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Tobia v. Cooper Hosp. University Medical Center

Decided: June 28, 1994.


On certification to the Superior Court, Appellate Division.

Wilentz, Handler, O'Hern, Garibaldi, Stein, Pollock, Clifford

Per Curiam

Per Curiam

This appeal concerns a class of medical patients whose inability to care for themselves may require an extra measure of care by health-care professionals. The medical professions recognize the existence of such a duty in the case of certain patients whose infirmity, be it the product of age, substance abuse, or mental derangement, may pose a danger of either intentional or unintentional self-injury. The issue before us is how to relate that infirmity of the patient to the doctrine of contributory negligence.

In Cowan v. Doering, 111 N.J. 451, 545 A.2d 159 (1988), we held that a health-care professional could not assert contributory negligence as a defense to a suicidal patient's claim of neglect when the professional's duty included exercise of reasonable care to prevent the patient from committing self-damaging conduct. The central question in this appeal, then, is whether that principle of law applies to other categories of patients, such as the aged, incapacitated, or infirm. We hold that when a health-care professional's duty includes exercise of reasonable care to prevent such a patient from engaging in self-damaging conduct, the health-care professional may not assert contributory negligence as a defense to a claim arising from the patient's self-inflicted injuries. Were we to rule otherwise, the law of comparative negligence would significantly undermine and dilute the duty of care that the profession itself recognizes. The subsidiary issue in plaintiffs' appeal is whether trial-court error in submitting to the jury the issue of contributory negligence of an infirm patient in removing herself from the stretcher is rendered harmless by virtue of the jury's collateral finding of no negligence on the part of the treating professionals. We conclude that the confusion that may have been created in the minds of the jurors by the erroneous

contributory-negligence charge is so inextricably intertwined with the jury's deliberations on the duty of the health-care professionals that the verdict is irreparably tainted.


The case arises from plaintiff Giuditta Tobia's December 1987 admission to Cooper Hospital. (We shall refer only to her claims and not her husband's derivative claim.) Mrs. Tobia was eighty-five years old and was in urgent need of medical care. She was placed on a stretcher in the emergency room, and defendant Clifford Bernstein, who was then a fourth-year medical student, attended to her. (He is now a licensed physician. When we refer to him without his title, it is in the context of the incident and subsequent proceedings.) After Bernstein took a history of plaintiff's illness and while plaintiff was waiting to be taken to the X-ray area, plaintiff told Bernstein that she needed to use the bathroom.

The versions of the parties differ respecting exactly what happened next. Bernstein claims that plaintiff changed her mind and did not wish to use the bathroom. Because she seemed reasonably alert and competent, Bernstein left plaintiff sitting on the stretcher unattended. According to Mrs. Tobia, Bernstein lowered the stretcher's side rails and did not lock the wheels. Mrs. Tobia contends that she had to jump or slide to get off the stretcher, and that she fell to the floor in the course of doing so. She asserts that Bernstein was negligent in breaching Cooper Hospital's Emergency Room Policy and Safety Procedure No. 1, which specifies the following:

Any patient not being attended, or directly supervised or observed, either by a nurse or a doctor, shall be secured by having safety side rails raised on stretcher. This procedure will be specially monitored when handling patients who have symptoms of alcohol, drug ingestion, are unconscious, confused or elderly.

Plaintiff contends that Bernstein's failure to raise the guardrails caused the initial hip fracture, and that Nurses Emily Carey and Michael Lynch, who placed plaintiff in a wheelchair following her fall, caused the fractured hip to dislocate. Apparently, Dr. Marsha

Hyll approved the nurses' actions. Before us, the parties characterized the case as one of credibility, in which Mrs. Tobia claimed that she had been more or less brusquely told to get to the bathroom by herself, while Dr. Bernstein contended that Mrs. Tobia must have taken herself off the stretcher at a later time without properly asking for assistance. Plaintiff magnified the credibility issue when, at trial, she volunteered responses to questions in English even before the interpreter had completed the translation, despite her prior assertion that she did not understand the physician's instructions because her first language is Italian.

The case is further complicated by the fact that it involves two injuries and jury determinations concerning the extent of each injury, as well as the potential aggravation of the first injury by the second. The trial court bifurcated the liability and damages phases of the trial, presumably in an attempt to clarify and isolate the issues for the jury. Unfortunately, during the liability phase, the jury had no knowledge of the fact that Mrs. Tobia had suffered a fracture, much less a dislocation. Pursuant to another trial-court ruling, the most that the jury knew was that plaintiff had fallen off the stretcher and then had been moved by the nurses, thus suffering two distinct injuries, which were referred to only in the abstract as "the injury" and "the reinjury." Thus, the jury had no sense of the extent of Mrs. Tobia's injuries during the liability phase.

We have no record of the charging conference, and thus we do not know the basis for submitting the question of Mrs. Tobia's contributory negligence to the jury. At oral argument, defendants conceded that they had not asserted in their summations any contributory negligence by plaintiff. Nonetheless, the trial court submitted a special interrogatory to the jury asking for assessment of comparative percentages of fault to the total of 100%, and the jury found that the only party at fault with respect to the accident was Mrs. Tobia. Although the court's charge to the jury attempted to limit the so-called contributory negligence to the first

incident, we cannot assess whether the jury thought that its 100% contributory-negligence ruling with respect to the first incident would make Mrs. Tobia responsible for all the consequences thereafter, including potential aggravation of the first injury.

The trial court denied plaintiff's motion for a new trial. The Appellate Division affirmed in an unreported opinion. That court held as follows:

Conflicting inferences could reasonably have been drawn as to whether plaintiff exercised reasonable care and caution for her own safety at the time she attempted to get off the stretcher to go to the bathroom. The trial court, therefore, properly submitted the issue of plaintiff's negligence to the jury and properly instructed the jury on this issue.

Beyond this, any argument concerning the trial court's instructing the jury with respect to plaintiff's contributory negligence was rendered moot by the verdict. The jury's verdict concerning plaintiff's contributory negligence ultimately had no significance in the outcome of the matter, since the jury found that none of the defendants [was] negligent.

We granted plaintiff's petition for certification, 130 N.J. 18 (1992), and now reverse.



In a long series of cases, we have held that when a tortfeasor's duty includes exercise of reasonable care to prevent a party from engaging in self-damaging conduct, contributory negligence is barred as a defense. See Green v. Sterling Extruder Corp., 95 N.J. 263, 471 A.2d 15 (1984) (denying contributory-negligence defense to manufacturer of blowmolding machine that injured worker who was using machine for reasonably foreseeable purpose); Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 406 A.2d 140 (1979) (denying contributory-negligence defense to manufacturer of sheet-metal-rolling machine that injured worker who was using machine as part of assigned task). "As one writer * * * has said, 'once it is established that the defendant has a duty to protect persons from the consequences of their own foreseeable faulty conduct, it makes no sense to deny recovery because of the nature of the plaintiff's conduct.'" Green, supra,

95 N.J. at 272 (quoting Patricia Marschall, An Obvious Wrong Does Not Make a Right: Manufacturers' Liability for Patently Dangerous Products, 48 N.Y.U. L. Rev. 1065, 1088 (1973)). Hence, to allow a defense of contributory negligence when defendants' duties included protecting plaintiff from foreseeable self-inflicted injuries makes no sense.

As health-care professionals, defendants assumed a duty to exercise that degree of care for plaintiff that would have been exercised by any reasonable member of the profession under the same circumstances. The hospital has established a standard of care for its attending professionals: specifically, that no patient should be left unattended on an emergency-room stretcher with the side rails down. A question of fact arose with respect to the extent of that duty. Defendants' experts testified that once a physician is satisfied that a patient is competent and capable of transporting herself to the bathroom, to leave that patient unattended is not a violation of the hospital's standard of care. To that extent, an appropriately-tailored instruction may require the jury to consider whether plaintiff was sufficiently capable of caring for herself. If the jury finds plaintiff self-sufficient, the hospital and its health-care professionals might not have breached the duty of care. However, 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, is wrong.

In Ostrowski v. Azzara, 111 N.J. 429, 545 A.2d 148 (1988), we explained how the jury may consider a patient's lack of concern for her own health needs as an aspect of the damages claimed. In that case, a diabetic patient continued to smoke despite instructions to the contrary. We held that although such conduct might serve to minimize any damages attributable to the physician's neglect in attending to the patient's toe, it did not constitute contributory negligence. The theory is that the physician takes the patient as she is. The professional's duty of care is governed in part by the patient's physical condition. In this case, the

hospital's formulation of the relevant standard of care specifically encompassed the patient's condition.

We do not in any sense minimize patients' responsibility to care for themselves. Defendants can assert a patient's self-neglect to limit damages. Thus, if Mrs. Tobia had, while lying on the floor, deliberately violated the hospital professionals' instructions not to move, thereby aggravating her condition, a trier of fact could find that she had not mitigated her damages as she should have. However, that was not the theory under which the parties submitted this case to the jury. Presumably, Mrs. Tobia's alleged contributory negligence was that she was fully ...

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