On certification to the Superior Court, Appellate Division, whose opinion is reported at 277 N.J. Super 302 (1994).
The opinion of the Court was delivered by Garibaldi, J. Chief Justice Wilentz and Justices Handler, Pollock, O'hern, Stein and Coleman join in Justice Garibaldi's opinion.
The opinion of the court was delivered by: Garibaldi
(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 interests of brevity, portions of any opinion may not have been summarized).
JERRY FISCHER V. ARTHUR T. CANARIO, M.D. ET ALS (A-56/91-95)
Argued October 23, 1995 -- Decided January 30, 1996
GARIBALDI, J., writing for a unanimous Court.
On October 11, 1984, sixty-one-year-old Rachel Fischer went to the emergency room of Newark Beth Israel Medical Center (Beth Israel) for treatment of a fractured shoulder. Dr. Arthur T. Canario, an orthopedic surgeon, admitted Mrs. Fischer for the night at her request. Dr. Canario was listed as the attending physician, although he did not treat her after her admission to the hospital. Mrs. Fischer was discharged the following day.
In accordance with hospital procedures for admitted patients, an x-ray was taken of Mrs. Fischer's chest. Dr. Norman Magid, a radiologist, interpreted the x-ray and prepared a report that indicated a probable tumor. That report was later attached to the x-ray and placed in Mrs. Fischer's hospital chart. However, Dr. Canario was not aware of this report. As the attending physician, Dr. Canario was required to sign the patient's chart, which he did approximately one week after Mrs. Fischer had been discharged. He looked through the chart at that time but did not see the x-ray or Dr. Magid's report.
In June 1987, Mrs. Fischer was diagnosed as suffering from metastatic lung cancer. After several months of treatment that included radiation therapy and chemotherapy, Mrs. Fischer died on February 16, 1988.
In April 1989, Jerry Fischer (Fischer), Mrs. Fischer's son and administrator of her estate, sued Dr. Canario and Dr. Magid for medical malpractice. The trial began in March of 1983. Fischer testified as to his mother's physical and emotional suffering; an economist testified as to the loss sustained by Mrs. Fischer's children and grandchildren; and the parties stipulated as to the medical and funeral expenses. Fischer also presented expert testimony that the standard of reasonable medical care required that prior to signing a patient's chart, a doctor must know of the results of all tests performed on his or her patient. The parties stipulated, and the Judge told the jury, that if the cancer had been diagnosed in October 1984, Mrs. Fischer would have had a fifty percent chance of survival. The Judge refused to include an ultimate outcome charge in the instructions to the jury.
The jury found Dr. Canario negligent and awarded Fischer a total of $134,231 in damages. Initially, the trial court determined that the damage-apportionment rule announced in Scafidi on May 24, 1990 applied and reduced the verdict by fifty percent to $67,115. After the trial, Fischer moved for an increase in the amount of damages awarded or, alternatively, for a new trial. The trial court denied those motions but reversed its initial ruling on the application of Scafidi. The court found that, based on the Appellate Division's interpretation of Scafidi's prospectivity in Roses v. Feldman, Scafidi did not apply.
Both parties appealed. On the Scafidi issue, the Appellate Division reasoned that the prospective application of the Scafidi rule was intended to apply only to causes of action that accrued after May 24, 1990, the date of the decision. Thus, the Appellate Division concluded that the trial court properly declined to apply Scafidi and the verdict remained $134,231. The Appellate Division rejected Fischer's ultimate outcome argument.
The Supreme Court granted Dr. Canario's petition for certification to review the Appellate Division's prospective application of the Scafidi damage-apportionment rule. The Court also granted Fischer's cross-petition to review whether the trial court erred in not providing the ultimate outcome charge to the jury.
HELD: Based on a weighing of the three factors -- public policy, reliance, and the effect on the administration of Justice -- the damage-apportionment rule announced in Scafidi on May 24, 1990 applies to cases tried after the date of that opinion. In addition, the trial court erred in declining to give the ultimate outcome charge; that omission was capable of misleading the jury.
1. In Scafidi, the Court held that in a case where the evidence demonstrates that negligent medical treatment increased the risk of harm posed to a patient by a preexisting condition, defendant's liability is limited to the value of the lost chance for recovery attributable to defendant's negligence. The Scafidi rule was given prospective application; however, case law that has addressed the scope of prospectivity offers little guidance. (pp. 6-9)
2. In determining the scope of prospective application of the Scafidi damage-apportionment rule, three factors should be examined: (1) the purpose of the new rule of law and whether it would be advanced by retroactive application (the public-policy factor); (2) the reliance placed on the old rule by the parties and the community; and (3) the effect that retroactive application would have on the administration of Justice. Any decision concerning prospectivity involves questions of public policy and basic notions of judicial fairness. Because of public policy and fairness, courts often have applied a new rule of law to all pending and future cases. (pp. 9-17)
3. The public-policy factor is pivotal in determining the degree of prospectivity that should attach to the Scafidi damage-apportionment rule. Scafidi clarified what already was implicit under Evers v. Dollinger, namely, that damage apportionment is an essential complement of Evers ' increased risk theory. Principles of fundamental fairness dictate that a physician's liability in a medical malpractice action be limited to the value of lost chance for recovery attributable to the doctor's negligence. Moreover, the rule serves an important societal interest as it relates to the increasing costs of medical care. (pp. 17-19)
4. A purely prospective application of the damage-apportionment rule would clearly frustrate the purpose of Scafidi. Although the rule represents a significant change in the law, it was foreshadowed by Evers and Fosgate and was, therefore, not unexpected. Application of the damage-apportionment rule does not upset any reliance interest and neither party can show that they would be unfairly prejudiced by the application of the rule. Application of the rule to cases tried after May 24, 1990 would not necessitate any retrials, thereby comporting with the third factor, administrative efficiency. (pp. 19-21)
5. The value of an ultimate outcome charge in lost-chance cases is that it informs the jurors of the effect of their causation apportionment. The charge makes clear that they are to award full damages, and the trial court will make any necessary adjustments to those findings. Thus, when the Scafidi damage-apportionment rule is applicable, an ultimate outcome charge generally should be given. In this case, an ultimate outcome charge should have been given by the trial court to prevent juror confusion and the possibility that jurors carried the fifty percent proximate cause figure into their deliberations on damages. (pp. 21-27)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for a new trial on damages only in accordance with this opinion.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and COLEMAN join in JUSTICE GARIBALDI'S opinion.
The opinion of the Court was delivered by GARIBALDI, J.
The primary issue in this appeal is the scope of the prospective application of the damage-apportionment rule announced by the Court in Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398 (1990). Also at issue is whether the trial court erred in refusing to give the jury an "ultimate outcome" charge.
On October 11, 1984, Rachel Fischer, then sixty-one years old, went to the emergency room of Newark Beth Israel Medical Center (Beth Israel) as a result of a fall. Dr. Arthur T. Canario, an orthopedic surgeon, examined an x-ray of her shoulder, diagnosed her injury as a fracture, applied a sling, administered medication for her pain, and told her to go home and make an appointment for a follow-up visit. However, Mrs. Fischer requested that she be admitted for the night, because she would be alone at her residence. Dr. Canario reluctantly admitted her and was listed as her attending physician, although he did not treat her after her admission. Mrs. Fischer left the hospital the next morning.
Pursuant to hospital procedure for admitted patients, an x-ray was taken of Mrs. Fischer's chest. Based on that x-ray, Dr. Norman Magid, a radiologist, prepared a report that indicated a probable tumor. Some time thereafter, that report was attached to the x-ray and placed in Mrs. Fischer's hospital chart. Dr. Canario was not aware of that report. Because Dr. Canario was listed as her attending physician, he was required to sign her chart, which he did approximately one week after Mrs. Fischer had been discharged from the hospital. Although he looked through the records attached to Mrs. Fischer's chart, he saw neither the x-ray nor the radiological report. According to Dr. Canario, they were not attached to her chart at that time because "it took a long time for x-ray reports to come back to the chart. It'd be highly unlikely it would be back in a week." Thereafter, Dr. Canario examined her bone fracture several times, but said nothing about her probable tumor, of which he was unaware.
In June 1987, Mrs. Fischer was diagnosed as suffering from metastatic lung cancer. After undergoing radiation therapy and two cycles of chemotherapy, and suffering from, among other things, brain seizures, she died on February 16, 1988.
In April 1989, Jerry Fischer, Mrs. Fischer's son and the administrator and administrator ad prosequendum of Mrs. Fischer's estate, sued Dr. Canario and Dr. Magid for medical malpractice. The trial commenced on March 18, 1993. At trial, Jerry Fischer testified about his mother's extensive physical suffering stemming from the cancer, including her severe nausea, loss of appetite, and general weakness. He also described the severe emotional repercussions of her chemotherapy treatment. As she lost her hair, Mrs. Fischer, a Holocaust survivor, began to relive her concentration camp experiences. Scars and bumps, hidden for years by her hair, were revealed and served as constant reminders of her World War II experiences.
Frank Tinari, an economist, testified for the plaintiff that Mrs. Fischer's children and grandchildren sustained a loss of over $100,000 by being deprived of Fischer's advice, guidance, and counsel during the period between her actual death and her statistical date of death (2006). He further testified that the children and grandchildren sustained a loss of over $44,000 due to loss of companionship. Based on testimony of Fischer's son and daughter, Tinari stated that the children had also lost the opportunity to ...