Conford, Foley and Leonard. The opinion of the court was delivered by Foley, J.A.D.
In this medical malpractice case, tried to a jury, plaintiff appeals from a judgment entered upon a verdict of no cause of action.
Plaintiff was severely injured in an automobile accident and as a result came under the professional care of defendant for treatment of a fractured left arm. The present action is based upon the alleged negligence of defendant in the application and observation of a cast which, plaintiff charges, resulted in a contracture of his left arm and wrist.
Plaintiff originally sued the motorist involved in the automobile accident. That case was settled for $25,000 in consideration of plaintiff's general release. Thereafter, the malpractice case was instituted. At the trial of this case defendant, over the objection of plaintiff, was permitted to offer evidence of the prior settlement in mitigation of damages, upon the theory that plaintiff was not entitled to a double recovery, but only to such damages as naturally and proximately flowed from the alleged malpractice, and then only if plaintiff was not compensated for such damages by the prior settlement.
In its charge the court instructed the jury that "if some part or all of that settlement compensated plaintiff for the injuries he contends defendant is responsible for, defendant would be entitled to a credit for such amount against any recovery against him." This was a correct statement of the law, as set out in Daily v. Somberg, 28 N.J. 372, 386 (1958).
At the conclusion of the charge the judge instructed the jury to make special findings as follows:
"If you find in favor of Defendant and against the Plaintiff for no cause of action you shall designate whether such verdict was arrived at by reason of:
(a) Plaintiff's failure to prove liability on the part of Defendant:
(b) that Plaintiff has heretofore received full compensation for the injuries claimed to have resulted from Defendant's negligence.
If you find in favor of the Plaintiff and if you find that some portion of the prior settlement compensated Plaintiff for the injury claimed in this litigation, set forth the amount in dollars and cents that you determine that the Defendant is entitled to be credited with."
In connection with the findings the court charged that the jury need give consideration to the evidence relating to the settlement only if it was satisfied that plaintiff had established defendant's negligence as the proximate cause. The jury found no cause of action by reason of plaintiff's failure to prove ...