On certification to the Superior Court, Appellate Division, whose opinion is reported at 225 N.J. Super. 576 (1988).
For Modification, Affirmance and Remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Stein, J. Handler, J., concurring. Justice Handler concurs in the result.
[119 NJ Page 96] In this medical malpractice case, the proofs presented as a factual issue whether the defendant's failure properly to treat and arrest Jamie Scafidi's early labor proximately caused the premature birth and death of her infant child. The trial court declined plaintiffs' request that it instruct the jury on causation in accordance with the "increased risk" standard authorized by our opinion in Evers v. Dollinger, 95 N.J. 399, 417, 471 A.2d 405 (1984). The court also refused to instruct the jury that it was
defendant's burden to prove that damages could be apportioned to reflect the likelihood that plaintiff Jamie Scafidi's preexistent condition was independently responsible for the premature birth and death. See Fosgate v. Corona, 66 N.J. 268, 272-73, 330 A.2d 355 (1974). Although finding that defendant's conduct was negligent, the jury returned a verdict for defendant, determining that his negligence was not a proximate cause of the infant's premature birth and death.
The Appellate Division held that the trial court committed reversible error by refusing to give the jury an Evers v. Dollinger charge, 225 N.J. Super. 576, 582, 543 A.2d 95 (1988), but sustained the trial court's refusal to impose on defendant the burden of proving that damages could be apportioned. Id. at 584, 543 A.2d 95. We granted certification, 114 N.J. 471, 555 A.2d 599 (1989), and now affirm the judgment of the Appellate Division. We hold, however, that any damages awarded to plaintiffs on retrial, assuming that defendant's proofs include evidence that the infant's premature birth and death might have occurred even if defendant's treatment had been proper, should be apportioned to reflect the likelihood that the premature birth and death would have been avoided by proper treatment. Thus, plaintiffs' damages will be limited to the value of the lost chance for recovery attributable to defendant's negligence.
In July 1982, plaintiff Jamie Scafidi began the seventh month of a difficult pregnancy. On July 7th, she saw her regular obstetrician, Dr. Franzoni, because of severe bleeding that had started that morning. Dr. Franzoni warned that she "was sitting on a time bomb and * * * [was] threatening abortion." He prescribed bed-rest and instructed her to call if any problems developed.
That afternoon she experienced intermittent abdominal cramps and attempted to communicate with Dr. Franzoni. Between
5:00 and 6:00 p.m., Dr. Seiler, an associate who was covering for Dr. Franzoni, returned the call. She explained her symptoms to Dr. Seiler and also repeated Dr. Franzoni's admonition to her that morning. In response to Dr. Seiler's inquiries, she said that her bleeding had stopped, that the cramps were irregular, and that her next scheduled appointment with Dr. Franzoni was the following day. Dr. Seiler informed Ms. Scafidi that he would order a medication called vasodilian to "calm" the uterus, and told her to call back if the cramping intensified. Dr. Seiler neither examined Ms. Scafidi nor consulted with Dr. Franzoni.
Ms. Scafidi took three of the vasodilian pills during the night, but the cramping continued. Dr. Franzoni examined her the following morning, observing that her cervix was dilated three centimeters. He hospitalized her immediately and began tocolytic therapy, a means of arresting premature labor, using a solution of magnesium sulfate administered intravenously. The medication was unsuccessful. Later that day Ms. Scafidi gave birth to a twenty-eight-week gestated infant girl, weighing two pounds, six ounces. After two days of intensive care, the baby died of respiratory failure on July 10, 1982.
Plaintiffs instituted this action seeking damages for pain and suffering and wrongful death on behalf of the deceased infant, and individually for loss of services. Plaintiffs alleged that Dr. Seiler failed to examine, diagnose, and administer proper medication to Ms. Scafidi, resulting in the premature birth and death of her infant daughter. At trial Dr. Marshall Klavan, plaintiffs' expert witness, testified that vasodilian administered orally was virtually valueless as a tocolytic agent. He stated that Dr. Seiler's failure to have examined and hospitalized Ms. Scafidi and institute proper tocolytic therapy deviated from accepted standards and "directly related to the premature birth." According to Dr. Klavan, timely administration of tocolytic therapy was seventy-five- to eighty-percent effective in arresting premature labor. Dr. Klavan asserted that "the
sooner you give tocolytic, the greater likelihood you would abort the labor."
Dr. Richard Berman, defendant's expert, testified that Dr. Seiler's treatment was consistent with accepted standards. He stated that the outcome would not have been different even had tocolytic therapy begun after Ms. Scafidi spoke with defendant. He expressed the view that only twenty-five percent of patients receiving tocolytic therapy respond to it, and he could not determine whether it would have helped Ms. Scafidi. Acknowledging agreement with the concept that delay in initiating tocolytic therapy increases the risk of premature birth, Dr. Berman explained that the "biggest problem" is in determining whether to begin the treatment. However, he agreed that "retrospectively, the sooner it had been started, the better it would have been for her."
Plaintiffs requested a jury instruction on causation that was consistent with this Court's opinion in Evers v. Dollinger, supra, 95 N.J. at 417, 471 A.2d 405. The requested charge was:
Once the plaintiffs in this case have produced evidence of a negligent act or failure to act which increased the risk that plaintiffs' child would be born prematurely and thereafter die of the complications of that premature birth, and that the premature birth and consequent death of the child in fact occurred, you will then consider whether such increased risk was a substantial factor in that result. If you so find, you will proceed to a calculation of damages.
The trial court denied the request, and instead gave the following instruction on causation:
The plaintiff has the burden of proving that the injuries for which he seeks to be compensated were proximately caused by the accident in question.
Now, I've used the term proximate cause. By proximate cause, we mean that the negligence of a particular party was a subsequent [sic] cause of the injury. That is, a cause which necessarily set the other causes in motion and was a substantial factor in bringing the injury complained of. It is a cause which naturally and probably led to, and might have been suspected to produce the injury complained of.
In addition, plaintiffs requested a jury instruction on damages based on Fosgate v. Corona, supra, 66 N.J. at 272-73, 330 A.2d 355. The requested charge stated that the defendant's
liability, if found by the jury, would include all damages incurred by plaintiffs unless defendant sustained the burden of proving that the damages could be apportioned between those attributable to plaintiff Jamie Scafidi's preexistent condition and those attributable to defendant's negligence. In effect, the requested charge imposed on defendant "the burden of segregating recoverable damages from those solely incident to the preexisting disease." Id. at 273, 330 A.2d 355. The trial court denied the request, instructing the jury generally with respect to the distinction between the damages claimed for the decedent's pain and suffering, and the damages sought by plaintiffs individually for loss of services and companionship. However, unlike the trial court in Fosgate, supra, 66 N.J. at 272-73, 330 A.2d 355, the trial court here did not charge the jury that defendant had no liability for damages attributable to Ms. Scafidi's preexistent condition. The import of the trial court's instruction was that if the jury found defendant's negligence to be a proximate cause of the infant's premature birth and death, defendant would be liable for all damages sustained by plaintiffs, presumably a more favorable instruction for plaintiffs than the one requested.
The jury determined that defendant was negligent, but found that defendant's negligence was not the proximate cause of the infant's premature birth and death. The Appellate Division reversed, holding that the traditional proximate-cause charge was an inappropriate standard for determining causation, and that the "increased risk" charge authorized by Evers should have been given to the jury:
We hold that the flexible Evers standard applies to all medical malpractice cases in which there is evidence that defendant's negligence increased the risk of the occurrence of the ultimate eventuating harm by failing to arrest plaintiff's downward medical course. In such cases, it is a jury question whether the increased risk resulting from defendant's negligence was a substantial factor in producing the ultimate harm. The rule applies even if plaintiff's case includes evidence which would satisfy a higher standard. [225 N.J. Super. at 582, 543 A.2d 95.]
The Appellate Division sustained the trial court's refusal to charge the jury on damages in accordance with Fosgate. Id. at 584, 543 A.2d 95.
To recover damages for the negligence of another, a plaintiff must prove that the negligence was a proximate cause of the injury sustained. See, e.g., People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 264, 495 A.2d 107 (1985). It is perhaps an understatement to acknowledge that causation "is an inscrutably vague notion, susceptible to endless philosophical argument, as well as practical manipulation." Robinson, Multiple Causation in Tort Law: Reflections on the DES Cases, 68 Va.L.Rev. 713, 713 (1982). Although the concept resists definition, we have described proximate cause as a standard for limiting liability for the consequences of an act based "'upon mixed considerations of logic, common sense, justice, policy and precedent.'" Caputzal v. The Lindsay Co., 48 N.J. 69, 77-78, 222 A.2d 513 (1966) (quoting Powers v. Standard Oil Co., 98 N.J.L. 730, 734, 119 A. 273 (Sup.Ct.1923), aff'd o.b., 98 N.J.L. 893, 121 A. 926 (E. & A. 1923)); accord D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts, § 41 at 264 (5th ed. 1984) (hereafter Prosser and Keeton on Torts).
Proximate cause is a factual issue, to be resolved by the jury after appropriate instruction by the trial court. In the routine case in which the plaintiff's injury can be traced to a single cause, the standard instruction on proximate cause -- and the one used by the trial court in this case -- describes it as "a cause which necessarily set the other causes in motion and was a substantial factor in bringing the accident about * * *," and further as a "cause which naturally and probably led to and might have been expected to produce the accident complained of." Model Jury Charges (Civil) § 7.11.
It is self-evident that in cases in which the defendant's negligence combines with a preexistent condition to cause an injury, the standard charge on proximate cause could confuse or mislead a jury. The language of the standard charge assumes that the defendant's negligence began a chaim of events leading to the plaintiff's injury. If a plaintiff has a preexistent injury or disability and is then adversely affected by a defendant's negligence, ...