On certification to the Superior Court, Appellate Division.
(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).
In this matter, the Court determines whether it should eliminate the substantial factor test in increased-risk medical malpractice cases.
In September 1992, plaintiff sustained serious injuries to his left leg in a dirt-bike accident. He was transported to the emergency room at Meadowlands Hospital in Secaucus. The emergency room physician made an initial diagnosis of tibial plateau fracture of the leg with possible compartment syndrome, a painful condition that occurs when there is swelling inside an enclosed compartment in the body. Generally, if the syndrome is suspected, the proper course of treatment is to check intracompartmental pressure and perform a fasciotomy (an incision) to relieve the pressure.
Plaintiff's treating doctor at Meadowlands Hospital was Dr. Gonzalez ("defendant"). Two days after plaintiff was admitted to the hospital, defendant operated on plaintiff's leg to repair his fracture. After the surgery, plaintiff noticed that his foot was numb and that he had some loss of control, an inability to flex the foot, and a burning sensation. Approximately two weeks later, plaintiff was placed in a leg cast and discharged. After two more weeks, defendant changed the cast because plaintiff complained of pain. The pain persisted with the changed cast, however, and plaintiff testified that he could not move his foot and it was flopping around. Defendant removed the second cast in December 1992. At that time, plaintiff was still unable to move his foot and it was numb with a tingling sensation. Plaintiff had slight mobility in his toes, however.
Late in December 1992, plaintiff fell outside his residence. Defendant examined plaintiff's leg and advised him that he needed additional surgery. Defendant sought a second opinion at the University of Medicine and Dentistry of Ne w Jersey (UMDNJ). When UMDNJ accepted him as a patient, plaintiff's foot was paralyzed and curled. The surgeons at UMDNJ inserted a rod from the lower leg to the foot to keep the foot flat. Plaintiff sought further treatment in August 1994 when he became a patient at the Hospital for Special Surgery in New York. There, surgeons operated on plaintiff's foot, resulting in the fusion of the foot into a permanent 90-degree angle. Plaintiff testified that he suffers from excruciating pain, loss of sensation and a severely affected gait.
In September 1994, plaintiff filed a medical malpractice action against defendant. The case was tried twice to a jury. Plaintiff argued at both trials that defendant was negligent for failing to properly monitor him for compartment syndrome, for failing to perform intracompartmental pressure measurements, and in casting the fractured leg when the compartment pressures were elevated. In addition, he argued that the nerve damage he sustained that resulted in his paralysis developed because of the undiagnosed and untreated compartment syndrome. Defendant argued that plaintiff did not have compartment syndrome while under his care and that the foot problems were caused by nerve damage sustained in the dirt-bike accident. Defendant explained also that it was his normal practice to perform a fasciotomy immediately when he suspected compartment syndrome, rather than to rely on diagnostic tests to confirm or rule it out. Both juries determined that defendant deviated from accepted standards of medical care by failing to test for compartment syndrome and that the deviation increased the risk of ultimate harm. However, both juries also concluded that the increased risk was not a substantial factor in producing plaintiff's paralysis and related complications. Following the first trial, the court granted plaintiff's motion for a new trial, concluding that the testimony of defendant and his expert either had misled or confused the jury. After the second trial, plaintiff filed a second motion for a new trial, and the trial court denied the motion without opinion.
Before the Appellate Division, plaintiff argued that the substantial factor test should be abolished or modified because it is confusing and misleading. The Appellate Division affirmed the denial of plaintiff's motion for a new trial, observing that it had no authority to modify or eliminate the substantial factor test.
HELD: In a medical malpractice case involving a claim that the negligence increased the risk of harm posed by a pre-existing condition, the Court reaffirms the need for a plaintiff to prove that the increased risk was a substantial factor in causing the ultimate harm.
1. New Jersey courts apply the substantial factor test in medical malpractice cases involving pre-existing conditions. The first inquiry in the substantial factor analysis is whether there is evidence demonstrating, within a reasonable degree of medical probability, that negligent treatment increased the risk of harm posed by a preexistent condition. Once that requirement has been satisfied, the jury must determine whether the increased risk was a substantial factor in causing the ultimate harm. If the jury determines that the plaintiff has satisfied the two-prong inquiry, it next must address the appropriate apportionment of damages. The damages awarded should be adjusted to reflect the extent to which the ultimate result would have occurred in the absence of defendant's negligence or solely by virtue of a preexistent condition. (Pp. 15 to 21).
2. The issue of a defendant's liability cannot be presented to the jury simply because there is some evidence of negligence. There must be evidence or reasonable inferences therefrom showing a proximate causal relation between defendant's negligence, if found by the jury, and the resulting injury. This Court has found that the application of a standard of causation that is more flexible than that used in conventional tort claims is appropriate in medical malpractice cases involving preexistent conditions. The two-prong increased risk, substantial factor test was adopted to address a plaintiff's different burden of proof because of the inapplicability of "but for" causation. The facts of this case illustrate the soundness of the two-part test. The Court rejects plaintiff's argument that the test is unnecessary. (Pp. 21 to 25).
3. Here, however, the jury's verdict may have resulted from some confusion about plaintiff's burden under the substantial factor causation test. The Court is persuaded that a clearer instruction on the substantial factor test would have been preferable, and remands for a new trial in this case with a modified substantial factor charge explaining to the jury the legal significance of the word "substantial." The Court refers the issue to the Committee on Model Civil Jury Charges, recommending modification of the substantial factor test in increased-risk medical malpractice cases and in the general instructions on proximate cause. Pending such modification, the Court instructs the trial court about explanations that it must provide to the jury on remand. (Pp. 25 to 28).
4. The trial court's failure to tailor its instructions to the theories and facts presented in this case also supports a remand for a new trial. Specifically, there was an absence of any explanation about plaintiff's burden of proving an increased risk based on defendant's failure to test for compartment syndrome. The jury may have determined that defendant's failure to perform the required diagnostic tests insulated him from liability. (Pp. 29-31).
5. Finally, there was a complete lack of any cross-reference in the jury charge on the law to the underlying evidence and plaintiff's theory of recovery. No attempt was made to relate the legal principles to the underlying factual allegations or to the parties' respective contentions. While not an independent source of reversible error, the abstractness of the trial court's instruction on the law increases the Court's concern that the second jury may not have understood adequately how to apply the legal principles that were to guide its decision. (Pp. 32-33).
The judgment of the Appellate Division is REVERSED and the matter is remanded to the Law Division for a new trial.
JUSTICES VERNIERO and LaVECCHIA, concurring in part, dissenting in part, concur in that part of the Court's opinion modifying the instruction on substantial factor causation in increased risk cases, but do not believe that a third trial is warranted in this case.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG and ZAZZALI join in JUSTICE STEIN's opinion. JUSTICES VERNIERO and LaVECCHIA filed a separate opinion concurring in part and dissenting in part.
The opinion of the court was delivered by: Stein, J.
In this appeal, plaintiff contends that the Court should eliminate the "substantial factor" test in increased-risk medical malpractice cases. See Scafidi v. Seiler, 119 N.J. 93 (1990); Evers v. Dollinger, 95 N.J. 399 (1984). We decline to do so. Instead, we modify the instructions on substantial factor causation in increased-risk cases to clarify plaintiff's burden of proof.
On September 19, 1992, plaintiff, who was then twenty-seven years old, sustained serious injuries to his left leg in a dirt- bike accident. Following his accident, plaintiff was transported to the emergency room at Meadowlands Hospital in Secaucus. An emergency room physician made an initial diagnosis of tibial plateau fracture of the left leg with a possibility of compartment syndrome. *fn1
Defendant was plaintiff's treating doctor at Meadowlands Hospital. During the initial physical examination on September 19, 1992, defendant observed that plaintiff had a "[s]evere[ly] crushed fracture of the left tibial plateau with severe peroneal injury" (referring to the peroneal nerve). He also observed that plaintiff could not dorsiflex (raise) his toes or ankle. However, a podiatric resident under defendant's supervision wrote in his September 19, 1992 notes that plaintiff had positive sensation and good range of motion (ROM) and that plaintiff was complaining that his toes were numb. In addition, he noted that defendant was notified of his findings.
On September 20, 1992, the resident again observed that plaintiff had positive ROM and sensation in all digits on the left foot. Defendant subsequently changed the positive ROM notation to read "PROM," indicating that plaintiff had only passive ROM. On September 21, 1992, two days after plaintiff was admitted to the hospital, defendant operated on plaintiff's leg for eight hours to repair his tibial plateau fracture. On September 22, 1992, the resident indicated that plaintiff had positive ROM and positive sensation but that plaintiff was complaining "of a lot of pain." On September 23, 1992, a second podiatric resident under defendant's supervision noted that plaintiff "ha[d] some numbness in [his left] foot but ha[d] good ROM." Defendant subsequently added the word "possible" to the notation to indicate that plaintiff possibly had good ROM. On September 29, 1992, one of the podiatric residents again noted that plaintiff had positive sensation and positive ROM in all digits on his left foot. Defendant once more changed the notation to read PROM.
Defendant placed his initials next to each altered notation to indicate that he had made the changes. He explained that although plaintiff was able to flex the joints in his left foot, he could not flex them beyond the neutral point at which a patient's movement correctly can be labeled "active."
Plaintiff testified that immediately after the surgery he noticed that his foot was numb and he had some loss of control, including an inability to plantar flex (depress the foot on extension) and dorsiflex. He also testified that he experienced a burning sensation on top of his foot. He testified further that defendant had been informed of those symptoms.
Plaintiff was placed in a leg cast and discharged on October 5, 1992. Defendant changed the first cast at plaintiff's insistence approximately two weeks after plaintiff was discharged. Plaintiff testified that he requested that defendant change the cast because it was painful and it made him feel like he "was climbing the walls." Plaintiff also testified that the pain remained even after the first cast was removed.
He added that he could not move his foot up, down or sideways and it was "flopping around." However, he added that he could move his toes slightly.
After defendant removed the first cast, plaintiff's left leg was placed in a second cast. Defendant removed plaintiff's second cast in December 1992. Plaintiff testified that after the second cast was removed he still was unable to move his foot and it was numb with a tingling sensation. ...