Judy Komlodi v. Anne Picciano, M.D. (071301)

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 interest of brevity, portions of any opinion

may not have been summarized).

Judy Komlodi v. Anne Picciano, M.D. (A-13-12) (071301)

Argued October 7, 2013 -- Decided May 20, 2014

ALBIN, J., writing for a unanimous Court.

This appeal concerns the propriety of a jury charge on causation in a medical malpractice action.

Defendant Dr. Anne Picciano prescribed a Duragesic patch to treat Michelle Komlodi, a patient suffering from chronic back

pain who was known to abuse drugs and alcohol. The Duragesic patch is intended to be applied to the outer skin and to release the

powerful pain medication fentanyl over a seventy-two hour period. Michelle orally ingested the Duragesic patch, causing a severe and

permanent brain injury. Michelle’s mother, as guardian for her incapacitated daughter, filed a medical malpractice action against Dr.

Picciano and her employer. The primary focus of the trial was whether Dr. Picciano breached the governing duty of care in prescribing

a Duragesic patch to Michelle, a known abuser of drugs and alcohol, and whether Dr. Picciano, Michelle, or both were substantial

factors in causing Michelle’s injury. The trial court charged the jury on avoidable consequences and superseding/intervening causation,

but not on comparative negligence. The court also provided a preexisting condition charge, also known as a Scafidi1 charge, instructing

the jury 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.

The jury found that plaintiff proved that Dr. Picciano deviated from the applicable standard of care and that the deviation

increased the risk of harm posed by Michelle’s preexisting condition. Because the jury also found that plaintiff did not prove that the

increased risk was a substantial factor in producing Michelle’s medical condition, however, based on the Scafidi charge, Dr. Picciano

did not bear legal fault in causing Michelle’s brain injury. A no-cause verdict was therefore entered in defendants’ favor. In a split

decision, the Appellate Division overturned the verdict and remanded for a new trial. The majority found that the trial court erred by

providing the jury a Scafidi charge and a superseding/intervening cause charge, and by including the concept of “but for” causation in

its proximate cause instruction. Judge Ashrafi, dissenting, disagreed that the Scafidi charge was improper, stating that Michelle’s drug

addiction was irrefutably a preexisting condition that was a proximate cause of her ingestion of the patch causing her brain injury. He

also considered the trial court’s reference to “but for” causation harmless error. 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. Defendants

appealed as of right under Rule 2:2-1(a).

HELD: The trial court erred in providing a preexisting condition jury charge under the circumstances of this case and, even if the

Scafidi charge were appropriate, it suffered from multiple defects. The trial court was correct to charge the jury on avoidable

consequences and superseding/intervening causation, and not comparative negligence, but improperly referenced “but for” causation in

its instruction on proximate cause. Throughout the causation charge, the trial court failed to tailor the complex concepts of causation to

the theories and facts advanced by the parties.

1. To ensure that the jury understands its task of deciding issues of liability and apportionment of damages, the court must provide

accurate, clear, and understandable instructions on the law tailored to the theories and facts of the case. In a medical-malpractice action,

the plaintiff has the burden of proving the relevant standard of care governing the defendant-doctor, a deviation from that standard, an

injury proximately caused by the deviation, and damages suffered from the defendant-doctor’s negligence. In this case, the jury found

that Dr. Picciano deviated from the applicable standard of care. At issue is the propriety of the trial court’s jury charge on causation.

(pp. 26-29)

2. A tortfeasor is generally only liable for the harm she actually caused to the plaintiff. In cases where the plaintiff is responsible for the

harm she suffers, in whole or in part, the doctrines of comparative negligence, avoidable consequences, and superseding/intervening

1

Scafidi v. Seiler, 119 N.J. 93 (1990).

1

causation may serve to absolve or limit the defendant’s liability. The comparative-negligence statute permits recovery, and

apportionment of damages, so long as the plaintiff’s “negligence was not greater than the negligence of the person against whom

recovery is sought.” N.J.S.A. 2A:15-5.1. Thus, if the plaintiff’s negligence is fifty-one percent and defendant’s is forty-nine percent,

the plaintiff receives no recovery. Comparative negligence “comes into action when the injured party’s carelessness occurs before

defendant’s wrong has been committed or concurrently with it.” Ostrowski v. Azzara, 111 N.J. 429, 438 (1988). In contrast, the

doctrine of avoidable consequences applies when a plaintiff’s carelessness that occurs after the defendant’s tortious act causes plaintiff

additional harm. Id. at 438, 441. Unlike comparative negligence, avoidable consequences is not a defense to liability and serves only to

mitigate damages. In Ostrowski, the Court 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.” Id. at 441. In the present case, an avoidable consequences jury charge without a comparative negligence charge was

appropriate because plaintiff ingested the Duragesic patch after Dr. Picciano allegedly violated the standard of care by prescribing the

patch. (pp. 29-33)

3. 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. To address this scenario, in Scafidi the Court held that a jury must decide

whether any “negligent treatment increased the risk of harm posed by a preexistent condition” and, if so, “whether the increased risk

was a substantial factor in producing the ultimate result.” 119 N.J. at 108. In the typical Scafidi case, the plaintiff seeks treatment for a

preexisting condition and the physician negligently fails to diagnose or treat the condition, causing the preexisting condition to progress

and worsen. The amount of damages caused by the aggravation of the preexisting condition due to the physician’s negligence is “the

value of the lost chance of recovery.” Id. at 112. Unlike the doctrines of comparative negligence, avoidable consequences, and

superseding/intervening causation, Scafidi-type cases generally do not implicate fault on the part of the plaintiff. Here, it is Michelle’s

failure to properly use the Duragesic patch after Dr. Picciano’s alleged negligence that is at issue. Because the Scafidi charge was used

to allocate fault, not just damages, it served as a substitute for the comparative-fault charge -- without the fifty-one percent fault bar.

The Scafidi charge also had the capacity to confuse the jury because it became blurred with the charge on avoidable consequences and

superseding/intervening cause. In addition, even if the Scafidi charge 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 misapplication of the Scafidi charge requires a remand for a new trial. (pp. 33-38)

4. Although the panel majority was correct in asserting that “if Michelle’s deliberate act was foreseeable, then it was not a superseding

cause,” that is not a sufficient reason for not instructing the jury on superseding/intervening cause. Foreseeability is a constituent part of

proximate cause. If an injury is not a foreseeable consequence of a person’s act, then a negligence suit cannot prevail. A superseding or

intervening act is one that breaks the “chain of causation” linking a defendant’s wrongful act and an injury suffered by a plaintiff.

Cowan v. Doering, 111 N.J. 451, 465 (1988). 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. Model Jury Charge (Civil) § 6.14 (Aug. 1999). Thus,

the concepts of foreseeability and superseding/intervening causation are inextricably interrelated and the jury needs to have a full

understanding of both. Although the trial court here was correct to charge the jury on both concepts, it failed to help the jury sort

through the complex issues by molding its charge to the facts of the case. The jury had to determine whether, given Michelle Komlodi’s

medical history of addiction, her oral ingestion of the Duragesic patch was “reasonably foreseeable or was . . . a remote or abnormal

incident of the risk of self-injury that was not otherwise reasonably foreseeable by defendants.” Cowan, 111 N.J. at 465. Intertwined

with that question was whether Michelle’s act was “volitional and not attributable to [her] disorder or condition.” Ibid. (pp. 38-43)

5. The trial court also failed to tailor the avoidable-consequences charge to the legal theories and facts presented. The avoidable-

consequences charge will only be meaningful to a jury hearing this case if it addresses the special circumstances presented here --

plaintiff’s capacity to act reasonably to care for herself in light of her drug and alcohol addiction. To that end, the Court provides a

recommended charge. Finally, the trial court improperly referenced “but for” causation during its instruction on proximate cause. A

“but for” charge is appropriate when there is only one potential cause of the harm or injury. In contrast, the “substantial factor” test is

given when there are concurrent causes potentially capable of producing the harm or injury. The substantial-factor test should be used to

decide proximate cause at the new trial. (pp. 44-48)

The judgment of the Appellate Division is AFFIRMED and MODIFIED, the no-cause verdict is VACATED, and the matter

is REMANDED to the trial court for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and PATTERSON and JUDGES RODRÍGUEZ and CUFF

(both temporarily assigned) join in JUSTICE ALBIN’s opinion.

2

SUPREME COURT OF NEW JERSEY

A-13 September Term 2012

071301

JUDY KOMLODI, as Guardian for

MICHELLE KOMLODI, an

incapacitated person,

Plaintiff-Respondent,

v.

ANNE PICCIANO, M.D. and JFK

MEDICAL CENTER,

Defendants-Appellants.

Argued October 7, 2013 – Decided May 20, 2014

On appeal from the Superior Court, Appellate

Division.

Gary L. Riveles argued the cause for

appellants (Dughi, Hewit & Domalewski,

attorneys).

John B. Collins argued the cause for

respondent (Bongiovanni, Collins & Warden,

attorneys).

E. Drew Britcher argued the cause for amicus

curiae New Jersey Association for Justice

(Britcher, Leone, & Roth, attorneys; Mr.

Britcher and Kristen B. Miller, on the

brief).

JUSTICE ALBIN delivered the opinion of the Court.

In medical malpractice cases, juries are often called on to

sift through mounds of testimonial evidence, including expert

testimony, and to absorb complex legal theories on duty of care

1

and causation. Juries cannot fulfill the difficult task of

rendering a fair and just verdict without accurate, clear, and

understandable instructions on the law. That guidance must be

provided by our trial courts. Our courts must explain how the

legal principles apply to the facts and the parties’ competing

arguments in a charge that is accessible and comprehensible to

citizens not trained in the law. This is not an easy

undertaking, but it is a necessary one.

In the present case, a family-care physician prescribed a

powerful medication, a Duragesic patch, to treat a patient who

suffered from chronic back pain -- a patient who also was known

to abuse alcohol and drugs. The seventy-five-microgram

Duragesic patch is intended to be applied to the outer skin and

to release the drug fentanyl over a seventy-two hour period.

The patch has the potency of eighty Percocet tablets. The

patient orally ingested the Duragesic patch, causing a severe

and permanent brain injury.

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. The central issue in this appeal from

the jury’s no-cause verdict concerns various portions of the

trial court’s charge on causation.

The trial court charged the jury on “preexisting disease or

2

condition,” also known as a Scafidi2 charge. The Scafidi charge

is typically used in medical malpractice cases in which

progressive diseases, such as cancer, are not properly treated

or timely detected and thus the measure of damages is the

patient’s lost chance of recovery. 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. The trial court, however, never

identified in its jury charge the preexisting condition or

related the facts to the law as required by the Model Jury

Charge. This case, moreover, did not involve the ineluctable

progression of a disease on its own. The ultimate harm caused

to the patient was from her own conduct -- whether volitional or

not -- after the physician prescribed the Duragesic. For that

reason, the court also charged the jury on

superseding/intervening causation and avoidable consequences.

The Appellate Division, in a split decision, overturned the

verdict and remanded for a new trial, finding that the trial

court erred in giving the Scafidi charge and, in any event,

failed to articulate for the jury the nature of the preexisting

condition or explain the proofs and parties’ arguments in

relation to the law. The panel majority also determined that

2

Scafidi v. Seiler, 119 N.J. 93 (1990).

3

the court should not have given a superseding/intervening cause

charge because the general charge on foreseeability was

sufficient. Additionally, it pointed out that the court had

mistakenly included the concept of “but for” causation in a case

involving concurrent causes.

We agree with the panel majority that the trial court

misapplied the Scafidi charge. This was not the traditional

lost-chance-of-recovery case. The Scafidi charge, moreover, was

given for a purpose not intended by our preexisting-condition

jurisprudence. Indeed, the defense -- as was made clear in

summation -- was based on superseding/intervening causation and

avoidable consequences, not preexisting condition. We also

agree with the panel majority that, throughout the charge, the

trial court failed to explain the complex concepts of causation

in relation to the proofs and legal theories advanced by the

parties.

We part ways with the panel majority’s conclusion that the

charge on superseding/intervening causation was unnecessary in

light of the general charge on foreseeability. To the contrary,

the superseding/intervening causation charge, if properly given,

had the capacity to focus the jury’s attention on the

differences between the parties’ contentions. Last, the “but

for” causation reference apparently was an inadvertent mistake

to which no objection was made by either party.

4

We therefore affirm and modify the judgment of the

Appellate Division and remand for a new trial.

I.

A.

Plaintiff Judy Komlodi, as guardian for her incapacitated

daughter, Michelle, filed a medical malpractice action against

defendants Dr. Anne Picciano and JFK Medical Center. The

malpractice action arises from the treatment of Michelle by Dr.

Picciano at the hospital’s outpatient and behavioral health

clinic. Dr. Picciano was presented with a thirty-one-year-old

woman who complained of back pain and suffered from depression,

anxiety, and drug and alcohol addiction. Plaintiff alleges that

Dr. Picciano negligently prescribed a Duragesic patch to treat

Michelle’s back pain, disregarding the real prospect that her

drug-addicted daughter would abuse the medication. Indeed,

Michelle orally ingested the contents of the patch, which led to

respiratory arrest and anoxic brain damage, causing severe and

permanent disabilities.

The case was tried to a jury. Here is a summary of the

testimony heard by the jury.

B.

The primary focus of the trial was whether Dr. Picciano

acted with reasonable care in prescribing a Duragesic patch to

5

Michelle and whether Dr. Picciano, Michelle, or both were

substantial factors in causing the tragic outcome. Before

reciting a narrative of events, we begin with a brief

description of the Duragesic patch, as described by Dr. Picciano

with reference to the Physician’s Desk Reference (58th ed.

2004).

The Duragesic patch contains the powerful pain medication

fentanyl, an opioid analgesic, in a gel form. The patch is

attached to the skin and is designed to release seventy-five-

micrograms of fentanyl per hour over a seventy-two-hour period.

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. The seventy-five-microgram Duragesic

patch is the equivalent of eighty Percocets. One side effect of

the Duragesic patch is suppression of the respiratory system.

C.

Dr. Picciano was an employee of JFK Medical Center

specializing in family medicine and held the position of

Associate Director of the Family Practice Center. Michelle had

been Dr. Picciano’s patient as a teenager, at a time when

Michelle was being treated by other doctors for drug addiction

and depression. On June 7, 2004, Mrs. Komlodi, a former

6

nonmedical employee of the Family Practice Center, brought

Michelle, then age thirty-one, to Dr. Picciano for an

examination.

June 7, 2004

That day, Dr. Picciano learned from Michelle that she had

been suffering from lower back pain for six months and had

experienced insomnia, depression, fatigue, anxiety, shortness of

breath, and weight gain. Michelle also told of having “passive

suicidal ideation” and of cutting her wrists two weeks earlier.3

Michelle related that her back pain began after she stopped

using heroin and that she did not find relief by taking Aleve,

Advil, or Tylenol. Michelle admitted that she was self-

medicating with alcohol and drugs, such as Percocet and

Duragesic patches, which were given to her by a friend.

At trial, Dr. Picciano acknowledged that bodily pains,

anxiety, depression, and medication craving are all symptoms of

drug withdrawal. She also acknowledged that an addict’s craving

can overcome her will. Dr. Picciano understood the medical uses

and the potential abuse of the Duragesic patch. Too high a

dose, Dr. Picciano explained, can stop a patient from breathing.

Moreover, Dr. Picciano understood that the use of the patch with

other depressants, such as alcohol, could fatally compromise the

3

Some of this information was related to a nurse and written on

Michelle’s medical chart, which was reviewed by Dr. Picciano.

7

central nervous system. She realized that because the Duragesic

patch might be a medication sought by addicts, it should be

prescribed with caution to those with a history of alcohol or

drug abuse. 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. However, the

Duragesic manufacturer did not explicitly warn of this potential

for its abuse until 2005.

Dr. Picciano ordered an x-ray, seeking to determine the

source of Michelle’s back pain, and blood work. Given

Michelle’s revelations, she also advised Michelle to contact

Rutgers Behavioral Health. No medications were prescribed.

Three days later, Michelle’s blood-test results suggested that

she might have hepatitis C, a disease that poses a serious

danger to the liver.

June 18, 2004

On June 18, Mrs. Komlodi informed Dr. Picciano that

Michelle did not have insurance coverage for Rutgers Behavioral

Health and that Michelle was scheduled for an appointment at JFK

Behavioral Health Center on July 21 -- more than a month later.

Mrs. Komlodi expressed concern that, in the intervening month,

Michelle needed medication to treat her depression. Dr.

Picciano knew that a patient who suffers from depression and

presents a “complicated history with addiction” needs

8

“comprehensive care from a mental health facility.”

Nevertheless, she “reluctantly” agreed to prescribe the anti-

depressant Zoloft as a bridge until Michelle’s mental health

appointment. Dr. Picciano arranged for Mrs. Komlodi to hold the

pills and give her daughter only one-half a pill every day for

the first week.

July 22, 2004

At Michelle’s appointment on July 22, Michelle told Dr.

Picciano that she had missed her appointment at JFK Behavioral

Health Center the day before and had rescheduled it for August

4. She also told Dr. Picciano that she was still experiencing

lower back pain, with the pain registering a “9” on a scale of

one to ten, and that she was taking “Zoloft that she had gotten

as samples.” Michelle had yet to fill the legitimate

prescription of Zoloft given to her by Dr. Picciano. 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.

Dr. Picciano explained at trial that, in light of

Michelle’s hepatitis C diagnosis and the inflammation of her

liver, the continued use of alcohol presented the greatest

immediate threat to her life because of its potential to damage

her liver. Dr. Picciano could not identify whether the source

of Michelle’s back pain was a prior automobile accident or

9

depression and anxiety. Her objective was to stop Michelle from

treating her pain with alcohol. Percocet was ruled out as an

appropriate medication because Michelle might take more than the

prescribed dose or combine it with alcohol. Dr. Picciano was

aware that Michelle was procuring illicit drugs, including

Duragesic patches and Percocet, and abusing alcohol.

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. Dr. Picciano warned Michelle that she could

not drink alcohol while using the Duragesic patch. Michelle

assured Dr. Picciano that she would not. 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. Indeed, Dr.

Picciano would never have prescribed the Duragesic patch for

Michelle if she believed Michelle would continue to use alcohol.

Dr. Picciano rejected the possibility that Michelle was engaged

in drug-seeking behavior.

July 29, 2004

One week after that appointment, Dr. Picciano received a

telephone call from Mrs. Komlodi who stated that Michelle had

been binge drinking and was complaining of severe stomach pains.

Dr. Picciano told Mrs. Komlodi to take her daughter immediately

10

to the emergency room at JFK Medical Center. There, a blood

test revealed that Michelle was pathologically intoxicated. She

registered a 0.36 percent blood alcohol concentration, an amount

four-and-one-half times the legally permissible limit for

driving.4 In addition, her urine tested positive for cocaine.

Michelle advised the emergency room intake unit that she had

been prescribed fentanyl for “outpatient detox,” but had yet to

fill the prescription.

Dr. Picciano called her partner, Dr. Sherrod Patel, who was

the attending physician for her practice group at JFK Medical

Center at that time. Dr. Picciano described Michelle’s case to

Dr. Patel and told him to expect her arrival in the emergency

room. She also told Dr. Patel that Michelle required

psychiatric intervention and that he should try to transfer her

to an inpatient unit. Michelle was admitted to the hospital

overnight and released the next day. Dr. Picciano did not

cancel the Duragesic prescription.

Despite the emergency-room chart indicating that Michelle

had yet to fill the Duragesic prescription, Dr. Picciano not

only assumed that she had filled it, but also that she had begun

using the patches. Dr. Picciano nevertheless made no attempt to

prevent Michelle from continuing to use the prescribed

4

N.J.S.A. 39:4-50(a) (defining “[d]riving while intoxicated” as

“operat[ing] a motor vehicle with a blood alcohol concentration

of 0.08% or more”).

11

Duragesic, nor did she make any notation in Michelle’s chart to

alert her practice group that Michelle had been abusing alcohol.

August 2, 2004

Just four days after her release from the hospital, on the

morning of August 2, Michelle consumed “half a pint of

blackberry red and half a pint of vodka mix.” During the day,

Michelle told her mother that her back was bothering her and

that she had called the pharmacy to fill one half of the

Duragesic prescription. (Five patches cost $250 whereas ten

cost $500.) Mrs. Komlodi drove her daughter to pick up the

prescription. The pharmacist called Dr. Picciano’s office to

request permission to reduce the number of Duragesic patches

from ten to five. A doctor in Dr. Picciano’s practice group

gave approval, dutifully noting this act in Michelle’s chart.

Nothing in the chart warned against prescribing fentanyl.

From the pharmacy, Mrs. Komlodi, her two-year-old

granddaughter, and Michelle drove to a doctor’s office where

Mrs. Komlodi had an appointment. Michelle agreed to babysit the

toddler in the waiting room. In the reception area, Mrs.

Komlodi observed her daughter trying with her teeth to open the

package that held one of the Duragesic patches. Michelle asked

her mother if she had scissors. Mrs. Komlodi responded that she

did not and told her daughter to wait until they returned home.

After Mrs. Komlodi left to meet with her doctor, a receptionist

12

noticed that Michelle had passed out.

Dr. Richard Goldstein found Michelle in the waiting room

unconscious, blue, not breathing, and without a pulse. Dr.

Goldstein and another doctor from the group performed CPR on

Michelle. During mouth-to-mouth resuscitation, Dr. Goldstein

“found a wadded piece of plastic in [Michelle’s] mouth.” It was

a Duragesic patch.

As a result of the fentanyl overdose, Michelle went into

respiratory and cardiac distress, causing a lack of oxygen to

the brain. Michelle was taken to Raritan Bay Medical Center and

placed on a ventilator for several days. Later, she was

released to the JFK Brain Trauma Unit, where she remained for

over a month. Michelle suffers from a permanent brain injury

with physical deficits; severe cognitive, behavioral, and

psychological impairments; and memory loss. At the time of

trial, she was a resident at Universal Institute in Long Branch.

D.

Plaintiff’s expert, Dr. John Russo, a specialist in

internal medicine, testified that Dr. Picciano breached accepted

standards of medical care by prescribing to a patient, known to

be abusing both alcohol and drugs, a Duragesic patch for back

pain without having exhausted typical treatment modalities, such

as physical therapy and anti-inflammatory medication. He also

maintained that Dr. Picciano deviated from those standards by

13

prescribing the Duragesic patch to treat Michelle’s “depression,

anxiety, an eating disorder, alcohol withdrawal or detox from

alcohol or drugs.”

Dr. Russo referred to the Physician’s Desk Reference, which

warns that the “Duragesic should be used with caution in

individuals who have a history of drug or alcohol abuse

especially if . . . they are outside a medically controlled

environment.” He stated that a physician prescribing a

Duragesic patch is expected to know that a patient’s misuse of

the medication can cause respiratory failure and death. Dr.

Russo pointedly stated that the standard of care did not allow a

physician to “give an addict narcotic medications that [she is]

going to abuse.” He noted that even in 2004 there were reports

of addicts orally ingesting the Duragesic patch. 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. Dr. Russo concluded

that Dr. Picciano’s prescribing of the Duragesic patch “was a

significant contributing factor to the anoxic brain injury”

suffered by Michelle.

Defendants’ expert, Dr. Mark Graham, also a specialist in

internal medicine, testified that Dr. Picciano’s treatment of

Michelle “was appropriate and within the standards of medical

14

care.” In his opinion, Dr. Picciano understood that Michelle’s

chronic lower back pain may have been due to “psychiatric

problems” and therefore properly referred her to mental health

counseling rather than to an orthopedist. Dr. Graham believed

that Dr. Picciano made the best choice from “a list of bad

options.” Dr. Picciano knew that Michelle had hepatitis C and

that Michelle’s continued use of alcohol to treat her back pain,

anxiety, and depression would ruin her liver. Dr. Picciano also

knew that if she did nothing Michelle would continue “using

drugs off the streets.” Therefore, to Dr. Graham’s mind, Dr.

Picciano’s decision to prescribe “a long acting opiate similar

to the amount that she was getting from the street” was the

safest choice, provided the medication was used properly.

Moreover, he stated that not until 2005 did it become general

medical knowledge that addicts were consuming Duragesic patches

orally. Dr. Graham concluded that nothing Dr. Picciano “did

resulted in the adverse outcome” and that if she “prescribed

nothing . . . the outcome would likely have been identical to

what it was.”

E.

The trial court denied the motions of both plaintiff and

defendants for a directed verdict. At the charge conference,

plaintiff argued that the court should not instruct the jury on

apportionment of fault or apportionment of damages between

15

plaintiff and defendants. Plaintiff posited that the standard

of care governing Dr. Picciano was the duty “to protect the

patient from [her] drug-seeking behavior and the risk of self-

inflicted harm whether intentional or unintentional.” According

to plaintiff, Dr. Picciano had the duty to foresee the

consequences of prescribing the medication -- that Michelle’s

addictive craving would overcome her will and lead her to abuse

the Duragesic patch. On that basis, plaintiff submitted that

the court should not charge on comparative negligence, increased

risk due to a preexisting condition, or avoidable consequences.

On the other hand, defendants essentially argued that those

charges were applicable because the jury could find that

Michelle was the sole cause of her own tragic condition. From

defendants’ perspective, Michelle failed to follow the advice of

Dr. Picciano to secure mental-health counseling and to use the

Duragesic patch for its intended purpose. According to

defendants, Michelle’s abuse of alcohol for pain relief was

destroying her liver, and prescribing the Duragesic was a

medically acceptable treatment for her pain. Defendants

contended that Michelle chose to abuse the Duragesic patch in a

way that could not have been foreseen.

The court decided to charge on preexisting condition,

avoidable consequences, and superseding/intervening causation,

but not on comparative negligence. In support of its ruling,

16

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.” Under

the doctrine of comparative negligence, plaintiff is barred from

receiving any recovery if she is more than fifty percent at

fault. N.J.S.A. 2A:15-5.1. The court determined that under the

doctrine of avoidable consequences, the jury could “consider the

conduct of Michelle as an offset to damages” and apportion

damages according to each party’s percentage of responsibility.

The court came to the same conclusion on the theory of increased

risk resulting from a preexisting condition. The court

determined that the jury should be allowed to consider whether

Dr. Picciano’s prescribing the Duragesic patch increased the

risk due to Michelle’s preexisting condition and whether

prescribing the patch was a substantial factor in causing

Michelle’s brain injury. This preexisting-condition charge

allowed the jury to deny plaintiff any recovery.

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. The jury’s response to the first three questions in

the “responsibility” category ended the case. The jury found

17

that plaintiff had proven that Dr. Picciano had deviated from

accepted standards of family medical practice and that the

deviation increased the risk of harm posed by Michelle’s

preexisting condition. However, the jury found that plaintiff

did not prove that the increased risk was a substantial factor

in producing the medical condition of Michelle Komlodi. This

last response meant that Dr. Picciano did not bear legal fault

in causing Michelle’s anoxic brain injury and therefore judgment

was entered in favor of defendants.

Plaintiff’s motion for a new trial or judgment

notwithstanding the verdict was denied.

II.

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. The

panel maintained that the trial court clearly erred by giving a

Scafidi charge. According to the panel, a Scafidi charge is

“‘limited to that class of cases in which a defendant’s

negligence combines with a preexistent condition to cause

harm,’” (quoting Verdicchio v. Ricca, 179 N.J. 1, 23–24 (2004)),

and the central question in such cases “‘is whether [a]

plaintiff’s damage claim should be limited to the value of the

lost chance of recovery,’” (alteration in original) (quoting

18

Anderson v. Picciotti, 144 N.J. 195, 209 (1996)). The panel

determined that “defendants did not identify ‘the preexisting

disease and its normal consequences,’” (quoting Fosgate v.

Corona, 66 N.J. 268, 272 (1974)), and therefore “were not

entitled to a Scafidi charge.” It also determined that the

trial court’s vague references to Michelle’s “‘medical

condition’ and ‘her problems’” were not a sufficient

articulation of a preexisting condition without tying it “to any

proofs or theories presented by the parties.”

The panel also stated that the trial court erred in

instructing the jury on both “but for” causation and

“substantial factor” causation in referring to the “preexisting

condition/increased risk.” It found that those two forms of

causation are incompatible and that a “but for” causation charge

is not appropriate where concurrent causes may be responsible

for the harmful result.

In addition, the panel stated that there was “no reason for

the court to instruct the jury on both foreseeability and

intervening cause,” for if Michelle’s purposeful misuse of the

Duragesic patch was “foreseeable,” then the drug abuse would not

be “a superseding cause that relieves Dr. Picciano from

negligence.”

On the other hand, the panel rejected plaintiff’s argument

that the court should not have instructed the jury on the

19

doctrine of avoidable consequences. The jury, it determined,

could have concluded that Michelle had a duty to “mitigate[]

damages by following” Dr. Picciano’s instructions.

In his dissent, Judge Ashrafi countered that “Michelle

Komlodi’s drug addiction was irrefutably a preexisting condition

that was a proximate cause of her ingestion of the injurious

fentanyl gel . . . [causing] the brain injury she suffered.” He

acknowledged that “the trial court erred by including a ‘but

for’ proximate cause charge in the context of a case involving

alleged multiple causes of plaintiff’s injuries.” He

nevertheless considered this “isolated misstep” not capable of

producing an unjust result in the context of a lengthy jury

charge. On the question of foreseeability and

superseding/intervening causation, Judge Ashrafi also disagreed

with the majority, stating that “[b]oth instructions were proper

statements of the law for the jury to consider in determining

defendant’s liability.” 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.

Defendants filed an appeal as of right pursuant to Rule

2:2-1(a).5 The issues before us are limited to those raised in

5

Neither party filed a petition for certification challenging a

ruling of the Appellate Division not raised in the dissent.

20

the dissent. R. 2:2-1(a)(2) (“Appeals may be taken to the

Supreme Court from final judgments as of right . . . with regard

to those issues as to which, there is a dissent in the Appellate

Division . . . .”); Gilborges v. Wallace, 78 N.J. 342, 349

(1978) (“[W]here there is a dissent in the Appellate Division,

the scope of the appeal . . . is limited to those issues

encompassed by the dissent.”). We granted the motion of the New

Jersey Association for Justice (NJAJ) to participate as amicus

curiae.

III.

A.

Defendants contend that Dr. Picciano did not deviate from

the appropriate standard of care when she prescribed a Duragesic

patch for Michelle Komlodi, but even if she did, Michelle caused

the harm -- an anoxic brain injury -- by ingesting the patch.

On either theory, defendants insist, they have no legal

liability. Defendants argue that the trial court properly gave

a Scafidi charge because Michelle had a preexisting drug and

alcohol addiction, and if Dr. Picciano increased the risk of

harm by prescribing a powerful medication for Michelle’s

“unremitting back pain,” it was Michelle’s “craving for

narcotics [that] overcame the valid use of the Duragesic patch.”

In defendants’ view, Scafidi applies when negligent medical

21

treatment exacerbates a preexisting condition, leading to “a

result which could be foreseeable from that pre-existing

condition.” Thus, the Scafidi charge was proper because “[t]he

pre-existing condition, drug addiction, combined with the

prescription of a narcotic for back pain, led to a result that

was foreseeable.” According to defendants, the role of the jury

was to determine whether either Dr. Picciano’s treatment or

Michelle’s preexisting condition was a substantial factor

causing the anoxic brain injury, and if both were factors to

apportion damages. Defendants state that “judicial notice can

be taken that addicts often overdose, usually unintentionally,

by accidentally consuming a narcotic or more narcotics than that

individual intended.”

Defendants also maintain that the errant “but for” language

in the jury charge was harmless, for the reasons given by Judge

Ashrafi. Last, they submit that the trial court’s charge on

both superseding/intervening causes and foreseeability was a

proper statement of law.

B.

Plaintiff claims that this was a case of simple negligence

and therefore the Scafidi charge was improper for two reasons.

First, Dr. Picciano breached the standard of care by prescribing

a Duragesic patch to treat the lower back pain of a patient with

a history of drug and alcohol abuse, and it was foreseeable that

22

Michelle would misuse the patch either by orally ingesting it or

using it while drinking alcohol. Second, Dr. Picciano was

negligent because, after prescribing the patch and learning that

Michelle was abusing alcohol, she did not “take appropriate

measures to assure that Michelle would not use the patch.”

Plaintiff maintains that a Scafidi case is one in which a

doctor negligently treats a preexisting disease, thereby

increasing the harm caused by the preexisting disease. In such

a case “the Scafidi charge is warranted and the plaintiff’s

damages are limited to the increased risk of harm attributable

to the defendant’s negligent conduct.” Here, according to

plaintiff, Scafidi does not apply because Dr. Picciano was

treating Michelle for lower back pain and not for the

preexisting disease of alcohol or drug addiction. In

plaintiff’s view, even if Scafidi principles applied, defendants

failed “to identify the pre-existing condition and reasonably

apportion the damages” and did not satisfy those principles

merely by insisting that the anoxic brain injury would have

occurred anyway “because a drug addict can overdose at any

time.” Last on this issue, plaintiff contends that because

defendants offered no evidence on apportionment of damages, they

were totally responsible for the injury and damages.

Plaintiff also claims that the “but for” instruction was

improper in a case “where there are concurrent or intervening

23

causes of harm that do not constitute pre-existing medical

conditions that the defendant is treating.” Finally, she urges

that charging superseding/intervening causation was improper

because defendants conceded that abuse of the Duragesic patch

was foreseeable, and therefore such a charge could only have

served to confuse the jury.

C.

Amicus curiae NJAJ also submits that the trial court erred

in giving a Scafidi charge. NJAJ states that this case is not

the “typical Scafidi fact pattern” in which a doctor negligently

delays medical treatment of a patient afflicted by a preexisting

disease, leading to an increased risk of harm to the patient.

In such a case, the preexisting condition itself may lead to a

harmful result, and the doctor’s negligence accelerates or fails

to stem the course of the condition. Here, NJAJ asserts Dr.

Picciano’s “deviation from the standard of care alone is the

cause of Michelle’s injuries,” thus rendering inapplicable a

Scafidi charge. Further, NJAJ insists that “the trial court

erred in failing to tailor the charge to the theories and facts

presented by plaintiffs at trial” and that the “but for” charge

was so confusing that it fatally undermined the fairness of the

verdict.

IV.

24

A.

In this medical malpractice case, the parties presented

dueling theories on standard of care and causation and hotly

disputed what inferences should be drawn from the facts. The

jury, as the ultimate trier of fact, was presented with the task

of deciding exceedingly complex issues of liability and

apportionment of damages. But a jury cannot fulfill that

difficult task without accurate, clear, and understandable

instructions from the court. Jurman v. Samuel Braen, Inc., 47

N.J. 586, 591–92 (1966) (“[T]he court’s instructions must . . .

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 . . . .”). The faithful performance of the jurors’ duties

depends on proper guidance from the court. Talmage v.

Davenport, 31 N.J.L. 561, 562 (1864). Indeed, the trial court

must tailor the instructions on the law to the theories and

facts of a complex case for a jury to fully understand the task

before it. See Reynolds 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”).

In a medical-malpractice action, the plaintiff has the

burden of proving the relevant standard of care governing the

25

defendant-doctor, a deviation from that standard, an injury

proximately caused by the deviation, and damages suffered from

the defendant-doctor’s negligence. See Verdicchio, 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). In medical malpractice cases, the standard of

care generally is not a matter of common knowledge and must be

established by experts who typically specialize in a field of

medicine similar to that of the defendant-physician. 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. Health & Human

Servs. Comm., Statement to Assem. B. 50 at 20 (Mar. 4, 2004))).

A physician must exercise a duty of care to a patient that,

generally, any similarly credentialed member of the profession

would exercise in a like scenario. Cowan v. Doering, 111 N.J.

451, 462, 468 (1988). In certain circumstances -- depending on

the condition a patient presents -- the duty of care may

“include the duty to prevent a patient from engaging in self-

damaging acts.” Id. at 461 (finding duty of care to prevent

suicidal patient from self-inflicting harm based on foreseeable

risk that patient would try to injure herself). We have held

26

that a psychiatrist treating a suicidal patient may have a duty

to protect the patient from self-harm. Cowan, supra, 111 N.J.

at 462. A health-care provider may also have a duty to protect

a particularly vulnerable patient from self-harm. See Tobia v.

Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335, 342 (1994) (stating

in case involving elderly woman who fell off hospital stretcher

that it is wrong “to suggest to the jury that although the

hospital had the duty to care for an incapacitated patient, the

patient’s lack of care for herself diluted that duty”). We have

noted that in cases involving the foreseeability that a patient

will engage in self-injurious conduct, application of

comparative negligence may dilute the duty of care. Tobia,

supra, 136 N.J. at 342; Cowan, supra, 111 N.J. at 467.

In this case, plaintiff and defendants presented

conflicting expert testimony concerning whether Dr. Picciano

deviated from the accepted standard of care. 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.” Cowan, supra, 111 N.J. at 462.

They dispute whether Dr. Picciano breached this standard.

Plaintiff argued that prescribing a Duragesic patch to a drug-

and alcohol-addicted patient, given the ongoing history

presented by Michelle Komlodi, deviated from the applicable duty

27

of care. Defendants argued that Dr. Picciano prescribed the

patch as a stop-gap measure to treat Michelle’s pain so that she

would not self-medicate while she was waiting for her

appointment at a mental-health clinic.

In rendering its verdict, the jury pronounced in

interrogatory number one that Dr. Picciano deviated from the

standard of care governing a family-practice physician. That

finding is not directly at issue in this appeal. The main focus

is on the propriety of the charge on causation.

With this background, we now turn to the various theories

of causation that are at the heart of this appeal.

B.

A basic notion of our law is that, generally, a tortfeasor

should be liable for only the harm she actually caused to the

plaintiff. Scafidi, supra, 119 N.J. at 112–13. In cases where

a plaintiff is responsible, in whole or in part, for the harm or

injury she suffers, the doctrines of comparative negligence,

avoidable consequences, or superseding/intervening causation may

serve to absolve a defendant of liability or limit her damages.

See Ostrowski, supra, 111 N.J. at 436–38 (discussing elements of

comparative negligence and avoidable consequences); Cowan,

supra, 111 N.J. at 465 (stating that defendant has no liability

if there is intervening act that breaks chain of causation).

Another doctrine -- the one specifically at issue in this case -

28

- 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. Scafidi, supra,

119 N.J. at 112 (limiting plaintiff’s damages in preexisting

disease or condition cases “to the value of the lost chance of

recovery”). 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 increased risk of harm resulting from

her negligence. See id. at 112–13. In a case involving a

preexisting disease or condition, the defendant-physician, not

the “innocent” patient, is required to establish the percentage

of damages attributable to the physician’s negligence.

Verdicchio, supra, 179 N.J. at 37 (quoting Fosgate, supra, 66

N.J. at 272).

Following this Court’s guidance in Ostrowski, supra, the

trial court in this case decided against charging comparative

negligence. The comparative-negligence statute permits

recovery, and apportionment of damages, so long as the

plaintiff’s “negligence was not greater than the negligence of

the person against whom recovery is sought.” N.J.S.A. 2A:15-

5.1. Under the statute, if the plaintiff’s negligence is fifty-

one percent and defendant’s forty-nine percent, the plaintiff

receives no recovery. Comparative negligence “comes into action

29

when the injured party’s carelessness occurs before defendant’s

wrong has been committed or concurrently with it.” Ostrowski,

supra, 111 N.J. at 438 (citing William L. Keeton et al., Prosser

and Keeton on the Law of Torts § 65 at 458-59 (5th ed. 1984)).

In contrast to comparative negligence, the doctrine of

avoidable consequences “normally comes into action when the

[plaintiff’s] carelessness occurs after the defendant’s legal

wrong has been committed.” Id. at 438. Unlike comparative

negligence, the doctrine of avoidable consequences is not a

defense to liability and serves only to mitigate damages. Id.

at 441 (quoting Southport Transit Co. v. Avondale Marine Ways,

Inc., 234 F.2d 947, 952 (5th Cir. 1956)). Avoidable

consequences will reduce a recovery because a plaintiff cannot

claim as damages the additional injury she causes to herself

after a defendant commits a tortious act. See ibid. A

plaintiff whose broken wrist is wrongly set by a surgeon cannot

claim increased damages when, against doctor’s orders, she

causes additional harm to her wrist while playing tennis.

Thus, even when comparative negligence is barred,

“[d]efendants can assert a patient’s self-neglect to limit

damages.” Tobia, supra, 136 N.J. at 343 (stating that if

plaintiff, after having fallen off stretcher, had worsened her

condition by disobeying medical instructions, jury could find

failure to mitigate damages); see also Ostrowski, supra, 111

30

N.J. at 449 (noting that diabetic patient’s “continued failure

to follow dietary and smoking rules” could be considered failure

to mitigate damages but not comparative negligence); Lynch v.

Sheininger, 162 N.J. 209, 230 (2000) (noting in wrongful birth

claim that trial court might be required to charge avoidable

consequences if “proofs would sustain a jury finding that the

[parents] decided to conceive another child notwithstanding

their knowledge” that pregnancy was likely to be risky).

In the present case, plaintiff ingested the Duragesic patch

after Dr. Picciano allegedly violated the standard of care by

prescribing the patch. In Ostrowski, supra, we said that courts

“must avoid the indiscriminate application of the doctrine of

comparative negligence . . . when the doctrines of avoidable

consequences or preexisting condition apply.” 111 N.J. at 441.

Based on this instruction, the trial court ruled out comparative

negligence as a defense. The court’s decision not to charge

comparative negligence was not appealed. By its clear terms,

Ostrowski signaled that a comparative negligence charge should

not be given when the doctrine of avoidable consequences

applies. However, it is also clear here that giving a

preexisting disease or condition charge was inappropriate.

C.

In light of the charges on avoidable consequences and

superseding/intervening causes, the trial court erred in

31

charging the jury on preexisting disease or condition -- the

Scafidi charge. We come to that conclusion for several reasons.

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. See Evers, supra, 95 N.J. at 413. 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, “whether the increased risk

was a substantial factor in producing the ultimate result.”

Scafidi, supra, 119 N.J. at 108. If the plaintiff satisfies her

burden of proving these two elements by a preponderance of the

evidence, then the burden shifts to the defendant to show what

damages should be attributable solely to the preexisting

condition as opposed to the physician’s negligence. See

Fosgate, supra, 66 N.J. at 272–73. The amount of damages caused

by the aggravation of the preexisting condition due to the

physician’s negligence is “the value of the lost chance of

recovery.” Scafidi, supra, 119 N.J. at 112. The jury

instruction on whether the doctor’s deviation from the standard

of care increased the risk of harm and whether the increased

risk was a substantial factor in producing the ultimate harm --

along with the allocation of damages -- is known as a Scafidi or

preexisting-condition charge. See id. at 108-09.

32

One important distinction between the doctrine of

preexisting disease and condition and the doctrines of

comparative negligence, superseding/intervening cause, and

avoidable consequences is that preexisting disease and condition

does not involve fault on the part of the plaintiff. Ostrowski,

supra, 111 N.J. at 438 (“[T]he injured person’s conduct is

irrelevant to the consideration of the doctrine of aggravation

of a preexisting condition.”); 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).

In the typical Scafidi case, 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. See,

e.g., Reynolds, supra, 172 N.J. at 275 (failure to conduct

appropriate test increased risk of nerve damage and paralysis

from undiagnosed and untreated condition); Scafidi, supra, 119

N.J. at 98 (failure to properly treat premature labor resulted

33

in early birth and death of infant); Evers, supra, 95 N.J. at

404 (delay in treating breast cancer “enhanced the risk that the

cancer would recur”). Scafidi-type cases generally do not

implicate fault on the part of the plaintiff. The physician

must take the patient as presented to her and cannot blame the

patient for the preexisting condition or disease for which the

patient has sought treatment.

Thus, in the typical Scafidi case, the inexorable

progression of a preexisting disease or condition will occur due

to no fault of the plaintiff, and it is that circumstance that

will be offset against a treating physician’s negligence. Here,

it is Michelle’s failure to properly use the Duragesic patch

after Dr. Picciano’s alleged negligence -- prescribing the patch

-- that is at issue. Because the Scafidi charge here was used

to allocate fault, not just damages, it served as a substitute

for the comparative-fault charge -- without the fifty-one

percent fault bar. Moreover, the Scafidi charge here became

blurred with the charge on avoidable consequences and

superseding/intervening causation. Defendants’ basic argument

in summation was that Michelle chose to misuse the Duragesic

after Dr. Picciano prescribed the patch. Stated differently,

Michelle could have avoided the consequence of Dr. Picciano’s

alleged negligence by properly using the patch. Notably,

defendants argue before this Court that Scafidi was appropriate

34

because Michelle’s injury was foreseeable given her preexisting

condition; yet at trial, defendants argued to the jury that Dr.

Picciano could not have foreseen Michelle’s

superseding/intervening actions. These inconsistent arguments

strongly suggest that the charge had the capacity to confuse or

mislead the jury.

In addition, the Scafidi charge suffered from multiple

defects. The court merely recited several interrogatory

questions on the jury verdict form without elaboration or

further guidance. The first three interrogatory questions read:

1) Did plaintiff prove by a preponderance of

the evidence that Anne Picciano, M.D.,

deviated from accepted standards of family

medical practice?

2) Did plaintiff prove by a preponderance of

the evidence that the deviation by Dr.

Picciano increased the risk of harm posed by

Michelle Komlodi’s pre-existing condition?

3) Did plaintiff prove by a preponderance of

the evidence that that increased risk was a

substantial factor in producing the medical

condition of Michelle Komlodi?

These three questions, and a fourth that allowed an allocation

of damages if the jury answered affirmatively to the first

three, were the entirety of the court’s Scafidi charge.

The trial court did not follow Model Jury Charge (Civil) §

5.50E entitled, “Pre-Existing Condition -- Increased Risk/Loss

of Chance -- Proximate Cause” (Feb. 2004). That charge requires

35

that the principles of law be charged with reference to the

specific facts of the case. The charge instructs the trial

court to provide “a detailed factual description of the case.”

Model Jury Charge (Civil) § 5.50E. That was not done here. The

charge also indicates that the preexisting condition or disease

should be identified. That was not done here. For example, the

Model Jury Charge reads:

If you determine that the defendant was

negligent, then you must also decide what is

the chance that: [(1) the plaintiff would

not be dying of cancer; or (2) the

plaintiff’s husband would not have died of

the heart attack et cetera], if the

defendant had not been negligent. . . .

When the plaintiff came to the defendant,

he/she had a preexisting condition [here

describe the condition, e.g., breast cancer;

heart attack et cetera] which by itself had

a risk of causing the plaintiff the harm

he/she ultimately experienced in this case.

[Ibid.]

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.

Had the court attempted to do so, the inadvisability of giving

the charge might have become apparent. However, even if the

charge were appropriate, the failure to tailor the legal

theories and facts to the law on preexisting conditions would

raise serious questions about the verdict. Reynolds, supra, 172

36

N.J. at 288-89. “‘[E]rroneous instructions are poor candidates

for rehabilitation as harmless, and are ordinarily presumed to

be reversible error.’” Das v. Thani, 171 N.J. 518, 527 (2002)

(quoting State v. Afanador, 151 N.J. 41, 54 (1997)).

We agree with the panel majority that the misapplication of

the Scafidi charge requires a remand for a new trial.

V.

We concur with Judge Ashrafi’s dissent that the trial court

did not err in charging the jury on both foreseeability and

superseding/intervening causation. The panel majority was

correct in asserting that “if Michelle’s deliberate act was

foreseeable, then it was not a superseding cause.” That,

however, is not a sufficient reason for not instructing on

superseding/intervening causes. The concepts of foreseeability

and superseding/intervening causation are inextricably

interrelated, and the jury needs to be educated to have a full

understanding of both. Here, as in other parts of the charge,

the trial court failed to explain to the jury how the legal

concepts applied to the facts of the case.

A.

Foreseeability is a constituent part of proximate cause,

and proximate cause is an essential element of a malpractice

action. If an injury is not a foreseeable consequence of a

37

person’s act, then a negligence suit cannot prevail. See

Caputzal v. Lindsay Co., 48 N.J. 69, 78–79 (1966) (noting that

there is no liability for “remote consequences” of negligent

action). 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. Kelly v.

Gwinnell, 96 N.J. 538, 543 (1984) (citing Rappaport v. Nichols,

31 N.J. 188, 201 (1959)). So long as the injury or harm

suffered was within the realm of reasonable contemplation, the

injury or harm is foreseeable. Bendar v. Rosen, 247 N.J. Super.

219, 229 (App. Div. 1991) (“The tortfeasor need not foresee the

precise injury; it is enough that the type of injury be within

an objective ‘realm of foreseeability.’” (citation omitted)).

In contrast, if an injury or harm was so remote that it could

not have been reasonably anticipated, the injury or harm is not

foreseeable. See Caputzal, supra, 48 N.J. at 78–79.

The superseding/intervening charge complements the general

charge on proximate cause. Indeed, the interrelationship

between foreseeability and superseding/intervening causes is

recognized by our Model Jury Charges. Model Jury Charge (Civil)

§ 6.13, “Proximate Cause -- Where There Is Claim That Concurrent

Causes of Harm Are Present and Claim That Specific Harm Was Not

Foreseeable” (May 1998), specifically notes that, when

appropriate, it should be charged with Model Jury Charge (Civil)

38

§ 6.14, “Where There Is Claim of Intervening or Superseding

Cause for Jury’s Consideration” (Aug. 1999).

A superseding or intervening act is one that breaks the

“chain of causation” linking a defendant’s wrongful act and an

injury or harm suffered by a plaintiff. Cowan, supra, 111 N.J.

at 465. A superseding or intervening act is one that is “the

immediate and sole cause of the” injury or harm. Model Jury

Charge (Civil) § 6.14; see also Davis v. Brooks, 280 N.J. Super.

406, 412 (App. Div. 1993). Significantly, intervening causes

that are “foreseeable” or the “normal incidents of the risk

created” will not break the chain of causation and relieve a

defendant of liability. Model Jury Charge (Civil) § 6.14; see

also Rappaport, supra, 31 N.J. at 203.

As with all disputed issues, the jury is the final arbiter

of the facts. 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. See Rappaport,

supra, 31 N.J. at 203.

Cowan, supra, provides one illustration of

superseding/intervening causation in a medical malpractice case.

111 N.J. at 465–66. In that case, at defendant Valley Hospital,

the defendant doctors and nurses treated the plaintiff, who had

attempted suicide by overdosing on sleeping pills. Id. at 455.

At some point, the plaintiff was placed in a room, the door was

39

closed, and she was not monitored, contrary to hospital policy.

Id. at 456. The plaintiff managed to jump out of the window of

her room, falling twelve feet and injuring herself. Ibid. We

upheld the trial court’s instruction on superseding/intervening

causation. Id. at 465. We noted that the plaintiff’s “leap

from the window” might break the chain of causation “if her act

were volitional and not attributable to her disorder or

condition.” Ibid. “The issue fairly presented to the jury was

whether the leap was reasonably foreseeable or was, on the

contrary, a remote or abnormal incident of the risk of self-

injury that was not otherwise reasonably foreseeable by

defendants.” Ibid. (citing Rappaport, supra, 31 N.J. at 203–

04). It was left to the jury to determine whether the plaintiff

was able to exercise reasonable care given her underlying

condition. Id. at 466. We upheld “the jury’s rejection of the

intervening causation” because the evidence “fully supported”

the finding that “it was clearly foreseeable that defendants’

conduct created a risk that plaintiff would engage in self-

damaging acts.” Ibid.

We now apply these principles to the case before us.

B.

Here, the jury had to determine whether, given Michelle

Komlodi’s medical history of addiction to alcohol and drugs, her

oral ingestion of the Duragesic patch was “reasonably

40

foreseeable or was . . . a remote or abnormal incident of the

risk of self-injury that was not otherwise reasonably

foreseeable by defendants.” Cowan, supra, 111 N.J. at 465.

Intertwined with that question was whether Michelle’s act was

“volitional and not attributable to [her] disorder or

condition.” Ibid. Were Michelle’s addictive cravings so

powerful that they were capable of overcoming her will, and

would a reasonably prudent, similarly credentialed physician

have understood this dynamic? In light of Michelle’s apparently

proper, although illicit, topical use of the Duragesic patch in

the past, was it reasonably foreseeable that Michelle would

orally ingest the prescribed Duragesic? Was there common

knowledge among family care practitioners about the potential

abuses of Duragesic patches at the times relevant in this case?

What would a reasonably well-informed doctor have anticipated

given the patient’s medical history and prior conduct? We do

not suggest that these precise questions had to be framed for

the jury. The court here, however, never posed any appropriate

superseding/intervening causation questions. Instead, the court

gave examples completely unrelated to the proofs.

The trial court was correct to charge the jury on

superseding/intervening cause. But it did not mold its

instructions to the facts of this case. Juries must know how

the legal instructions are to be applied to the complex factual

41

scenarios before them, and the instructions must be clear and

understandable. The jury charge failed to give the jury the

guidance it needed to sort through the complex issues in this

case.

VI.

Neither plaintiff nor defendant has challenged the

avoidable-consequences charge given at trial; nevertheless, our

review of the avoidable-consequences charge leads us to the

conclusion that it must be adapted to the special circumstances

of this case. As with all jury instructions, the trial judge

should tailor the charge to the facts and the parties’

arguments. Model Jury Charge (Civil) § 8.11B, “Duty to Mitigate

Damages by Medical and Surgical Treatment,” will only be

meaningful to a jury hearing this case if it addresses the

special circumstances presented here -- how plaintiff acted in

light of her drug and alcohol addiction. The jury must

determine whether, and to what degree, the plaintiff had the

capacity to act reasonably to care for herself in light of her

health or mental condition. See Cowan, supra, 111 N.J. at 460.

We recommend the following charge:

Plaintiff contends that because of

Michelle’s impaired health or mental

condition, defendant had the duty to protect

Michelle from harming herself. If you

42

decide that plaintiff is entitled to damages

for Michelle’s injuries, you then must

decide whether Michelle had the capacity to

exercise reasonable care to avoid or

mitigate the damages she suffered.

A plaintiff is responsible for mitigating

the consequences of a defendant’s negligent

conduct to the extent reasonable care can be

exercised by the plaintiff, taking into

consideration her health or mental

condition.

In this case, defendant claims that Michelle

could have avoided or mitigated her injuries

by securing mental health treatment or by

using the Duragesic patch as instructed. On

the other hand, plaintiff claims that

Michelle was so impaired by her addiction

that she was incapable of caring for

herself, that is, incapable of avoiding or

mitigating her injuries. You, members of

the jury, must decide the facts, and

ultimately which of the party’s arguments is

most persuasive, or whether there is some

merit to both, and if so to what degree.

In short, you must decide what percentage,

if any, of Michelle’s damages were caused by

a failure on her part to exercise

reasonable care to avoid or mitigate those

damages -- provided she was capable of doing

so. If she was capable of doing so, you

must reduce her damages accordingly.

Whether a plaintiff acted reasonably must be

examined in light of the plaintiff’s

capacity to care for herself. A plaintiff

suffering from a health or mental condition

may be capable, incapable or not fully

capable of caring for herself as an ordinary

person would.

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

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mental condition, could reasonably have

acted to avoid or mitigate injury.

A defendant is liable only for that portion

of the injuries attributable to the

defendant’s negligence. If you find that,

in light of her health or mental condition,

Michelle did not act reasonably to avoid or

mitigate injury, you must assess the degree

to which the injuries were the result of

either defendant’s negligence or Michelle’s

own unreasonable failure to avoid or

mitigate injury. You must allocate by

percentages defendant’s responsibility for

Michelle’s injuries and Michelle’s failure

to exercise care to avoid or mitigate those

injuries.6

VII.

The appellate panel majority and the dissent agree that the

use of a “but for” causation charge in conjunction with a

substantial-factor charge was error. Unlike the majority,

however, the dissent concluded that the error was harmless. The

trial court made a seemingly inadvertent reference to “but for”

causation during its instruction on proximate cause.

So, first you must find that the

resulting injury would not have occurred but

for Dr. Picciano’s negligent conduct.

Second, you must find that the

negligent conduct was a substantial factor

in bringing about the resulting injury. If

you find that Dr. Picciano’s negligence was

a cause of the injury and was a substantial

6

We refer to the Supreme Court Committee on Model Civil Jury

Charges, for its review, the charge on avoidable consequences

for any recommendations it may have for its improvement, bearing

in mind the various scenarios to which it may apply.

44

factor in bringing about the injury, that

negligence was a proximate cause of the

injury.

This was the only reference to “but for” causation in the

charge. Importantly, no party objected to the “but for”

reference. See R. 1:7-2 (“Except as otherwise provided by R.

1:7-5 and R. 2:10-2 (plain error), no party may urge as error

any portion of the charge to the jury or omissions therefrom

unless objections are made thereto . . . .”).

These two forms of causation -- “but for” and “substantial

factor” -- are mutually exclusive. A “but for” charge is

appropriate when there is only one potential cause of the injury

or harm. See Conklin v. Hannoch Weisman, P.C., 145 N.J. 395,

417 (1996) (“In the routine tort case, ‘the law requires proof

that the result complained of probably would not have occurred

“but for” the negligent conduct of the defendant.’” (citation

omitted)). In contrast, the “substantial factor” test is given

when there are concurrent causes potentially capable of

producing the harm or injury. Id. at 419–20. Thus, “a

tortfeasor will be held answerable if its ‘negligent conduct was

a substantial factor in bringing about the injuries,’ even where

there are ‘other intervening causes which were foreseeable or

were normal incidents of the risk created.’” Brown v. United

States Stove Co., 98 N.J. 155, 171 (1984) (quoting Rappaport,

supra, 31 N.J. at 203). A substantial factor is one that is

45

“not a remote, trivial or inconsequential cause.” Model Jury

Charge (Civil) § 6.13.

We have determined that there must be a new trial because

of the erroneous inclusion of the Scafidi charge. At the new

trial, the jury charge must explain the parties’ legal theories

and the proofs in relation to the governing law. In addition,

the substantial-factor test will be the test for deciding

proximate cause.

VIII.

For the reasons explained, we affirm and modify the

judgment of the Appellate Division. Accordingly, the no-cause

verdict is vacated, and a new trial is ordered. This matter is

remanded to the Law Division for proceedings consistent with

this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and PATTERSON

and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join

in JUSTICE ALBIN’s opinion.

46

SUPREME COURT OF NEW JERSEY

NO. A-13 SEPTEMBER TERM 2012

ON APPEAL FROM Appellate Division, Superior Court

JUDY KOMLODI, as Guardian for

MICHELLE KOMLODI, an

Incapacitated person,

Plaintiff-Respondent,

v.

ANNE PICCIANO, M.D. and JFK

MEDICAL CENTER,

Defendants-Appellants.

DECIDED May 20, 2014

Chief Justice Rabner PRESIDING

OPINION BY Justice Albin

CONCURRING/DISSENTING OPINION BY

DISSENTING OPINION BY

AFFIRM AS

CHECKLIST MODIFIED/

VACATE/

REMAND

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) X

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