"But for?" Increased risk?" "Substantial factor?" A
comprehensive survey of proximate causation in the
medical malpractice case and where the burdens lie
today.
Recall your first-year torts class: obligatory elements
to prove a medical negligence case are: (1) a duty owed
by a defendant health care provider to the plaintiff
patient - a physician-patient relationship governed by
the applicable standard of care for a specialist or a
generalist, as the case may be; (2) a breach of
responsibility or deviation from the accepted standard
of healthcare practice; (3) a proximate causal nexus
linking contravention of the standard of care to the
plaintiff's ultimate harm; and (4) a resultant harm or
damages.
Of these prima facie prerequisites, "proximate
causation" is the most intellectually challenging for
the law practitioner. A series of New Jersey cases have
culminated in revised Model Civil Jury Charge 5.36E,
available online at the state's judiciary website. This
jury charge applies in all medical malpractice cases
involving the failure to diagnose or properly treat a
pre-existing condition, causing advancement
-exacerbation or acceleration - of an illness or
disease, and a lost chance of recovery or survival.
Almost all medical malpractice cases involve
pre-existing conditions such as cancer rendering the
traditional "but for" (the doctor's negligence) test of
causation illogical.
Application of the "but for" test would mean a defendant
physician's mistake alone caused damage in the absence
of an underlying disease process requiring care or
treatment. This is rarely the case. So, what causal
standard is required to answer the "which came first"
inquiry - pre-existing condition or health provider
negligence? The quagmire of legal causation needs to be
unraveled.
Shifting the burden
Traditionally, a defendant physician is liable only
for those personal injuries proximately caused by his
actions or omissions - the nearest cause - in providing
health care to a patient, not injuries caused by the
underlying condition a patient presents with or
complains of. In Fosgate v. Corona, 66 N.J. 268
(1974), a medical-malpractice lawsuit concerned a
physician's failure to diagnose and delay in treating
tuberculosis, allegedly resulting in advanced TB and
disseminated infection to the plaintiff's family
members. Despite precedential liability limits in
allocating fault and damages, the Fosgate court
held that where a malpractice act aggravates a
pre-existing disease, a defendant health care provider
is responsible for all ultimate injuries unless he can
demonstrate that portion of harm for which he alone is
responsible by apportionment. Citing Prosser, Law of
Torts, (4 ed. 1971),
s52 at 319, the court explained:
"The justification for this rests upon the fact that a
choice must be made, as to where the loss due to failure
of proof shall fall, between an entirely innocent
plaintiff and defendants who are clearly proven to have
been at fault to have done him harm."
Thus, innocent plaintiffs are not required to establish
which expenses, pain and suffering, disability and
impairment are attributable solely to the malpractice;
rather, the defendant, who by virtue of his superior
knowledge and expertise is in a better position to make
such an apportionment of responsibility, must do so.
This burden is particular to medical malpractice
proximate causation where there is a pre-existing
illness.
Physical vs. emotional damage
The court created a proximate cause dichotomy between
physical and emotional damages in Ciluffo v.
Middlesex General Hospital, 146 N.J. Super. 476
(App. Div. 1977). In Ciluffo the plaintiff
sustained injury in a fall and sued the hospital
emergency room for a delay in diagnosis of a cervical
fracture allegedly causing further physical injury and
emotional distress. Although plaintiff's experts could
not establish proximate cause between the delay and
added physical injury, plaintiff was permitted to prove
and recover emotional damages attributable to the delay
itself. Thus, the Appellate Division left the door open
for plaintiffs who cannot meet proximate causation for
physical injury to recover for pain and suffering upon
proof of a medical provider's causally related
negligence.
Subsequently, in Hudgins v. Serrano, 186 N.J.
Super. 465 (App. Div. 1982), a medical-malpractice
wrongful death survival action, the court opined that
where emotional distress results from a tortious
aggravation - even if not on a pre-existing condition -
the innocent plaintiff should not bear responsibility
for a failure of proof respecting apportionment between
the cause and consequences. Thus, by expansion of
Fosgate, on plaintiff's proof of negligent
consequences - even if only emotional damages -
physician defendants have the burden of convincing
jurors of their responsibility or impunity for
plaintiff's harms. And, in Linquito v. Siegel,
370 N.J. Super. 21 (App. Div. 2004), the Appellate
Division ruled that emotional damages - including
learning of the fact of malpractice - for failure to
diagnose cancer are subject to a Scafidi jury
charge and apportionment.
A decade after Fosgate, in the seminal case of
Evers v. Dollinger, 95 N.J. 399 (1984), the Supreme
Court defined proximate causation in a
failure-to-diagnose-cancer case. In Evers, a
seven-month delay in a breast cancer diagnosis
depreciated plaintiff's condition with growth of her
tumor and infiltration to the surrounding breast tissue,
although no metastasis occurred. The court instructed
traditional "but for" causation need not apply to a
delay in diagnosis claim; rather, plaintiff may prove
through expert testimony that to a reasonable degree of
medical probability (1) the delay increased the risk of
harm, and (2) such increased risk was a "substantial
factor" in producing the ultimate harm. Despite a denial
of relief for the possibility of recurrence (the
ultimate harm) which had not materialized at the time of
verdict, plaintiff was permitted compensation for the
increase in size and spread of her tumor (physical
injury) and for mental distress due to the delayed
cancer diagnosis (emotional injury), including
anticipated future consequences.
While the "substantial factor" test for proximate causation is not
unique to tort law, the novel, if not relaxed "increased
risk" antecedent derives from the Restatement
(Second) of Torts §323(a)(1965), providing in
relevant part:
One who undertakes ... to render services to another
which he should recognize as necessary for the
protection of the other's person or things, is subject
to liability to the other for physical harm resulting
from his failure to exercise reasonable care to perform
his undertaking, if
(a) his failure to exercise such care increased the risk
of such harm ...
Augmenting Evers, Karol v. Berkow, 254
N.J. Super. 359 (App. Div. 1992), suggested in dicta
that physical recurrence of disease damages were
available to a malpractice plaintiff if the probability
of recurrence could be statistically proved at more than
a 50 percent likelihood. Just as Evers was
predicated on expert testimony opining less than a 50
percent chance of breast cancer recurrence, Karol,
too, denied recovery.
Proximate cause through the years
In Ostrowski v. Azzara, 111 N.J. 429 (1988),
the New Jersey Supreme Court provided a historical
overview of proximate cause, remarking that this notion
- simplistically defined as a natural and continuous
sequence of events or creation of a foreseeable
unreasonable risk of harm -remains a concept puzzling
generations of law students, scholars and judges.
Proximate cause is a judicial fiat of sound public
policy rooted in logic, common sense and justice. The
court held that patient pre-treatment health habits may
not be attributed to causation, except if they become a
pre-existing condition. Nor may they be a consideration
of fault, as it is unfair to compare such prior habits
to a subsequent act of medical negligence. This is
analogous to the axiom a defendant must "take the
plaintiff as he finds him"; in medical malpractice
parlance - a defendant accepts for treatment "the
particularly susceptible patient."
Inversely, the Ostrowski court suggested a
patient's post-treatment health habits or actions are
relevant to apportionment of fault as a mitigation of
damages or avoidable consequences. Fosgate
applies to subsequent physician malpractice even where
pre-existing conditions are caused by an initial
independent tortfeasor, such as in an automobile
accident. See Lewis v. Preschel, 237 N.J. Super.
418 (App. Div. 1989). And, in Holdsworth v. Galler,
345 N.J. Super. 294 (App. Div. 2001), the Appellate
Division held that "normal" surgical complications of a
second surgery, after suit brought alleging negligence
committed during a first related surgery, do not
constitute a pre-existent condition warranting
application of Scafidi.
The progenitor medical malpractice pre-existing
condition proximate causation case was Scafidi v.
Seiler, 119 N.J. 193 (1990). Parents sued on behalf
of their child, alleged to have died shortly after a
premature birth due to the negligence of Dr. Seiler. The
court clarified and set a precedent for the proof
requirements in cases of a pre-existing health condition
- here, premature labor - requiring proof (1) of
negligence, or deviation from the standard of care; (2)
defendant's negligence increased plaintiff's risk of
harm from the preexistent condition; which (3) was a
substantial factor in causing harm to plaintiff.
Further, the Scafidi court defined "substantial
factor" to mean "sufficiently significant" in producing
the ultimate harm a plaintiff suffers. There is no
requirement the "risk of harm" be quantified to permit
recovery. Once these elements are established with
medical probability, upon defendant's proofs to limit
defense liability to the lost chance of recovery
directly caused, the jury determines the percentage of
likelihood that harm would have occurred if defendant
was faultless. Lastly, the trial court molds the total
damages verdict by this percentage apportionment. As to
placing the burden of proof of apportionment on the
defense - who, failing to meet this burden must
compensate all plaintiff's harm - the court said:
"[W]here a health care provider deprives a patient of a
significant chance for recovery by negligently failing
to provide medical treatment, the health care
professional should not be allowed to come in after the
fact and allege that the result was inevitable ....
Health care providers should not be given the benefit of
the uncertainty created by their own negligent conduct.
To hold otherwise would in effect allow care providers
to evade liability ... in situations in which patients
would not necessarily have survived or recovered, but
still would have a significant chance of survival or
recovery."
The same day in Olah v. Slobodian, 119 N.J. 119
(1990), the court reinforced Scafidi and
Evers. And in Lanzet v. Greenberg, 126 N.J.
168 (1991), the court held that a failure to instruct on
the increased risk/substantial factor litmus likely lead
jurors to improperly make an "all-or-nothing" (but for)
judgment on physician culpability.
Scafidi was further refined by Anderson v.
Picciotti, 144 N.J. 195 (1996), Ginsberg v. St.
Michael's Hospital, 292 N.J. Super. 21 (App. Div.
1996), and Golinsky v. Hackensack Medical Center,
298 N.J. Super. 650 (App. Div. 1997).
In Anderson, the Supreme Court clarified that a
medical malpractice plaintiff relying on Scafidi
in the case of a pre-existing condition generally must
prove the defendant's negligence caused an increased
risk of harm that was a substantial factor in causing an
ultimate injury. But when it does not clearly appear a
Scafidi charge is appropriate, and plaintiff
resists it, a defendant has the burden to persuade the
court to charge Scafidi. Otherwise, the
traditional "but for" standard of causation should be
instructed if combined (concurrent) causes are not in
evidence.
In Golinsky, as in Anderson, the court
reiterated that if the defense presents proof of
causation as to the existence and effects of a
pre-existing condition - despite resistance from the
plaintiff - a Scafidi charge including
apportionment should be submitted to the jury. And, as
discussed in Edwards v. Our Lady of Lourdes Hosp.,
217 N.J. Super. 448 (App. Div. 1987), a medical
malpractice plaintiff may strategically press forward a
"but for" theory of causation, despite evidence of a
pre-existing condition as presented by defense counsel
requiring an appropriate Fosgate charge.
In Ginsberg, the Appellate Division held the
trial court improperly charged both "but for" and
"increased risk/substantial factor" causation. The court
held that only the latter test should have been charged
because neither parties' expert testified negligence
alone would have produced death. Conversely, see
Tindal v. Smith, 299 N.J. Super. 123 (App. Div.
1997), certif. denied, 150 N.J. 28 (1997), holding that
where experts for both sides testified the illness could
not have developed without surgery ("but for"), a
Scafidi charge is inappropriate. Further, where the
Ginsberg jury found increased risk but not a
substantial factor, and brought a "no cause" defense
verdict, a new trial was required on this inconsistency.
In accord is Okulicz v. DeGraaff, 361 N.J. Super.
320 (App. Div. 2003), where finding of negligence but
not increased risk was held inconsistent where defendant
presented no contrary expert testimony.
Quantum of proof
A source of dispute among sage jurists is the level
of proof by expert medical opinion required to satisfy
the increased risk/substantial factor prongs in lost
chance medical malpractice lawsuits. Medical opinions
should be qualified to a "reasonable degree of medical
probability." Some practitioners elect "to a reasonable
degree of medical certainty" to impress on the jury a
greater degree of confidence, if not certitude, although
this is not law's calling. See Greene v. Memorial
Hospital, 299 N.J. Super. 372 (App. Div. 1997),
remanded, 151 N.J. 67 (1997), rev'd. 304 N.J. Super. 416
(App. Div. 1997). Probability can be defined as anything
greater than 50 percent, 51 percent or more, "more
likely than not," or as in football, "more than halfway
to the goal." But how do these concepts mesh with proof
of "increased risk" and "substantial factor" which could
seemingly be any subjective computation finding greater
than a zero percent contribution? The cases provide
guidance.
In Roses v. Feldman, 257 N.J. Super. 214 (App.
Div. 1992), plaintiff alleged a doctor was negligent in
failing to order chest X-rays when he treated decedent
for a cough, delaying the diagnosis and treatment of
lung cancer and ultimately causing death. Plaintiff's
expert opined by backward extrapolation that, to a
reasonable degree of medical certainty, defendant's
negligence in failing to take X-rays increased the risk
of harm posed by the pre-existing malignancy. The court
held this testimony was sufficient to create a jury
question as to whether the negligence was a substantial
factor in causing the death. Again, while "certainty"
expresses the greatest level of assuredness, it is clear
at least a probability of increased risk is required.
As to what the jurors should be told of the effects of
their decision on a proven apportionment of fault, the
answer came in Fischer v. Canario, 143 N.J. 235
(1996). There, the parties stipulated to a 50 percent
lost chance of cure due to negligence - 50 percent
likelihood of harm due to metastatic lung cancer. The
court held judges should instruct jurors with a Roman
v. Mitchell, 82 N.J. 336 (1980) "ultimate outcome"
charge conjoined with a Scafidi charge, so jurors
may understand the effects of apportionment on their
verdict.
This holding was reinforced in Weiss v. Goldfarb,
154 N.J. 468 (1998), wherein the Supreme Court explained
- though refusing application of Roman to the
hospital charitable immunity cap:
"Scafidi lost-chance cases are those involving a
defendant's negligence that has combined with a
preexisting condition to cause harm. Because those types
of cases require use of the 'substantial factor'
standard of causation rather than the 'but for' standard
... the legal principles that inform the determination
of causation with respect to damages are quite similar
to those involved in making the percentage of negligence
determination under the comparative negligence statute.
The comparison in Scafidi-type cases is between
the pre-existent condition and defendant's conduct to
arrive at the lost chance or apportionment of
responsibility on a percentage basis."
Again, the rationale for Scafidi is one of
fairness: A tortfeasor is only liable for the interest
he destroyed. A concomitant explanation of the
consequences of the jury's decision should be proffered
to them.
Scafidi and diagnostic test cases
A momentous decision relaxing Scafidi in
failure to perform diagnostic test cases came in
Gardner v. Pawliw, 150 N.J. 359 (1997). The parents
of a stillborn fetus sued an obstetrician alleging
failure to perform diagnostic tests that could have
revealed abnormalities in the umbilical cord and fetal
distress, increasing risk the fetus would die.
Generally, the court noted that to satisfy the first
prong of the Scafidi modified proximate causation
test applicable to medical malpractice pre-existent
condition cases, a plaintiff must prove to a reasonable
degree of medical probability physician deviation from
the standard of care increased risk of harm from the
pre-existing condition. However, if (1) the prevailing
standard of care indicates a diagnostic test should have
been performed, and (2) it is a deviation not to perform
same even if it is not known whether the test would have
helped diagnose or treat the pre-existing condition,
then (3) the first prong of Scafidi's modified
proximate cause standard does not require a plaintiff to
demonstrate to a reasonable degree of medical
probability the test would have diagnosed the condition
and resulted in avoiding harm. Rather, a plaintiff must
merely prove to a reasonable degree of medical
probability failure to perform such test increased the
risk of harm from the condition. Plaintiff may
demonstrate such increased risk even if such tests are
helpful in only a small portion of cases - that the test
"might have" revealed an abnormality and avoided the
harm. The court stated a defendant should not benefit
from uncertainties of results where he negligently fails
to perform a test.
Under the second prong of this modified proximate
causation, the jury must then weigh the expert testimony
to decide whether the increased risk created was a
substantial factor in causing the ultimate harm. In
accord, Hutchinson v. Atlantic City Medical
Center-Mainland, 314 N.J. Super. 468 (App. Div.
1998), where the court cited Gardner, implying
the following testimony of the plaintiff's expert given
at his deposition would have sufficed for submission to
the jury on causation:
"I think [a blood test on] the child may have [revealed]
... an incubating infection at the time of discharge
from the hospital [to require treatment and avoid
permanent disability]."
Again, an increased risk theory does not require
plaintiff to establish accurate results of diagnostic
testing would have necessarily prevented the ultimate
harm.
In further appropriation of Scafidi and
Gardner, in Greene v. Memorial Hospital, 304
N.J. Super. 416 (App. Div. 1997), a mother brought suit
against an emergency room on behalf of her minor
daughter who died, allegedly due to a delay in treatment
and diagnosis causing respiratory failure and death, and
for parental pain and suffering. As to the diagnosis and
monitoring delay, an appropriate charge should have been
submitted to the jury in accord with Gardner. And
the court indicated that a Scafidi-Gardner
proximate cause pre-existing condition instruction
applied not only to the underlying physical injury in
this wrongful death matter, but also to a family
member's derivative claim for pain and suffering where
emotional damages are permitted.
In Arenas v. Gari, 309 N.J. Super. 1 (App. Div.
1998), parents sued a pediatrician for their child's
wrongful death based on failure to diagnose - including
taking a temperature - a lung obstruction causing
pneumonia, respiratory failure and ultimately death. The
Appellate Division held Scafidi applied where
there was evidence defendant's negligence increased the
risk of occurrence of the "eventuating" harm by failing
to arrest the patient's downward aggressive medical
course. The court said the trial judge must, however,
modify the then-model charge to clarify it is not
declaring a pre-existing condition existed, only
providing the jury with the standard to apply if jurors
found as such.
In the first significant return to the issue of
pre-existing cancer since Evers, combining the
Gardner issue of failure to perform tests,
Verdicchio v. Ricca, 179 N.J. 1 (2004) involved a
failure to perform diagnostic imaging and make a
referral to a specialist, delaying diagnosis of
osteosarcoma in a 17-year-old who thereafter died. Of
issue was the fact plaintiffs could not demonstrate
metastasis to their son's lungs had not occurred prior
to the time of deviation. Plaintiffs did not present an
oncologist's testimony, only that of a family
practitioner as to the deviation and its effects in
Scafidi terms. The testimony showed that had cancer
been diagnosed at the time of deviation, (1) its stage
would have been known; (2) the mere passage of time had
given a window for it to metastasize; and (3) the boy's
chance of survival was reduced by the delay.
The court held such testimony was sufficient for a jury
to find an increased risk of harm that was a substantial
factor in harming this patient. A plaintiff need not
present proof of quantifiable probabilities of the
examination or test results, or of survival. Only the
lost opportunity for effective treatment due to the
passage of time must be demonstrated before the doctor
will bear the burden to apportion damages between the
pre-existing condition and his own negligence.
Furthermore, the defense expert's mere conclusory
testimony the boy would have suffered ultimate harm
anyway did not satisfy the defendant's apportionment
burden under Fosgate.
Substantial factor
Seven years after Scafidi, in Velazquez v.
Jiminez, 336 N.J. Super. 10 (App. Div. 2000), aff'd.,
172 N.J. 240 (2002), the Appellate Division addressed
another cavity in the notion of pre-existing condition
and modified proximate cause law - the quantification of
"substantial factor."
In Velasquez, suit was instituted by parents of
an infant who allegedly sustained fatal injuries due to
improper care at birth. The child was in distress from a
prolapsed umbilical cord and shoulder dystocia, and
delivered severely brain damaged, living only three
years. Given the requisite Scafidi causation
charge, the jurors found the sole defendant obstetrical
physician three percent negligent. Despite the lower
court's contrary ruling by judgment NOV, the appeals
court held a three percent fault finding sufficient to
infer the defendant doctor's negligence was a
substantial factor in bringing about the ultimate harm
to the child. Thus, where (1) there is evidence of
defendant's negligence; (2) such wrongdoing increased
the risk of a particularized harm to the plaintiff; and
(3) the negligence was a substantial factor in producing
the eventuating harm, apportionment of fault becomes a
jury question unrestrained by mathematical exactitude.
See also, Dubak v. Burdette Tomlin Memorial Hospital,
233 N.J. Super. 441 (App. Div. 1989), certif. denied,
117 N.J. 48 (1989), finding of 10 percent fault
satisfied the substantial factor test.
So, if the Scafidi "substantial factor" slogan is
not open to quantification, how should this phrase be
explained to the jury? The answer came in 2002 in
Reynolds v. Gonzalez, 172 N.J. 266, wherein
plaintiff sustained serious injuries in a dirt bike
accident. He sued his physician alleging failure to test
for, diagnose and treat his compartment syndrome,
resulting in nerve damage and foot paralysis. The jury
concluded (actually, two juries after two trials) the
deviation was not a substantial factor in causing
plaintiff's residual injuries.
The Supreme Court reversed and ordered a third new
trial, holding the verdict finding deviation and
increased risk of harm, but not "substantial factor" in
causing the resultant injury appeared inconsistent in
light of the experts' testimony, and was likely due to
confusion by the phrase "substantial factor" in the
court's instructions to the jury. The court reminded
that "substantial factor" means "sufficiently
significant in relation to the eventual harm" (Scafidi)
adding:
"[D]efendant's negligent conduct cannot be a remote or
an inconsequential contributing factor. It must play a
role that is both relevant and significant in bringing
about the ultimate injury. The relative weight of an
increased risk that is found to constitute a substantial
factor can be reflected by the jury in the apportionment
of damages between the increased risk and the
pre-existing condition."
The trial court should explain to the jury a defendant's
deviation need not be the only cause, nor a primary
cause, for negligent deviation to be a substantial
factor in producing the ultimate injury. Such
instructions must be tailored to the facts and
circumstances of the case. The court reinforced
Gardner's holding as to failure to perform
diagnostic tests: All that is required under the first
prong of modified causation is an increased health risk
- even if such test would only be helpful in a small
number of cases - where performing a test is the
standard of care.
Conclusion
It is clear that recovery in cases where a medical
malpractice deviation occurs in the presence of a
pre-existing health condition requires proof of
increased risk and substantial factor, and not a "but
for" causal link. Expert testimony is required to a
degree of reasonable medical probability as to the
purported standard of care deviation and "increased
risk," thus enabling the jury to decide whether such
negligence is a "substantial factor" in producing the
ultimate injury to the plaintiff. The "substantial
factor" prong is not subject to an exacting percentage
on finding a deviation that increased the risk of harm,
but by definition must not be insignificant nor
inconsequential. And, compensation for emotional injury
is not contingent on causation and proof of physical
injury, although Scafidi applies to both damage
types.
Whenever this two-pronged Scafidi test applies -
and it may be proceeded on by either the plaintiff or
defense, or both - the defense must apportion its own
responsibility from that of the pre-existing condition
or the plaintiff, upon proofs, may recover for all his
damages. Furthermore, where a doctor's deviation is
alleged to be a failure to perform diagnostic tests, the
plaintiff need not prove the statistical probabilities
of either test results or the chance to avoid harm.
However, proof of probability of a return of cancer is
required where the ultimate harm, recurrence or death,
has not occurred in order to recover for the physical
injury due to the recurrence. Healthcare testing need
only have been indicated by the standard of good medical
practice, and its usefulness need only be helpful in a
small proportion of cases to substantiate a jury finding
the failure to test increased the risk and was a
substantial factor in causing the patient harm.
Attorney Yale I. Markus has offices in Medford, NJ
and Boca Raton, FL. He concentrates in medical
malpractice and wrongful death matters. Dr. Maria P.
Markus, his wife and a pediatrician is on his staff.
Reach him at (609)268-1209 or
yimlaw1@aol.com.
