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Weiss v. Goldfarb

June 16, 1998

NANCY WEISS, EXECUTRIX OF THE ESTATE OF RUSSELL M. WOOD, AND NANCY WEISS, EXECUTRIX OF THE ESTATE OF CHRISTINE WOOD, AND ROBERT E. WOOD, INDIVIDUALLY AND NANCY WEISS, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
v.
IRVIN GOLDFARB, M.D.; W.R. CHENITZ, M.D.; BASSAM HADDAD, M.D.; MARY LEE DOE, R.N. (A FICTITIOUS NAME); GUY DOE, R.N. (A FICTITIOUS NAME); JANE SMITH, R.N. (A FICTITIOUS NAME); DONALD RUBINSTEIN, M.D.; AMER AL-ZARKA, M.D.; ADOLF SENFT, M.D.; CECIL MATTHEWS, M.D.; EDWARD MANZELLA, M.D.; MICHAEL GUMA, M.D.; A. JOSEPHINE VILLANUEVA, R.N.; A. JOSE DAIRO, L.P.N.; LILY MATULAC, R.N.; R. BARCELONA, R.N.; AND JANE MOE I-V (A FICTITIOUS NAME), DEFENDANTS, AND ST. MICHAEL'S MEDICAL CENTER AND ANGELINA FORSHAGE, R.N., DEFENDANTS-APPELLANTS.



Chief Justice Poritz and Justices Handler, Pollock, O'hern, and Garibaldi join in Justice COLEMAN's opinion. Justice Stein has filed a separate Dissenting opinion.

The opinion of the court was delivered by: Coleman, J.

Argued February 2, 1998

On certification to the Superior Court, Appellate Division, whose opinion is reported at 295 N.J. Super. 212 (1996).

The issue raised in this medical malpractice case is whether a jury should receive an ultimate outcome instruction that, at the time of the alleged malpractice, the Charitable Immunity Act, N.J.S.A. 2A:53A-8, limited a hospital's liability to no more than $10,000. The trial court declined to give such an instruction. The Appellate Division in a published opinion concluded that the instruction should have been given. 295 N.J. Super. 212, 231-32 (1996). We granted St. Michael's petition for certification, limited to the question of the ultimate outcome instruction. 150 N.J. 26 (1997).

We reverse and hold that an ultimate outcome instruction should not be given to a jury concerning the statutory limitations of a hospital's liability.

I.

On June 19, 1989, Russell M. Wood was admitted to St. Joseph's Medical Center (St. Joseph's) in Paterson, New Jersey for treatment of heart disease and chronic renal failure. At the time, he was sixty-seven years old and suffered from long-term hypertension and various coronary and renal problems. Wood was diagnosed as suffering from non-sustained ventricular tachycardia, atrial fibrillation, and chronic kidney failure. An angiogram revealed some blockage of a coronary artery. He was placed on a heart monitor and began receiving dialysis treatments on a three-day-a-week schedule, remaining on the heart monitor during the treatments. Wood's cardiologist recommended the performance of electro-physiologic cardiac studies. Because St. Joseph's did not have the equipment needed to perform those studies, Wood was transferred to defendant St. Michael's Medical Center (St. Michael's) on Thursday, July 13, 1989.

Upon Wood's arrival at St. Michael's, he was immediately admitted to the telemetry unit where he was connected to a cardiac monitor under continuous supervision. Wood missed his Friday, July 14, dialysis treatment, and his doctor arranged to have that treatment provided the next day. Wood was taken to the dialysis unit about noon that Saturday, July 15. He arrived unconnected to a cardiac monitor, notwithstanding that no order had been written in his chart discontinuing the monitor. Although the dialysis unit was equipped with a cardiac monitor, Wood was never connected to it.

During dialysis treatment on July 15, Wood's vital signs remained normal from approximately 12:30 p.m. through 2:00 p.m. At 2:25 p.m., however, a nurse found Wood unresponsive with no blood pressure. Despite being successfully resuscitated, he sustained irreversible brain damage as a result of the loss of oxygen and remained in a coma until his death on August 28, 1989. Plaintiff's experts opined that had his heart been monitored during the dialysis treatment, the cardiac arrest could have been avoided altogether or counteracted in time to avoid brain damage. Plaintiff instituted the present litigation against St. Michael's, two dialysis nurses, two residents who had attended decedent in the telemetry unit, and all the attending doctors, Drs. Rubenstein, Goldfarb, Senft, Haddad, and Chenitz. Prior to trial, partial summary judgments were granted dismissing Dr. Chenitz and the two residents. Following the close of plaintiff's case, her claims against Dr. Goldfarb and the two dialysis nurses were dismissed pursuant to Rule 4:37-2(b). The case was submitted to the jury against St. Michael's and Drs. Rubenstein, Senft, and Haddad. As noted previously, the trial court denied plaintiff's request to inform the jury that St. Michael's liability was capped at $10,000.

The jury returned a verdict finding no cause of action against the doctors, but finding the hospital negligent. The jury awarded total damages of $150,000. The trial court molded the verdict and entered judgment for $10,000 based on the Charitable Immunity Act. Plaintiff's subsequent motion for a new trial was denied. She appealed several court rulings, including the denial of her request to give an ultimate outcome charge to the jury.

The Appellate Division affirmed the partial summary judgments in favor of Drs. Chenitz and the two residents. 295 N.J. Super. at 220. It also affirmed the dismissal of the complaint against Dr. Goldfarb and one of the nurses. Id. at 221-22. The court reversed the dismissal of the claim against Nurse Forshage at the end of plaintiff's case. Id. at 227. It also reversed the jury's verdict of no cause of action in favor of Dr. Haddad. Id. at 226-27. The court affirmed the judgment of liability against St. Michael's and the amount of the damages award of $150,000. Id. at 233. The court determined that plaintiff was entitled to an ultimate outcome charge instructing the jury on the limitation on St. Michael's liability. Id. at 232. It remanded the case for a new trial on liability only against Dr. Haddad and Nurse Forshage. Id. at 233. The retrial, however, would require apportionment of liability if either Dr. Haddad or Nurse Forshage was found liable. Therefore, the case against St. Michael's was remanded as well for apportionment purposes. Id. at 228.

II.

St. Michael's argues that the Appellate Division's decision impermissibly interferes with its legislatively created limited immunity under the Charitable Immunity Act. The hospital asserts that by ordering an ultimate outcome charge on the statutorily limited liability, the decision conflicts with the holding in Johnson v. Mountainside Hospital, 239 N.J. Super. 312 (App. Div.), certif. denied, 122 N.J. 188 (1990).

St. Michael's maintains that an ultimate outcome charge is distinguishable from similar charges given in comparative negligence cases and the lost-chance line of cases following Scafidi v. Seiler, 119 N.J. 93 (1990), because the charge in the present case does more than merely advise the jury of the legal effect of its findings. St. Michael's argues that in comparative negligence and Scafidi-type cases, the ultimate outcome charge guides a jury in its essential function of apportioning responsibility for the total injury involved. The hospital maintains that its legislatively mandated limitation on liability is irrelevant to the role of the jury as fact-finder.

Plaintiff maintains that Johnson, supra, was wrongly decided and is contrary to the holding of Roman v. Mitchell, 82 N.J. 336 (1980), that required an ultimate outcome charge in comparative negligence cases. Plaintiff expresses concern that in situations in which, as in this case, both the hospital and individuals employed by it are represented by the same attorney, that in the absence of an ultimate outcome instruction, an attorney will attempt to misguide the jury into finding liability against only the hospital because of the hospital's statutorily limited liability.

III.

-A-

The Charitable Immunity Act was enacted by the Legislature in response to Benton v. Y.M.C.A., 27 N.J. 67 (1958), Collopy v. Newark Eye & Ear Infirmary, 27 N.J. 29 (1958), and Dalton v. St. Luke's Catholic Church, 27 N.J. 22 (1958), which overruled judicially declared immunity for certain charitable organizations. In 1959, subsequent to the Collopy trilogy of cases, the Legislature passed N.J.S.A. 2A:53A-8, which provides charitable immunity for nonprofit hospitals for negligence liability exceeding $10,000. The statute states:

[A]ny nonprofit corporation, society or association organized exclusively for hospital purposes shall be liable to respond in damages to such beneficiary who shall suffer damage from the negligence of such corporation, society or association or of its agents or servants to an amount not exceeding $10,000.00, together with interest and costs of suit, as the result of any 1 accident and to the extent to which such damage, together with interest and costs of suit, shall exceed the sum of $10,000.00 such nonprofit corporation, society or association organized exclusively for hospital purposes shall not be liable therefor.

[N.J.S.A. 2A:53A-8. *fn1 ]

The constitutionality of the statute, which is not before us, was upheld in Edwards v. Our Lady of Lourdes Hospital, 217 N.J. Super. 448 (App. Div. 1987). The Legislature expressed the purpose of the Charitable Immunity Act as follows:

This act shall be deemed to be remedial and shall be liberally construed so as to afford immunity to the said corporations, societies and associations from liability as provided herein in furtherance of the public policy for the protection of nonprofit corporations, societies and associations organized for religious, charitable, educational or hospital purposes.

[N.J.S.A. 2A:53A-10.]

In furtherance of that purpose, this Court has held that the Act must be liberally construed to provide immunity for the protection of nonprofit corporations organized for religious, charitable, educational, or hospital purposes. Schultz v. Roman Catholic Archdiocese of Newark, 95 N.J. 530, 537-38 (1984). New Jersey is in the small minority of jurisdictions that have either partially or wholly retained the doctrine of charitable immunity. See Janet Fairchild, Annotation, Tort Immunity of Non-governmental Charities-Modern Status, 25 A.L.R.4th 517, 539-46 (1983); see, e.g., Williams v. Jefferson Hosp. Ass'n, 442 S.W.2d 243 (Ark. 1969); Purcell v. Mary Washington Hosp. Ass'n, 232 S.E.2d 902 (Va. 1977).

Massachusetts has statutorily limited recovery against a charitable organization to $20,000. Mass. Gen. Laws ch. 231, § 85K (1985). Although the Massachusetts law is very similar to New Jersey's, its case law does not directly address whether juries should be apprised of the limited liability of charitable entities. See, e.g., Harlow v. Chin, 545 N.E.2d 602, 612-13 (Mass. 1989) (finding that although trial court did not make specific finding, it was on notice that hospital was charitable organization; trial court should have entered judgment against hospital limited by statutory cap). Similarly, other states have not addressed the issue.

The two federal cases relied on by the Dissent do not support an ultimate outcome instruction. Post at ____ (slip op. at 13-15). Unlike the present case, those cases required the jury to resolve factual issues concerning statutory damages.

In In re Aircrash in Bali, Indonesia, 871 F.2d 912 (9th Cir. 1989), relatives of Pam Am Airline passengers sought to recover more than the $75,000 limitation imposed by the Warsaw Convention (Convention). Id. at 814. To achieve that goal, plaintiffs sought to persuade a jury that the airline engaged in willful misconduct or that it failed to notify its passengers of the $75,000 Convention limitation. Id. at 814 n.1. The damage limitation was placed before the jury in order for it to perform its role as fact-finder. Id. at 815. Vinieris v. Byzantine Maritime Corp., 731 F.2d 1061 (2d Cir. 1984), involved a jury trial for civil penalties, pursuant to 46 U.S.C.A. § 596, based on a ship captain's alleged failure to pay earned wages to a seaman. Id. at 1062. The Court of Appeals held that because the jury had to decide whether the captain violated the statute by acting arbitrarily, unreasonably or willfully, he should have been permitted to testify that he had personal knowledge of the substantial statutory penalties, thereby inferring that he would not have violated the statute. Id. at 1064. Here, too, the statutory damages were placed before the jury because that information was essential to the jury's fact-finding role. In the present case, the statutory damages are irrelevant to the jury's role.

-B-

Plaintiff's claims against the multiple defendants that each was negligent and that such negligence proximately contributed to the death of the decedent, required the jury to apportion the total negligence between all defendants found liable. Such apportionment implicates the comparative negligence statute, N.J.S.A. 2A:15-5.1 to -5.3. Plaintiff's request for an ultimate outcome instruction concerning the hospital's limited liability was based on the ultimate outcome charge used in comparative negligence and lost-chance cases.

This Court first allowed an ultimate outcome instruction in a comparative negligence context in Roman v. Mitchell, supra, 82 N.J. at 345. There, the Court concluded that, in a comparative negligence case, the jury should be informed of the legal effect of its findings. Ibid. Noting that the comparative negligence statute made no mention of whether juries should be informed of the statute's legal effect, the Court held that the jury "should be given an ultimate outcome charge so that its deliberations on percentages of negligence will not be had in a vacuum, or possibly based on a mistaken notion of how the statute operates." Ibid.

The Court reasoned that an ultimate outcome jury instruction was not a novelty in the jurisprudence of negligence. Prior to the adoption of our comparative negligence statute, a plaintiff's contributory negligence was a complete bar to recovery if it proximately contributed to the occurrence of an accident. Dziedzic v. St. John's Cleaners & Shirt Launderers, Inc., 53 N.J. 157, 161, 164-65 (1969); Kaufman v. Pennsylvania R.R. Co., 2 N.J. 318, 323-24 (1949). In such cases, the jury was given an ultimate outcome instruction that if it found contributory negligence on the part of a plaintiff to any degree that proximately contributed to the happening of the accident, the legal effect of that finding obligated the jury to return a verdict in favor of the defendant. Roman, supra, 82 N.J. at 345; O'Brien v. Bethlehem Steel Corp., 59 N.J. 114, 124 (1971). Moreover, the Roman court noted that requiring an ultimate outcome instruction was consistent with the trend in other jurisdictions. Roman, supra, 82 N.J. at 346.

When the Court in Roman acknowledged that an ultimate outcome instruction prevents a jury from applying a mistaken notion of how a statute works, and when it agreed with plaintiff that the jury probably intended that plaintiff recover 25% even though it found plaintiff 75% negligent, the Court by implication based its decision to require an ultimate outcome instruction partly on the fact that New Jersey had adopted a modified rather than a pure comparative negligence statute. N.J.S.A. 2A:15-5.1; Van Horn v. William Blanchard Co., 88 N.J. 91, 94 (1981). The New Jersey comparative negligence statute provides that a contributorily negligent plaintiff may recover, "if such negligence was not greater than the negligence of the person against whom recovery is sought." N.J.S.A. 2A:15-5.1. "New Jersey has a 'modified' comparative negligence system, as distinguished from a 'pure' system under which 'a ...


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