On appeal from the Superior Court, Appellate Division, whose opinion is reported at 227 N.J. Super. 175 (1988).
For affirmance -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. Handler, J., concurring. Justice Stein joins this opinion. Handler and Stein, JJ., concurring in the result.
The judgment is affirmed substantially for the "plain error" reason expressed in the majority opinion of the Appellate Division. We agree that "[t]o now reverse this judgment because the trial court on its own did not define proximate cause in terms of 'substantial possibility' * * * would also offend fundamentally sound principles of appellate review and would be 'manifestly unfair to the defendant . . . to say nothing of the trial judge.'" 227 N.J. Super. 175, 201 (1988) (quoting Rochinsky v. State, 110 N.J. 399, 431 (1988) (Clifford, J., dissenting)).
As the majority of the Appellate Division noted, relief under the plain error rule, at least in civil cases, is discretionary and "should be sparingly employed." Ford v. Reichert, 23 N.J. 429, 435 (1957). Especially is that so when, as here, the reviewing court invokes the rule, on its own motion, to review the error, and "neither party had the opportunity of presenting its views before [it] found [itself] bound by the court's edict." Ibid.
We express no view on the substantive issues in dispute except to note that we are not convinced that "'substantial justice' has not been done as a result of the erroneous action." Id. at 434 (quoting In re Stern, 11 N.J. 584, 590 (1953)).
This case involves a medical malpractice action against a psychiatrist, Dr. Weiser, for the suicide death of plaintiff Anne Gaido's husband, Peter Gaido. Mr. Gaido was suicidal and had been hospitalized for this condition. Dr. Weiser agreed to provide follow-up psychiatric care for Mr. Gaido after he was released from a psychiatric hospital. Mr. Gaido allegedly committed suicide on the day before his appointment with Dr. Weiser. Plaintiff alleges that defendant's refusal to see decedent prior to his scheduled appointment after learning that decedent's symptoms of depression had returned was negligent conduct that contributed to causing her husband's death. Defendant claims that he did not breach the proper duty of care
and that even if he was negligent, his conduct was not a proximate cause of decedent's death.
After a three week trial, the jury found by a vote of 5-1 that Dr. Weiser was negligent but found by a vote of 5-1 that the negligence was not a proximate cause of Peter Gaido's death. The trial court charged the jury on the definition of proximate cause using Model Jury Charge 7.11 and relevant New Jersey caselaw as a reference. The court stated:
It is the duty of the plaintiff to establish by a preponderance of the evidence that the negligent conduct of the defendants or either of them was "A proximate cause" of Mr. Gaido's death. Now, the term "A proximate cause" means that the negligent conduct was an efficient cause of his death, that is, a cause which necessarily set the other causes in motion and was a substantial factor in bringing about his death. "A proximate cause" is any cause which in a natural and continuous sequence produces the result complained of. Without which, the result would not have occurred. To be "A proximate cause" the negligence of a defendant need not be the only cause of Mr. Gaido's death, there can be other causes as well but to be "A proximate cause" the negligence must be at least a substantial factor in bringing about or causing that result.
The trial court never considered charging the jury on the definition of proximate cause using the "lost chance exception" for medical malpractice cases recognized in Evers v. Dollinger, 95 N.J. 399 (1984), and plaintiff never asked for this type of charge.
On appeal to the Appellate Division, Judge Shebell dissented from the majority's affirmance of the trial court's denial of plaintiff's motion for a new trial because he found "the proximate cause charge given by the trial judge was inappropriate and unworkable when applied to a malpractice theory of failure to treat and diagnose." 227 N.J. Super. 175, 202 (1988). According to Judge Shebell, "the jury finding that defendant failed in his duty to diagnose and treat plaintiff's condition put the case in a posture where plaintiff only had to show that there was a substantial possibility that decedent's death could have been avoided if proper ...