) ("speculative damages[] is a defense to damages, not an affirmative defense") As for the contention that Plaintiff's damages are unrecoverable, Defendant must state in plain terms the reason why it believes the damages are unrecoverable, in order to put Plaintiff on notice. Related to Intervening Cause: Superseding cause Intervening Cause A separate act or omission that breaks the direct connection between the defendant's actions and an injury or loss to another person, and may relieve the defendant of liability for the injury or loss. She also told Dr. Patel that Michelle required psychiatric intervention and that he should try to transfer her to an inpatient unit. The Duragesic patch is not intended for the management of mild or intermittent pain that can otherwise be managed by lesser means, but rather for the treatment of chronic pain that does not respond to Percocet, a medication for the relief of moderate to moderately severe pain. Yes, a defendant may argue that the plaintiffs actions superseded any previous events that would have affected responsibility. intervening cause is a reasonably foreseeable result of a defendant's initial act, " ' "the intervening act is 'dependent' and not a superseding cause, and will not relieve [the] defendant of liability." ' " (Cervantes, supra, 26 Cal.4th at p. 871. Nicholas v. Mynster, 213 N.J.463, 479 (2013) (noting that in malpractice cases generally an expert must have the same type of practice and possess the same credentials, as applicable, as the defendant health care provider (quoting Assem. 584, 593, 999 P.2d 42 (2000); State v. Hursh, 77 Wn.App. . Search Legal Terms and Definitions. (See: intervening cause, proximate cause). Was there common knowledge among family care practitioners about the potential abuses of Duragesic patches at the times relevant in this case? Instead, the court gave examples completely unrelated to the proofs. Your email address will not be published. Usually, Foreseeability Is the Key. Dr. Picciano understood the medical uses and the potential abuse of the Duragesic patch. The court s decision not to charge comparative negligence was not appealed. Plaintiff also claims that the but for instruction was improper in a case where there are concurrent or intervening causes of harm that do not constitute pre-existing medical conditions that the defendant is treating. In the typical Scafidicase, the plaintiff seeks treatment for a preexisting condition, and the physician, through negligence, either fails to diagnose or improperly treats the condition, causing it to worsen and sometimes causing the plaintiff to lose the opportunity to make a recovery. A superseding cause is an unforeseeable intervening cause. The jury here was instructed to consider whether, based on the patient s preexisting condition, prescribing the Duragesic patch increased the risk of harm to the patient and whether it was a substantial factor in causing the ultimate injury. Since the artist made the sculpture for outdoor display, damage to the sculpture from outdoor storage may be considered unforeseeable. Defendants basic argument in summation was that Michelle chose to misuse the Duragesic afterDr. Scafidi, supra, 119 N.J.at 112. At some point, the plaintiff was placed in a room, the door was closed, and she was not monitored, contrary to hospital policy. Moreover, he stated that not until 2005 did it become general medical knowledge that addicts were consuming Duragesic patches orally. Thus, whether a particular risk is foreseeable and whether the act of another is one of the normal incidents of the risk created are issues for the jury. Sign up for our free summaries and get the latest delivered directly to you. The Court explained that normally all the medical consequences that flow from an original compensable injury are compensable but that a later injury is not compensable if it is the result of an independent intervening cause, such as the Carpenters own conduct. If you find that plaintiff has established defendant s negligence, then defendant must prove by a preponderance of the evidence that Michelle, in light of her health or mental condition, could reasonably have acted to avoid or mitigate injury. EMS brought him to the ER and he was fine and Risk Management has already told me that I have no issue here because this all occurred after I signed him out to Recovery, but Im actually not clear on how the hospital could be on the hook if he had had a bad outcome since he broke the rule. intentional torts of third persons (i.e., assault, battery, false imprisonment). Mrs. Komlodi responded that she did not and told her daughter to wait until they returned home. The injured passenger is suing the bus firm for failing to provide a secure area for passengers to depart. nder the [vehicular homicide and vehicular assault] statutes, the absence of a superseding intervening cause is not an element of vehicular homicide or vehicular assault". LegalMatch Call You Recently? State v . SeeRappaport, supra, 31 N.J.at 203. Your In other words, an unforeseeable or improbable intervening cause will constitute a superseding cause, and will allow a defendant to escape liability. 119 N.J.at 108. 29-33), 3. Library, Bankruptcy ); id.at 437 (stating that under comparative negligence plaintiff is barred from receiving recovery when her fault is greater than defendant s); id.at 443 (stating that under avoidable consequences plaintiff s recovery is reduced by degree of her fault as expressed by percentage); Cowan, supra, 111 N.J.at 465 (stating that plaintiff s volitional act may constitute superseding/intervening cause barring recovery). The doctrine applies only when the intervening cause (1) was enough by itself to cause the injury, (2) was not reasonably foreseeable, and (3) was not a normal response to initial conduct causing the injury. However, if the farmer lives in Kansas, where tornadoes may be expected, and stored the sculpture outside without tethers during tornado season, the judge or jury may find that she should have anticipated the tornado and its damaging effects, and thus is liable for the damage. If an event occurs following a defendant's act that is unforeseeable and causes an injury, this may cut off the liability for the defendant's act. Certain defences will provide a complete defence, such as consent and the voluntary assumption of risk, whereas others will merely serve to reduce the damages awarded (such as contributory negligence). SeeVerdicchio, supra, 179 N.J.at 23; Evers v. Dollinger, 95 N.J.399, 406 (1983) (reversing judgment in favor of defendant because evidence that tumor increased in size satisfied plaintiff s requirement to prove damages). Michelle was taken to Raritan Bay Medical Center and placed on a ventilator for several days. Law Practice, Attorney (this may not be the same place you live), Faulty/Defective Products/Services (Auto, Drug), Investments (Annuities, Securities, IPOs), Online Law You're all set! 1. (This may not be the same place you live). It was Dr. Picciano s assessment that Michelle would not use illicit drugs or alcohol if she were on a Duragesic regimen of pain relief. (pp. Intervening causes that are foreseeable or the normal incidents of the risk created, however, will not break the chain of causation and relieve a defendant of liability. Foreseeability is a constituent part of proximate cause. Michelle s mother, as guardian for her incapacitated daughter, filed a medical malpractice action against Dr. Picciano and her employer. A superseding cause is different from an intervening cause. An intervening cause relieves a defendant of liability only if it would not have been foreseeable to a reasonable person, and only if damage resulting from the defendant's own actions would not have been foreseeable to a reasonable person. The court submitted to the jury a verdict sheet with ten interrogatory questions broken down into four categories: responsibility, allocation of responsibility, damages, and other factors. A superseding cause typically absolves the original defendant of responsibility, in contrast to an intervening cause, which does not. This is a matter of fairness to the defendant. Youll gain a greater understanding of your situation and its potential repercussions. Accordingly, the no-cause verdict is vacated, and a new trial is ordered. In this event, the second bracketed paragraph should be used. However, if either the event itself or the injury it caused could have been reasonably foreseen, then it doesn't count. Id.at 112. In this case, the jury found that Dr. Picciano deviated from the applicable standard of care. At the charge conference, plaintiff argued that the court should not instruct the jury on apportionment of fault or apportionment of damages between plaintiff and defendants. As a result of the fentanyl overdose, Michelle went into respiratory and cardiac distress, causing a lack of oxygen to the brain. This affirmative defense is around because allowing the plaintiff to do this would be unfair to the defendant. We come to that conclusion for several reasons. A but for charge is appropriate when there is only one potential cause of the harm or injury. For example: Daniel fails to properly repair Pamela's brakes. As with all jury instructions, the trial judge should tailor the charge to the facts and the parties arguments. Superseding cause is an affirmative defense that must be proved by the defendant. To address this scenario, we have held that a jury must decide whether any negligent treatment increased the risk of harm posed by a preexistent condition and, if so, whetherthe increased risk was a substantial factor in producing the ultimate result. A substantial factor is one that is not a remote, trivial or inconsequential cause. The content of this site is intended for healthcare professionals. When a patient is treated for a preexisting condition and a physician s negligence worsens that condition, it may be difficult to identify and prove the precise injury caused by the physician. Another doctrine -- the one specifically at issue in this case -- provides a limitation on liability or damages in a medical malpractice action when a defendant-physician fails to timely treat or diagnose a preexisting disease or condition, thus increasing the risk of harm to the plaintiff. In certain jurisdictions, intervening causes that remove liability are referred to as superseding causes. 2004). Michelle asked her mother if she had scissors. Dr. Picciano rejected the possibility that Michelle was engaged in drug-seeking behavior. On appeal the Court of Appeals of the District of Columbia affirmed. We have held that a psychiatrist treating a suicidal patient may have a duty to protect the patient from self-harm. In addition, even if the Scafidicharge were appropriate, the trial court improperly failed to tailor the legal theories and facts of this case to the law on preexisting conditions or to identify the specific preexisting condition or disease at issue. The parties do not truly dispute that a duty of care to prevent self-inflicted harm arises when there is a foreseeable risk that plaintiff s condition, as it [is] known to defendants, include[s] the danger that she [will] injure herself. In contrast to comparative negligence, the doctrine of avoidable consequences normally comes into action when the [plaintiff s] carelessness occurs afterthe defendant s legal wrong has been committed. The patient was known to abuse alcohol and drugs. . Moreover, Dr. Picciano understood that the use of the patch with other depressants, such as alcohol, could fatally compromise the central nervous system. 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The jury, as the ultimate trier of fact, was presented with the task of deciding exceedingly complex issues of liability and apportionment of damages. The main focus is on the propriety of the charge on causation. Because it was not anticipated that the other party would remove the sign, their acts serve as a superseding cause, absolving the store and the employee of responsibility. ); Gilborges v. Wallace, 78 N.J.342, 349 (1978) ( [W]here there is a dissent in the Appellate Division, the scope of the appeal . . This unusual reaction may be deemed an extraordinary intervening cause that relieves the defendant of liability. The patients conduct therefore did not interrupt the causation from the hospitals negligence in failing to keep an adequate eye on patients who should not leave and drive. Use this instruction only when there is evidence of an intervening cause such that defendant's driving would not be a proximate cause of the death or injury. Cowan, supra, 111 N.J.at 465. In his opinion, [t]he jury s verdict was based on the evidence and on correct instructions as a whole, and accordingly there was no justification to reverse the no-cause verdict. An act is foreseeable when a reasonably prudent, similarly situated person would anticipate a risk that her conduct would cause injury or harm to another person. For example, suppose the defendant poked an associate in the chest during a friendly discussion around a watercooler, and the associate subsequently jumped out a window. These jurisdictions simply ask whether the intervening cause is sufficient to relieve a defendant of liability. Superseding causes allow the defendant to avoid liability because they are evidence that the defendant's breach of duty was not the proximate cause of the plaintiff's injuries. The most common intervening causes cited by defendants are natural forces and negligent human conduct.
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