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Judy Komlodi, As Guardian For v. Ann Picciano


June 26, 2012


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5951-06.

Per curiam.


Argued May 4, 2011

Before Judges Ashrafi, Nugent and Kestin.

In this medical malpractice action, plaintiff, Judy Komlodi, appeals from a judgment of no cause for action entered on a jury verdict in favor of defendants Ann Picciano, M.D. and JFK Medical Center (JFK). The jury determined that plaintiff had proved by a preponderance of the evidence that Dr. Picciano deviated from accepted standards of family practice during her treatment of plaintiff's daughter, Michelle Komlodi,*fn1 and that Dr. Picciano's deviation increased the risk of harm posed by Michelle's pre-existing condition; but failed to prove that the increased risk was a substantial factor in producing the ultimate harm or injury suffered by Michelle. We reverse and remand for a new trial.


The following facts were adduced at trial. On August 2, 2004, thirty-one-year-old Michelle suffered an anoxic (oxygen depriving) brain injury after orally ingesting the drug fentanyl from a Duragesic patch that Dr. Picciano had prescribed for Michelle to attach to her skin to reduce pain in her lower back. Because Dr. Picciano's knowledge of Michelle's medical history is central to the disputed issues in this action, we begin with her doctor/patient relationship with Michelle.

Michelle's mother, Judy, arranged to have her daughter consult with Dr. Picciano. Judy was employed by JFK in the medical records office from 1989 to 1993. Dr. Picciano had practiced family medicine at JFK since 1990. Following Michelle's release from a drug rehabilitation treatment center in 1990, Judy referred Michelle to Dr. Picciano.

Michelle consulted with Dr. Picciano on June 24, 1991, for, among other things, a gynecological checkup. Dr. Picciano reviewed Michelle's charts, learned that "she had made [a] suicide attempt or gesture and that she had problems with alcohol and drug abuse," and noted that she had been in treatment for drug addiction and depression on several occasions in 1989 and 1990. During the consultation, Dr. Picciano observed no evidence of Michelle abusing drugs. Nevertheless, the doctor asked Michelle to return in July so that she could confirm or rule out the possibility that Michelle was suffering from major depressive disorder.

Michelle returned to Dr. Picciano on July 12, 1991. Concerned that Michelle was suffering from depression and anxiety, Dr. Picciano referred Michelle to a mental health center. When Dr. Picciano saw Michelle in November 1991, Michelle "seemed much better[,]" and she showed no signs of abusing drugs. Michelle saw Dr. Picciano four more times in 1992. During the last visit in December 1992, Dr. Picciano found no evidence that Michelle was using drugs. Dr. Picciano did not see Michelle for the next eleven-and-one-half years.

Sometime in 2002, Michelle began to use heroin. In November 2003, in an attempt to rid herself of her addiction, Michelle somehow obtained Suboxone, which was used to treat opioid dependence, and moved to Nevada with her ex-boyfriend. About six weeks later, in January 2004, Michelle returned to New Jersey, no longer addicted to heroin, and appearing healthier than when she had left for Nevada; but she began to work as a bartender and was consuming alcohol. Concerned about Michelle's history with drug abuse and continued alcohol consumption, her mother arranged for Michelle to return to Dr. Picciano. Judy told Dr. Picciano about Michelle's heroin use, which Michelle had discontinued six months earlier.

On June 7, 2004, Michelle presented at Dr. Picciano's office with complaints of insomnia, anxiety, depression, fatigue, palpitations, shortness of breath, back pain lasting six months, and prior "passive suicidal ideations." Michelle acknowledged using alcohol. She explained to Dr. Picciano that her back pain "fluctuates in severity," and that ibuprofen, Aleve, Advil, and Tylenol were not effective in relieving her pain. To obtain relief, she was applying a fentanyl or "Duragesic" patch, which she had obtained from a friend.

A Duragesic patch is applied to skin and contains fentanyl, a strong pain relief medication. Duragesic is the brand name of the patch, which is generically called a fentanyl patch. The patch's membrane causes the gradual release of fentanyl, which is absorbed through the skin over a seventy-two-hour period. For disposal after use, the manufacturer recommends that the patch be folded in half and flushed down the toilet, because the patch retains a potentially lethal dose after the seventy-two-hour period. This surplus of fentanyl is engineered into the patch to "drive the medicine through the membrane" that allows the fentanyl to be released. Fentanyl suppresses respiratory function when too much is taken.

Dr. Picciano did not ask Michelle how she was using the patch, and she assumed that Michelle used it properly by applying it to her skin. The only evidence adduced about Michelle's use of the fentanyl patch was from her roommate and boyfriend, Brian Firestone, who stated that she "wore [the patch] on her skin[,]" specifically on her back, and that he had never seen her put it in her mouth.

Dr. Picciano was unable to reproduce Michelle's lower back pain during the June 7 visit. Michelle did not complain of pain, she had full range of motion, Dr. Picciano's clinical examination of Michelle was negative, and her x-rays were normal. The doctor "didn't notice a patch" on Michelle's body. Dr. Picciano ordered blood tests to test liver function and for hepatitis, a virus "common in drug users."

That Michelle might be "drug seeking" may have crossed Dr. Picciano's mind. The doctor knew that Michelle had stopped using heroin before her lower back pain had begun, and she also knew that "body aches and pains," anxiety, and depression are symptomatic of drug withdrawal. Additionally, Michelle's medical history from 1992 to 2004 revealed that Michelle had visited the JFK Family Health Center about five or six times, but had not complained of orthopedic problems during those visits. Nonetheless, Dr. Picciano "didn't think [Michelle] was drug seeking." Michelle exhibited no drug-seeking behavior nor "any of the signs or symptoms" of drug withdrawal.

While trying to determine what was causing Michelle's back pain, Dr. Picciano considered that Michelle's depression, anxiety, and "passive suicidal ideations" might be manifesting as back pain. A countervailing consideration was that Michelle's involvement in an automobile accident "the summer before" was a possible source of the back pain. Regardless of the pain's cause, Dr. Picciano determined that Michelle needed help from a specialist, and gave Michelle the telephone numbers for Rutgers Behavioral Health and JFK Behavioral Health.

On June 10, 2004, Dr. Picciano telephoned Michelle to discuss some test results. On June 18, Judy informed Dr. Picciano that Michelle was not eligible for treatment at Rutgers, and would not be seen at JFK Behavioral Health for several weeks. Judy requested medication for Michelle to allow her to function normally until her appointment, and offered to administer medication to Michelle when necessary. Dr. Picciano "reluctantly" prescribed the anti-depressant Zoloft. She emphasized to Judy "the importance of no alcohol and monitoring her for suicidality" while Michelle was taking Zoloft. Dr. Picciano also stressed the need for Michelle to keep her appointment at JFK Behavioral Health.

During her July 22, 2004 appointment with Dr. Picciano, Michelle said she had missed the appointment at JFK Behavioral Health. Michelle complained of lower back pain at a level of nine on a ten-point scale. She was taking Percocet "a couple of[] times per week to get through work[,]" and also consuming alcohol, probably more than ten drinks daily. When unable to obtain Percocet from a friend, Michelle drank alcohol to function through the pain. Dr. Picciano did not know whether Michelle mixed the Percocet with alcohol, but assumed that she "probably" did. Michelle had taken all the Zoloft. Dr. Picciano believed that Michelle was deteriorating, "getting back into her addictions." Dr. Picciano was again unable to discern any signs of back pain. Michelle had full range of motion and no tenderness. The doctor thought that Michelle was drinking and taking Percocet because of multiple psychiatric problems that were not being treated appropriately, because she had an addiction, and because she believed that Michelle "really had back pain."

Dr. Picciano and Michelle discussed treatment options, and the doctor emphasized the importance of Michelle undergoing treatment for her psychiatric and addiction problems. Although Dr. Picciano believed that Michelle was experiencing pain, she also believed that Michelle "had no insight into her psychological issues" as the cause of the pain, which needed to be treated by a specialist. The doctor decided to treat Michelle's pain temporarily until August 1 when Michelle had an appointment at JFK Behavioral Health.

Michelle explained to Dr. Picciano that she had still been using Duragesic patches and Percocet, and only used alcohol when neither the patch nor the Percocet was available. Dr. Picciano believed that Michelle would not consume alcohol if prescribed a Duragesic patch because Michelle had been honest with her in the past and because Michelle's "drug of choice was a narcotic," not alcohol. The doctor prescribed Michelle ten Duragesic patches to temporarily manage Michelle's pain, each containing seventy-five micrograms of fentanyl. Since each patch lasted three days, a supply of ten patches would last Michelle one month, which would "bridge" Michelle to her appointment with JFK Behavioral Health. Dr. Picciano did not explain to Michelle how to open a Duragesic patch, and "usually rel[ied] on the pharmacist's [or the manufacturer's] instructions" rather than "giv[ing] every patient instructions on how to open their medication."

The Physician's Desk Reference (PDR) product description of a Duragesic patch warned that the "concomitant use" of opioids and alcoholic drinks "may produce additive depressant effects" and may cause hypoventilation, hypotension and profound sedation or coma. The fentanyl dose must be halved if a person using the patch will be drinking alcohol. The PDR also warned that respiratory failure could occur at any time during a patient's use of the Duragesic patch, and that the patch should be used with caution in those with a history of drug or alcohol abuse, especially for outpatient care.

When Dr. Picciano prescribed the patch, she explained to Michelle that she "absolutely couldn't drink alcohol when she was taking this," and Michelle assured the doctor that alcohol was not a problem because she could function without alcohol if she had a Duragesic patch. Had Dr. Picciano known that Michelle would continue using alcohol, she would not have prescribed the Duragesic patch.

On July 29, 2004, Judy telephoned Dr. Picciano and said Michelle had been "binging" on alcohol and was complaining that her stomach felt as though it were "torn apart." Dr. Picciano was "horrified" that Michelle was consuming alcohol. She instructed Judy to take Michelle to the JFK emergency room, but did not mention that she had prescribed the patch. Dr. Picciano did not know that Michelle had yet to obtain the patch. After talking with Judy, Dr. Picciano informed the attending emergency room physician at JFK, Dr. Sherrod Patel, a colleague in her group, "about Michelle's case," and told Dr. Patel to expect Michelle in the emergency room. She told Dr. Patel that Michelle required psychiatric intervention, and that he should try to transfer her to "any kind of inpatient unit."

When Michelle presented to the emergency room, her blood alcohol level was .36 and she tested positive for cocaine. Michelle told intake unit personnel that Dr. Picciano had given her a "fenetil" prescription for "outpatient detox," but she had yet to fill it. She was admitted overnight and discharged the next day. During the night, Michelle complained of back pain and was given Percocet, Ambien, Librium, Tylenol and Oxycodone.

On August 2, 2004, Michelle and her boyfriend each consumed a quarter pint of vodka and a quarter pint of brandy. Later that day, Michelle's mother drove Michelle to a Shop-Rite Pharmacy to obtain the patch. The pharmacist telephoned Dr. Picciano's office to request approval to change the prescription to five patches because Michelle could not afford the $500 cost of ten. After referring to Michelle's medical chart, a doctor with Dr. Picciano's group approved the request. Dr. Picciano had not noted in the chart that Michelle should not take fentanyl due to her hospitalization for alcohol use on July 29.

After filling the prescription, Michelle accompanied her mother and her mother's two-year-old granddaughter to her mother's medical appointment, so that Michelle could watch the granddaughter in the waiting room. While there, Michelle began to bite a Duragesic patch, trying to open it, and asked her mother for scissors. Her mother told her to open the patch at home, then left to see the doctor.

Shortly thereafter, the receptionist observed Michelle "passed out" in the waiting room, and informed another doctor. The doctor found Michelle unconscious, blue, not breathing, and without a pulse. The doctor carried Michelle into another room, where he found "a wadded piece of plastic in [Michelle's] mouth." Upon closer examination, he found that it was a Duragesic patch. He did not recall whether the patch was punctured, but described it as "chewed up." He resuscitated Michelle, and hooked her up to monitoring devices. She was put on a ventilator and taken to Raritan Bay Medical Center.

Plaintiff's expert, John Russo, M.D., was board certified in internal medicine. According to Dr. Russo, Dr. Picciano deviated from accepted medical standards of care in several ways. First, when she assumed that "over-the-counter medications will not improve the patient's complaints of back pain [when] she doesn't know historically what the duration of use, dosage or frequency of administration had been when the patient allegedly tried the medications[.]" Because Michelle presented to Dr. Picciano "without an urgent or emergent clinical finding of back pain," the standard of care required the doctor to institute a course of physical therapy, including application of hot compresses to the patient's back where the pain was occurring, taking a hot shower, and using an electric heating pad. Additionally, over-the-counter medications, such as Tylenol, should have been used long enough to determine whether they would reduce plaintiff's back pain. Dr. Russo testified that medications such as Motrin, Advil, or Aleve should have been used for a period of seven to ten days, and the patient should have been educated about the length of time it would take to determine whether heavier medications were necessary.

Dr. Russo testified that Dr. Picciano had an obligation to be familiar with the PDR warning that [t]he concomitant use of other central nervous system depressants including other opioids[,] sedatives or hypnotics, general an[]esthetics, phenothiazines, tranquilizers, skeletal muscle relaxants, sedating antihistamines and alcoholic beverages may produce an additive depressive effect[], hypo-ventilation, hypo-tension and profound sedation or coma . . . when such combined therapy is contemplated. The dose of one or both agents should be reduced by at least fifty percent.

Dr. Russo explained that alcohol would "potentiate the effect" of fentanyl from the Duragesic patch, that is, "it would be as if the dose had been doubled or tripled," and would thereby impair the body's ability to breathe. Dr. Russo further explained that because the amount of fentanyl in the Duragesic patch was the equivalent of "close to eighty Percocet," Duragesic patches were very desirable to addicts. Accordingly, the PDR warned that "Duragesic [patches] should be used with caution in individuals who have a history of drug or alcohol abuse especially if they are outside a medically controlled environment." Dr. Russo opined that Dr. Picciano should have been aware of those warnings.

Dr. Russo had been aware as early as 2004 that, though the patch was intended to be applied to the skin so that the fentanyl could be released over several days, addicts were puncturing the gelatinous material and putting it in their noses or mouths, thereby "enormously increas[ing] . . . the potency[, and] the danger is enormous because it's a very, very high dosage of the medication that . . . addicts unfortunately will . . . desire." Accepted standards of medical practice did not permit the prescription of narcotic medications to patients who were addicts engaged in drug-seeking behavior.

Dr. Russo concluded that Dr. Picciano deviated from accepted standards of medical practice by prescribing a seventy-five-microgram Duragesic patch to Michelle on July 22, 2009. In view of Michelle's history of drug addiction, the danger of prescribing the Duragesic patch was enormous. Dr. Russo further explained that because a risk of using a Duragesic patch while consuming alcohol was death, accepted standards of medical practice required supervision of a patient such as Michelle.

Dr. Russo also testified that Dr. Picciano deviated from accepted standards of medical practice on July 29, 2004, after learning from Judy that Michelle was abusing alcohol. Dr. Picciano should have educated Judy about the dangers of using the Duragesic patch while consuming alcohol, and should have urged Judy to get rid of the patch and not let Michelle fill the prescription "because of this enormous danger that's now posed to her."

Lastly, Dr. Russo testified, within reasonable medical probability, that Dr. Picciano's deviations from accepted standards of medical practice were a significant contributing factor to the anoxic brain injury that Michelle suffered on August 2, 2004.

Dr. Mark Graham, an expert who was a board certified specialist in internal medicine, testified on behalf of Dr. Picciano and disagreed with the opinions of Dr. Russo. Dr. Graham testified that accepted standards of medical practice are the same for family practitioners and those who practice internal medicine. According to Dr. Graham, Dr. Picciano "fully comported with all applicable standards of care." Dr. Graham opined that nothing Dr. Picciano did resulted in the adverse outcome to Michelle. Dr. Graham was asked the following question:

Were you able to reach an opinion to a reasonable degree of medical probability whether anything that Dr. Picciano did or did not do caused Michelle Komlodi or increased risk to caused Michelle Komlodi [sic] to have a very bad event, and suffer brain damage?

Dr. Graham responded that "if Dr. Picciano had done anything different or prescribed nothing, I think the outcome would likely have been identical to what it was." Dr. Graham further explained that under the totality of circumstances confronting Dr. Picciano, her treatment of Michelle "was actually the correct thing to do, it was the best of a list of bad options."

Dr. Graham explained that Dr. Picciano recognized Michelle's pain was part of an overall psychiatric complex that included magnified sensations of pain. Those sensations are an "integral part of the whole addiction, depression, anxiety syndrome." Dr. Picciano recognized the issue and attempted to obtain psychiatric help for Michelle. However, until Michelle saw the psychiatrist, she was going to be drinking alcohol to solve her pain, anxiety and depression, but she had "Hepatitis C with an active viral load," so drinking would have ruined her liver. To do nothing would have meant that Michelle would have continued to drink or would have attempted to obtain drugs on the street. "The best of a list of bad options would be a long acting opiate similar to the amount that she was getting from the street." In other words, "the safest option was to use a long acting narcotic, which if used properly would be very safe." Dr. Graham also testified that before 2005, "it wasn't general medical knowledge" that drug addicts were putting the Duragesic patch in their mouths.

After the parties had presented their cases, the court conducted a charge conference during which the plaintiff renewed a motion she had made pre-trial to strike the defense of comparative negligence. The court granted the motion, but decided it would be appropriate to instruct the jury on the doctrine of avoidable consequences. The court also denied the motions defendant had made to dismiss the case at the close of plaintiff's proofs, and for a directed verdict at the close of all evidence. Lastly, the court denied plaintiff's motions for directed verdicts on liability and causation.

Over plaintiff's objection, the court indicated that it would instruct the jury on the increased risk standard of proximate cause. See Scafidi v. Seiler, 119 N.J. 93 (1990). The court also decided to instruct the jury on intervening, superseding cause, despite plaintiff's objection to such an instruction.

The jury returned a verdict in favor of defendant. The court subsequently denied plaintiff's motion for a new trial and judgment notwithstanding the verdict. Plaintiff filed a timely appeal.


Plaintiff first contends that the trial court erred by giving a Scafidi charge because defendants failed to prove that a pre-existing disease or condition contributed to Michelle's injury. Plaintiff contends that the court compounded that error by giving a charge that was an "improper amalgamation of Model Jury Charges 6.10 (General Charge), 6.11 ('But for' Test), 6.13 (Foreseeability in Question), 6.14 (Intervening Superseding Cause) and 5.50E (The Scafidi Charge)." Defendants argue that the charge was appropriate because Michelle had a pre-existing condition that contributed to the harm she suffered.

Indisputably, "'[a]ppropriate and proper charges to a jury are essential for a fair trial.'" Reynolds v. Gonzalez, 172 N.J. 266, 288-89 (2002) (quoting State v. Green, 86 N.J. 281, 287 (1981)). The charge must necessarily track the burden of proof and the elements of a cause of action or defense, including, in a negligence claim, the element of causation. See id. at 289 (noting that "jury charges must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them" (internal quotation marks and citations omitted)).

In a medical malpractice action, "a plaintiff . . . must prove the applicable standard of care, that a deviation has occurred, and that the deviation proximately caused the injury[.]" Verdicchio v. Ricca, 179 N.J. 1, 23 (2004) (citations omitted). The elements of proximate cause are not the same for every medical malpractice case; rather, they differ depending upon, among other things, whether the plaintiff alleges a loss caused solely by a defendant's negligence, or whether concurrent causes, such as a defendant's negligence and a plaintiff's pre-existing disease or condition, combine to cause the ultimate harm.

[T]he traditional "but for" test that applies in most negligence settings "allow[s] recovery only when the injury is one that would not have occurred 'but for' the wrongful act." J.D. Lee & Barry A. Lindahl, Modern Tort Law: Liability & Litigation § 4.03 (West Group 2002); Conklin v. Hannoch Weisman, 145 N.J. 395, 417 (1996); Evers v. Dollinger, 95 N.J. 399, 415 (1984); Vuocolo v. Diamond Shamrock Chemicals Co., 240 N.J. Super. 289, 295 (App. Div.), certif. denied, 122 N.J. 333 (1990). However, the "but for" test has its limitations in situations where two or more forces operate to bring about a certain result and "any one of them operating alone would be sufficient." Modern Tort Law § 4.03. Indeed, the "but for" test has been characterized as a potentially "insurmountable obstacle" for a plaintiff in a case in which "unrelated factors may have contributed to the same injury." Diane Schmauder, An Analysis of New Jersey's Increased Risk Doctrine, 25 Rutgers L.J. 893, 895 (1994).

In response to the apparent limitation of the "but for" test in concurrent causation cases, New Jersey, like many jurisdictions, has adopted a modified standard -- the substantial factor standard -- "limited to that class of cases in which a defendant's negligence combines with a preexistent condition to cause harm -- as distinguished from cases in which the deviation alone is the cause of harm." Battenfeld v. Gregory, 247 N.J. Super. 538, 549 (App. Div. 1991) (citing Scafidi, supra, 119 N.J. at 108-09). [Verdicchio, supra, 179 N.J. at 23-24.]

It is error to give a "but for" instruction in a case where a defendant's negligence combines with a plaintiff's pre-existing condition to cause the plaintiff harm:

It is self-evident that in cases in which defendant's negligence combines with a preexistent condition, the standard charge on proximate cause could confuse or mislead the jury. In such a case, it is error to instruct the jury on the "but for" proximate cause test either alone or in combination with the substantial factor standard. [Tindal v. Smith, 299 N.J. Super. 123, 135 (App. Div.) (quoting Battenfeld, supra, 247 N.J. Super. at 549), certif. denied, 150 N.J. 28 (1997).]

Moreover, as the Supreme Court has cautioned, a "trial court's failure to tailor its instructions to the theories and facts presented" may, especially in complex cases, require a "remand for a new trial." Reynolds, supra, 172 N.J. at 288.

Here, the evidence did not clearly establish a Scafidi case, the jury charge included both "but for" and pre-existing condition/increased risk instructions, and the charge barely mentioned the facts and theories of the parties. Those errors require that the case be remanded for a new trial.

The central question in a "Scafidi-type case . . . 'is whether [a] plaintiff's damage claim should be limited to the value of the lost chance for recovery.'" Anderson v. Picciotti, 144 N.J. 195, 209 (1996) (quoting Scafidi, supra, 119 N.J. at 111). If the parties dispute the application of the Scafidi causation standard to the facts of a particular case, and the plaintiff objects to a Scafidi jury instruction, then the defendant must bear the burden of establishing the existence and identity of such a condition or disease. A preexistent condition or disease is one that has become sufficiently associated with a plaintiff prior to the defendant's negligent conduct so that it becomes a factor that affects the value of the plaintiff's interest destroyed by the defendant.

The burden of proof required to satisfy a Scafidi causation charge requires evidence that, within a reasonable degree of medical probability, demonstrates 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.

That burden must be sustained by a fair preponderance of the evidence. Although the Court has regarded the increase in risk resulting from the negligent act to be unquantifiable, a defendant nonetheless has the burden of segregating recoverable damages from those solely incident to the pre-existing disease. [Id. at 211-12 (internal quotation marks and citations omitted).]

In the case before us, plaintiff expressly objected during the charge conference to the court giving a Scafidi charge. The application of the Scafidi causation standard was far from clear. Defendants did not specifically identify Michelle's pre-existing condition as drug-seeking behavior, dependency on alcohol, dependency on drugs, or dependency generally. In short, defendants did not identify "the pre-existing disease and its normal consequences." Fosgate v. Corona, 66 N.J. 268, 272 (1974). Having failed to do so, defendants were not entitled to a Scafidi charge.

Nor did the trial court identify for the jury Michelle's pre-existing condition. Instead, the court referred to her "medical condition" and "her problems," but did not tailor those general references to any proofs or theories presented by the parties.

The problems occasioned by the defendants' and the court's omissions are evident when those omissions are considered in the context of plaintiff's liability theories and a key fact the jury had to decide: did Michelle deliberately bite into the patch to absorb the gel through her mouth and gums, or did she accidentally bite into the gel while attempting to remove the patch from the packaging?*fn2

Plaintiff's two primary liability theories were, first, that Dr. Picciano was negligent in prescribing the patch because in light of Michelle's history of drug and alcohol abuse, it was foreseeable that she would misuse the patch by deliberately applying the gel to her mouth or gums, or use the patch while consuming alcohol; second, that Dr. Picciano was negligent because after learning that Michelle was seriously abusing alcohol, the doctor failed to take appropriate measures to assure that Michelle would not use the patch and thereby risk anoxic brain injury. If the jury determined that Michelle accidentally bit into the patch when attempting to remove the packaging, it thereby would have rejected plaintiff's liability theory that Michelle was driven to deliberately bite into the gel because of the cravings caused by her drug and alcohol dependency.

Further, a finding that the incident was accidental would have negated any Scafidi issues because neither party suggested or presented evidence that either drug or alcohol dependency included the inherent risk that Michelle would accidentally consume a narcotic. And defendants never suggested that Michelle applying the patch to her skin as intended, but while consuming alcohol, implicated Scafidi principles. The defense theory of the case was that Dr. Picciano complied with applicable standards of care; that Michelle unforeseeably, deliberately bit into the patch to consume the gel; and, that plaintiff's initial suggestion -- that the incident was accidental -- "made no sense."

As to plaintiff's second theory, if the jury concluded (1) that Dr. Picciano deviated from the standard of care by failing to take appropriate measures to prevent Michelle from using the patch while abusing alcohol; and (2) that Michelle was not "seeking" narcotics on the day of the incident; such findings would have implicated no Scafidi issues. Defendants did not suggest that alcohol dependency carries with it an inherent risk that the dependent person will accidentally ingest a narcotic that, mixed with alcohol, can result in brain injury or death. And, as we have noted, the defense did not assert that Michelle's use of the patch while consuming alcohol presented an issue of Scafidi proximate cause.

Even if the Scafidi causation standard could be applied to one of plaintiff's liability theories, the jury was given no guidance as to when or how it should apply the legal principles to the facts as it may find them. See Reynolds, supra, 172 N.J. at 289. Moreover, the court improperly instructed the jury on "but for," and "substantial factor" causation. After charging the jury on plaintiff's burden to prove that Dr. Picciano deviated from accepted standards of family medical practice, the court instructed the jury:

The second question that you're going to have to ask or answer . . . is did . . . Mrs. Komlodi prove by a preponderance of the evidence, the greater weight of the credible evidence, that that deviation increased the risk of harm posed by Michelle Komlodi's medical condition that was present when she consulted with Dr. Picciano.

The court then instructed the jury substantially in accordance with Model Jury Charge (Civil) 6.11, "Proximate Cause - Routine Tort Case Where No Issues of Concurrent or Intervening Causes, or Foreseeability of Injury or Harm" (1999) (emphasis added):

Proximate cause means a cause that in an actual [sic] and continuous sequence produces the injury and without which that harm or injury would not have occurred. A person who is negligent is held responsible for any injury or harm which results in the ordinary course of events from her negligence. So, first, you must find that the resulting injury would not have occurred but for Dr. Picciano's negligent conduct.

Second, you must find that that negligent conduct was a substantial factor in bringing about the resulting injury. If you find that Dr. Picciano's negligence was a cause of the injury and was a substantial factor in bringing about the injury, that negligence was a proximate cause of the injury. . . . There was evidence in this case that at the time that Michelle Komlodi consulted with Dr. Picciano in 2004 that she had some problems . . . . Question No. 4 says did Dr. Picciano -- now the burden of proof is on Dr. Picciano -- did Dr. Picciano prove by a preponderance of the evidence that some portion of the ultimate injury sustained by Michelle Komlodi would have occurred even if Dr. Picciano had not been negligent.

The first question on the jury verdict sheet asked whether plaintiff had proved that Dr. Picciano deviated from the standard of care. The jury answered yes. Questions two through four were phrased as follows:

2) Did plaintiff prove by a preponderance of the evidence that the deviation by Dr. Picciano increased the risk of harm posed by Michelle Komlodi's pre-existing condition?

3) Did plaintiff prove by a preponderance of the evidence that that increased risk was a substantial factor in producing the medical condition of Michelle Komlodi?

4. Did Dr. Picciano prove by a preponderance of the evidence that some portion of the ultimate injury sustained by Michelle Komlodi would have occurred even if the treatment had been proper?

Even if Scafidi applied to the facts of this case, as suggested by the questions on the jury verdict form, the court erred by instructing the jury both on "but for" causation and "increased risk." Tindal, supra, 299 N.J. Super. at 135. Unlike Tindal, where we determined that the erroneous instructions on proximate cause did not require a new trial because the verdict was "premised on a finding of no negligence," id. at 138, here the jury determined that Dr. Picciano was negligent. Accordingly, we are constrained to reverse and remand for a new trial.

Plaintiff next argues that the trial judge erred by instructing the jury in accordance with Model Jury Charge (Civil) 6.13, on foreseeability. Plaintiff maintains that the issue of foreseeability was a red herring because Dr. Picciano admitted the risk of a drug addict cutting open the Duragesic patch and applying fentanyl to his or her gums was foreseeable; and therefore the issue should have been decided as a matter of law. Defendants argue that "[t]here was certainly no foreseeability that plaintiff would improperly seek to ingest the fentanyl patch with which she had experience and with which she had previously placed on her back."

Generally, "[p]roximate cause is a factual issue, to be resolved by the jury after appropriate instruction . . . ." Scafidi, supra, 119 N.J. at 101. The evidence in this case presented a factual dispute as to the foreseeability of plaintiff biting into the Duragesic patch and exposing her mouth and gums to the fentanyl. Resolution of that issue turned on Dr. Picciano's credibility, the credibility of the medical witnesses as to when it became generally known in the medical community that drug addicts were engaging in such conduct, and the determination of whether Michelle was an addict who was "drug-seeking" on the day of the incident.

When Dr. Picciano prescribed the Duragesic patch, the evidence was far from clear that Michelle was so addicted to narcotics that she would seek them by ingesting the gel containing the fentanyl. Her own representations to Dr. Picciano indicated that she was currently not "drug-seeking" because of drug dependency, but only used narcotics and alcohol to relieve the pain in her back. Dr. Picciano accepted Michelle's representations and her assurance that she, Michelle, would not use alcohol if the Duragesic patch were available. Dr. Picciano testified that none of her patients had ever bitten into a Duragesic patch, and she had never heard of anyone doing so. According to Dr. Picciano, the medical community was not aware that addicts were engaging in such conduct until a letter was circulated in 2005. Her expert confirmed that testimony. Plaintiff's expert contradicted that testimony. There was certainly a genuinely disputed issue, as of the date Dr. Picciano prescribed the patch, as to whether Michelle biting into the patch was foreseeable. Therefore, the trial court did not err in charging the jury on forseeability.

Plaintiff next contends that the trial court erred by instructing the jury on intervening, superseding cause, arguing that the charge was improper because Michelle's misuse of the patch was foreseeable. Defendants respond by reiterating that no one could anticipate that Michelle would attempt to cut open and ingest the patch.

"Ordinarily the[] questions of proximate and intervening cause are left to the jury for its factual determination." Rappaport v. Nichols, 31 N.J. 188, 203 (1959). However, to constitute an intervening, superseding cause, the intervening event or conduct must not be foreseeable. Cowan v. Doering, 111 N.J. 451, 465-66 (1988). As we have previously indicated, the foreseeability of Michelle deliberately biting into and ingesting the gel is a factual issue for the jury.

Nonetheless, we see no reason for the court to instruct the jury on both foreseeability and intervening cause, as those concepts relate to Michelle's deliberate biting into or ingesting the gel. If Michelle's deliberate act was foreseeable, then it was not a superseding cause that relieves Dr. Picciano from negligence. If the jury concludes that Michelle deliberately bit into the patch, and that such conduct was not foreseeable, then it should never reach the issue of superseding, intervening cause. Appropriate jury questions will eliminate the need to charge on both foreseeability and intervening cause as those concepts apply to Michelle deliberately ingesting the gel from the Duragesic patch.

Plaintiff also contends that the court improperly instructed the jury on the concept of avoidable consequences. Plaintiff insists that the doctrine should not apply in a medical negligence case where the doctor's duty of care to a patient includes the duty to protect the patient from self-damaging conduct. Defendants argue that the doctrine was applicable to plaintiff's damage claim because it was reasonable to expect her to be truthful in representing her history of drug and alcohol abuse, and to expect that she would use the "prescription treatment" for its intended purpose.

The doctrine of "[a]voidable consequences . . . comes into action when the injured party's carelessness occurs after the defendant's legal wrong has been committed." Ostrowski v. Azzara, 111 N.J. 429, 438 (1988). It is plain error not to instruct the jury on the doctrine of avoidable consequences when a jury could conclude that a patient could have mitigated damages by following a doctor's instructions. See Bryant v. Calantone, 286 N.J. Super. 362, 371 (App. Div. 1996). Cf. Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335, 343 (1994) (explaining that even in cases where the defense of contributory negligence is barred when the professional's duty includes exercising reasonable care to prevent the patient from committing self-damaging conduct, "[d]efendants can assert a patient's self-neglect to limit damages").

Here, the court barred the defense of contributory negligence, but instructed the jury on the doctrine of avoidable consequences. The jury was entitled to consider Michelle's "lack of concern for her own health needs as an aspect of the damages claimed." Tobia, supra, 136 N.J. at 342.

Lastly, plaintiff contends that the court erred by denying her motion for judgment notwithstanding the verdict. She argues that Dr. Picciano's liability "was not materially disputed," and thus requests a new trial limited to damages. However, as we have indicated, proximate causation remains a disputed factual issue that requires resolution by the jury. Consequently, plaintiff is not entitled to a retrial on damages only.

Reversed and Remanded.

ASHRAFI, J.A.D., dissenting.

Indicating no difficulty in understanding the evidence, the jury concluded in this case that defendant-doctor, Ann Picciano, did not proximately cause the devastating brain injury suffered by a competent adult patient, Michelle Komlodi, who grossly abused a prescription medication. The medication, a Duragesic fentanyl patch, was intended for external application to the skin for pain management. Because Michelle Komlodi was addicted to narcotic drugs, she chewed on the patch to ingest orally the fentanyl gel contained inside.

The majority opinion concludes that a retrial is necessary because the jury should not have been instructed to consider whether Michelle Komlodi's drug addiction and abuse of alcohol were pre-existing conditions that caused her injuries and absolved defendant-doctor from liability for prescribing the patches. I disagree and therefore dissent.

On August 2, 2004, Michelle Komlodi, then thirty-one years old, was in the waiting room of a doctor's office. She was there to watch a two-year-old child while her mother attended an appointment with the doctor. Earlier that day, Michelle Komlodi had consumed a pint of vodka and a quantity of brandy. Also earlier that day, she had purchased the pain patches prescribed for her eleven days earlier by Dr. Picciano to treat her chronic back pain. In the waiting room, she put a pain patch in her mouth and chewed on it to obtain the potent narcotic drug contained inside. Consequently, Michelle Komlodi suffered respiratory failure and resultant anoxic brain injury that has permanently incapacitated her.*fn1

Dr. Picciano, who practiced family medicine, had treated Michelle Komlodi in 1991 and 1992 and then resumed seeing her in 2004 when she returned complaining of back pain and other physical and psychological problems. Dr. Picciano knew in 2004 that her patient was addicted to drugs and abused alcohol. She had referred Michelle Komlodi for psychological evaluation and treatment to address her behavioral and substance abuse problems. At the time of the last office visit with Dr. Picciano on July 22, 2004, Michelle Komlodi had missed her scheduled appointment for a psychological examination. She was seeking pain medication from Dr. Picciano to treat her back. Dr. Picciano prescribed ten pain patches to manage the pain until her scheduled appointment for psychological examination.

According to Dr. Picciano's testimony, the external use of the patches seemed safer than other options, such as orally ingested pain medication, which presented a much greater risk of abuse and overdose. Also, Dr. Picciano knew that Michelle Komlodi was obtaining pain patches and other narcotic medications from unlawful sources. She gave her clear instructions not to drink alcohol while using the patches. Michelle Komlodi assured the doctor that the patches would replace her need for alcohol as a means of self-medication. The expert witnesses disputed at trial whether Dr. Picciano should have been aware at the time of the July 2004 prescription that some drug addicts were chewing pain patches to obtain the narcotic drug contained inside.

Plaintiff's liability expert at trial alleged several deviations in Dr. Picciano's course of treatment. The most significant one was prescribing pain patches for a drug addict who allegedly "craved" narcotics. A second significant allegation was that, four days before the incident in the waiting room, Dr. Picciano had learned that Michelle Komlodi was taken to a hospital emergency room because she had binged on alcohol. Dr. Picciano did not inform hospital personnel that fentanyl pain patches had been prescribed or note in her own medical chart that the patient had resumed abusing alcohol in disregard of the doctor's specific instructions.

After a lengthy trial with extensive expert testimony, the jury was asked to decide several questions posed on a Verdict Form. The jury answered three of them as follows:

1) Did plaintiff prove by a preponderance of the evidence that Ann Picciano, M.D., deviated from accepted standards of family medical practice?

Yes X No 7-0 6-1 5-2

2) Did plaintiff prove by a preponderance of the evidence that the deviation by Dr. Picciano increased the risk of harm posed by Michelle Komlodi's pre-existing condition?

Yes X No 7-0 6-1 5-2

3) Did plaintiff prove by a preponderance of the evidence that that increased risk was a substantial factor in producing the medical condition of Michelle Komlodi?

Yes No X 7-0 6-1 5-2.*fn2

In accordance with the court's instructions, the jury did not answer any additional questions pertaining to allocation of responsibility for the injuries and to monetary damages. The jury knew from the jury charge and from instructions on the Verdict Form that its third answer meant it had decided the case in favor of Dr. Picciano.

The questions put to the jury were in conformity with the law developed by the Supreme Court for cases of medical malpractice where a pre-existing condition of the patient is a cause that contributes to the ultimate injury or illness. Verdicchio v. Ricca, 179 N.J. 1 (2004); Reynolds v. Gonzalez, 172 N.J. 266 (2002); Scafidi v. Seiler, 119 N.J. 93 (1990); Evers v. Dollinger, 95 N.J. 399 (1984).

Michelle Komlodi's drug addiction was irrefutably a pre-existing condition that was a proximate cause of her ingestion of the injurious fentanyl gel, and her volitional abuse of alcohol was a proximate cause of the brain injury she suffered when she ingested the fentanyl. The defense argued to the jury that Michelle Komlodi's history of obtaining pain patches from a friend before Dr. Picciano wrote the prescription was evidence that the injury would have occurred without the prescription. The trial court properly gave a so-called Scafidi instruction to the jury on the question of pre-existing conditions as proximate cause.*fn3

In accordance with Verdicchio, supra, 179 N.J. at 24-25, and Reynolds, supra, 172 N.J. at 282-83, 285, the trial court also correctly instructed the jury that plaintiff had the burden of proving by a preponderance of the evidence that Dr. Picciano's deviation from the standard of care not only increased the risk of her injuries but was a substantial factor in causing those injuries.*fn4 As the Supreme Court explained in Verdicchio, supra, 179 N.J. at 25 (quoting Restatement (Second) of Torts § 433 cmt. d (1965)):

[M]erely establishing that a defendant's negligent conduct had some effect in producing the harm does not automatically satisfy the burden of proving it was a substantial factor:

Some other event which is a contributing factor in producing the harm may have such a predominant effect in bringing it about as to make the effect of the actor's negligence insignificant and, therefore, to prevent it from being a substantial factor.

Here, the jury concluded, as it appropriately had an option to do, that Dr. Picciano's deviation was not a substantial factor in causing Michelle Komlodi's injuries. The jury's verdict was based on the evidence and on correct instructions as a whole. It should be affirmed.

To be sure, the trial court erred by including a "but for" proximate cause charge*fn5 in the context of a case involving alleged multiple causes of plaintiff's injuries. Verdicchio, supra, 179 N.J. at 24; Reynolds, supra, 172 N.J at 283, 285; Scafidi, supra, 119 N.J. at 109; Gonzalez v. Silver, 407 N.J. Super. 576, 588 (App. Div. 2009). However, plaintiff's attorney did not object to that aspect of the proposed charge, either at the time of the charge conference or when the charge was given to the jury in the courtroom.

The phrase "but for" was stated only once in the charge as part of the general explanation of the concept of proximate cause. Following that single reference, the court explained at least four times during the remainder of the charge that the jury would have to determine whether any deviation it found in Dr. Picciano's treatment, and increased risk of harm to Michelle Komlodi, was a "substantial factor" in causing her injuries. That correct instruction was also repeated in writing for the jury in the form of question three on the Verdict Form.

The isolated misstep of including the "but for" reference in the context of a lengthy jury charge was not plain error "capable of producing an unjust result." R. 2:10-2; see R. 1:7-2; Gaido v. Weiser, 227 N.J. Super. 175, 198-99 (App. Div. 1988), aff'd o.b., 115 N.J. 310 (1989). This case is distinguishable from Gonzalez, supra, 407 N.J. Super. at 591 n.3, because the trial court gave a detailed and correct instruction on the meaning of "substantial factor," in accordance with Reynolds, supra, 172 N.J. at 282. There was no realistic risk that the jury would ignore the repeated proximate cause instruction based on the "substantial factor" test and instead apply a "but for" test of proximate cause to the issue of whether malpractice by Dr. Picciano was the proximate cause of the injuries.

Finally, I disagree with the majority that the trial court inappropriately charged the jury both on foreseeability*fn6 and on an intervening or superseding cause of the injuries.*fn7 Slip op. at 30. Both instructions were proper statements of the law for the jury to consider in determining defendant's liability.

Because the jury charge on the whole accurately stated the law applicable to the contested evidence in this case, see Wade v. Kessler Inst., 172 N.J. 327, 341 (2002); Fischer v. Canario, 143 N.J. 235, 254 (1996), I would affirm the jury's verdict.

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