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Anderson v. Picciotti

May 23, 1996

BARBARA ANDERSON, PLAINTIFF-APPELLANT,
v.
DR. JOSEPH PICCIOTTI, DEFENDANT-RESPONDENT, AND ASSOCIATED PODIATRISTS, J/S/A DEFENDANT.



On certification to the Superior Court, Appellate Division.

The opinion of the Court was delivered by Coleman, J. Chief Justice Wilentz and Justices Handler, Pollock, O'hern, Garibaldi and Stein join in Justice COLEMAN's opinion.

The opinion of the court was delivered by: Coleman

(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).

BARBARA ANDERSON V. DR. JOSEPH PICCIOTTI, ET AL. (A-72-95)

Argued January 17, 1996 -- Decided May 23, 1996

COLEMAN, J., writing for a unanimous Court.

In September of 1987, Barbara Anderson, an insulin-dependent diabetic, was referred by her orthopedist to Dr. Urbas, a podiatrist, for toenail care. While clipping her toenails, Dr. Urbas cut Anderson's right big toe, causing some bleeding. Over the following week, Anderson's toe became red and swollen. Unable to schedule another appointment with Dr. Urbas, Anderson visited her internist, Dr. Lurakis, who diagnosed cellulitis of the toe and prescribed an oral antibiotic and warm soaks for the toe.

On October 7, 1987, Dr. Lurakis admitted Anderson to Kessler Memorial Hospital for an unrelated illness. While in the hospital, Dr. Lurakis again examined Anderson's toe, which continued to be red and swollen. Dr. Picciotti, a podiatrist, was consulted. On October 8, 1987, Dr. Picciotti removed the toe nail and took a culture, which revealed the presence of a bacteria commonly found in foot infections and a common cause of osteomyelitis, an infection of the bone. Because he was concerned that Anderson may have osteomyelitis, Dr. Picciotti ordered a radiologic bone scan. Based on the radiologist's report that the bone scan indicated inflammation consistent with osteomyelitis, Dr. Picciotti, on October 14, 1987, advised Anderson that she had osteomyelitis of the right big toe. By that time, Anderson had been taking the oral antibiotics prescribed by Dr. Lurakis for four weeks. A second bone scan taken on October 20, 1987, revealed a slightly less certain, but nonetheless likely, indication of bone infection. On October 23, 1987, Dr. Picciotti amputated Anderson's right big toe. Dr. Picciotti had not obtained a bone biopsy before the amputation.

Anderson's medical malpractice action against Dr. Picciotti was tried on three theories of liability: 1) Dr. Picciotti deviated from accepted standards of care when he amputated Anderson's great toe without first obtaining a bone biopsy to make a definitive diagnosis of osteomyelitis; 2) Dr. Picciotti deviated from the proper standard of care because he failed to administer intravenous (IV) treatment for a non-osteomyelitic inflammatory process before amputating the toe; and 3) Dr. Picciotti performed the amputation without obtaining Anderson's informed consent. Dr. Picciotti defended, claiming that Anderson had osteomyelitis and that he did not deviate from the proper standard of care.

During a jury charge conference, defense counsel for Dr. Picciotti requested that the jury be charged in accordance with the enhanced risk standard of causation defined in Scafidi v. Seiler (Scafidi). In support of that charge, counsel argued that osteomyelitis was properly diagnosed pre- and post-operatively; that amputation was a proper treatment option for osteomyelitis; that because Anderson had osteomyelitis, IV treatment would not have guaranteed a cure; and that there was a risk that the toe would have been amputated anyway. The trial court declined to give a Scafidi charge, concluding that this was not a Scafidi increased risk type case. Accordingly, the jury was given the standard "but for" proximate cause instruction.

At the Conclusion of trial, the jury found that Dr. Picciotti deviated from accepted standards of medical practice by performing the amputation on Anderson's great right toe; that the deviation proximately caused her injury; and that amputation was performed with Anderson's informed consent.

Dr. Picciotti appealed to the Appellate Division, arguing that because it was possible that Anderson would have had an amputation anyway, it was improper not to charge the jury on increased risk or last chance of recovery pursuant to Scafidi. The Appellate Division reversed, finding that the evidence was insufficient to support the verdict in terms of causation. The panel reasoned that if Anderson had osteomyelitis, regardless of whether a bone biopsy was performed, amputation was conceded by all experts to be an accepted treatment option. Thus, amputation would have been unnecessary only if Anderson did not have osteomyelitis of the right big toe. Nonetheless, the Appellate Division did not dismiss Anderson's complaint. The court found that the evidence was sufficient for the jury to have concluded that Anderson did not have osteomyelitis and, that IV treatment would probably have cured the inflammation in her toe. The court also found that even if there was osteomyelitis that could not have been cured by IV treatment, such treatment would have offered a significant chance of cure. Viewed in that context, the court found Scafidi applicable.

The Supreme Court granted certification.

HELD: When a defendant requests a Scafidi -type causation instruction in a case in which an alleged pre-existing condition and the effect of the defendant's tortious conduct both harmed the plaintiff within a relatively short period of time, the defendant has the burden of proving the extent to which the pre-existing condition reduced the value of the plaintiff's resultant harm. A Scafidi charge was not warranted here.

1. Under Scafidi, a careful analysis of the evidence is required to determine whether the evidence is sufficient to permit a jury to decide, as a matter of reasonable medical probability, that both prongs of a two part test are satisfied. First, the evidence must permit a jury to find that defendant was negligent and that defendant's negligence increased plaintiff's risk of harm from an established pre-existing condition. If that prong is satisfied, then there are concurrent causes of the harm to the plaintiff. In that instance, the "but for" causation standard may not be charged to a jury. The second prong of the test requires a jury to apply the "substantial factor" standard of causation that directs a jury to determine whether the deviation in the context of the pre-existing condition was sufficiently significant in relation to the eventual harm to satisfy the requirement of proximate cause. In a Scafidi -type case, as with comparative negligence cases, the wrongdoer should be charged only with the value of the interest he or she has destroyed. (pp. 10-14)

2. There is neither an allegation nor any evidence that Dr. Picciotti's alleged negligence combined with a pre-existing condition to cause Anderson's harm. Thus, the Appellate Division properly determined that the evidence was insufficient to require a Scafidi charge or to permit apportionment under Fosgate. (pp. 14-16)

3. When it does not clearly appear that a Scafidi charge is required and a plaintiff resists such a charge, then a defendant has the burden of persuading the trial court that a Scafidi charge is appropriate. If a defendant seeks to reduce his liability by asserting that part of the harm is not attributable to his or her tortious conduct, the burden of proving both that the plaintiff's injury is capable of apportionment and what that apportionment should be should rest on the defendant; the defendant must establish the existence and identity of a pre-existing condition or disease. The burden of proof required to satisfy a Scafidi causation charge requires evidence that demonstrates, within a reasonable degree of medical probability, that the defendant's delay in making a proper diagnosis and rendering proper treatment increased the risk of worsening the condition or disease, and that the delay was a substantial factor in producing the plaintiff's current condition. Here, Dr. Picciotti did not adequately demonstrate that he was entitled to either a Scafidi or a Fosgate charge. (pp. 16-21)

4. In overturning the jury verdict, the Appellate Division read too narrowly Anderson's contention that Dr. Picciotti should have ordered a bone biopsy, interpreting the failure to obtain a pre-operative biopsy as negligence based on an act of omission. Anderson never contended that the failure to obtain a biopsy was a proximate cause of the amputation. Rather, she has consistently maintained that it was the absence of osteomyelitis that made the amputation unnecessary, not simply the failure to obtain the bone biopsy. Viewed in that context, Anderson proffered sufficient evidence from which the jury could have concluded that osteomyelitis did not exist, notwithstanding substantial evidence to the contrary. Finally, the record fails to disclose sufficient evidence to support the Appellate Division's Conclusion that failure to administer IV therapy constituted negligence; Dr. Picciotti and the experts stated that IV therapy would have made no difference here. (pp. 21-23)

Judgment of the Appellate Division is REVERSED and the jury verdict REINSTATED.

CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN join in JUSTICE COLEMAN's opinion.

The opinion of the Court was delivered by

COLEMAN, J.

The critical issue raised in this medical malpractice case involving the amputation of a toe is whether the jury should have been instructed in accordance with the enhanced risk standard of causation explicated in Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398 (1990). After the trial court denied defendant's request for an enhanced risk instruction, the jury found that defendant committed malpractice that proximately caused plaintiff to sustain $70,000 in damages. The Appellate Division reversed, finding, among other reasons, that an enhanced risk instruction should have been given.

We granted certification, 142 N.J. 455 (1995), and reverse. We hold: (1) this is not a Scafidi -type case; and (2) when a defendant requests a Scafidi -type causation instruction in a case in which an alleged preexistent condition and the effect of the defendant's tortious conduct both harm the plaintiff within a relatively short time, the defendant has the burden of proving the extent to which the preexisting condition reduced the value of the plaintiff's resultant harm.

I

Plaintiff, Barbara Anderson, has been an insulin-dependent diabetic since 1981 and suffers from heart problems, rheumatoid arthritis, which is in remission, and osteoarthritis, which causes pain in her back, neck, knees, feet, and hands. On September 10, 1987, plaintiff consulted with Dr. Marcelli, an orthopedist, for foot pain. During the examination the doctor observed that plaintiff's toenails were curved inward. He referred her to Dr. Urbas, a podiatrist, for nail care. While clipping her toenails, Dr. Urbas cut plaintiff's big toe, causing some bleeding. Over the following week, the toe remained red and swollen, and plaintiff, unable to obtain another appointment with Dr. Urbas, visited Dr. Lurakis, an internist who had cared for her since early 1986. Dr. Lurakis diagnosed cellulitis of the toe and prescribed an oral antibiotic and warm soaks for the toe.

On September 22, 1987, plaintiff visited Dr. Lurakis again, complaining of chest pains related to her heart condition. Because the chest pains persisted, Dr. Lurakis admitted plaintiff to ...


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