A thirty-one-year-old woman went to a hospital's outpatient and behavioral health clinic complaining of back pain. She suffered from depression, anxiety, and drug and alcohol addiction. At the clinic, she told the doctor she had experienced insomnia, depression, fatigue, anxiety, shortness of breath, and weight gain. She also reported having passive suicidal ideation and cutting her wrists two weeks earlier.
She explained to the doctor that her back pain began after she stopped using heroin and that she did not find relief by taking over the counter pain relievers. She admitted that she was self-medicating with alcohol and drugs, such as Percocet and Duragesic patches, which were given to her by a friend. The doctor who examined her at the clinic had regularly treated the woman when she was a teenager, at a time when she was being treated by other doctors for drug addiction and depression. The doctor knew that bodily pains, anxiety, depression, and medication craving are all symptoms of drug withdrawal.
The doctor ordered an x-ray, seeking to determine the source of her back pain, and blood work. The doctor also advised the woman to contact a behavioral health practice. No medications were prescribed. Three days later, blood-test results suggested that the woman might have hepatitis C, a disease that poses a serious danger to the liver.
Eleven days after the woman first presented with back pain, the woman’s mother informed the doctor that the woman did not have insurance coverage for the behavioral health practice and that she was scheduled for an appointment at another behavioral health practice more than a month later. The mother expressed concern that, in the intervening month, her daughter needed medication to treat her depression. The doctor prescribed the anti-depressant Zoloft as a bridge until the mental health appointment. The doctor arranged for the mother to hold the pills and give her daughter only one-half a pill every day for the first week.
The doctor prescribed a Duragesic patch to treat her back pain. The Duragesic patch contained the powerful pain medication fentanyl, an opioid analgesic, in a gel form. The patch was designed to be attached to the skin and to release seventy-five-micrograms of fentanyl per hour over a seventy-two-hour period. The Duragesic patch was not intended for the management of mild or intermittent pain that can otherwise be managed by lesser means, but rather for the treatment of chronic pain that does not respond to Percocet, a medication for the relief of moderate to moderately severe pain. The seventy-five-microgram Duragesic patch was the equivalent of eighty Percocets. One side effect of the Duragesic patch was suppression of the respiratory system. The woman orally ingested the contents of the patch, which led to respiratory arrest and anoxic brain damage, causing severe and permanent disabilities.
The woman’s mother sued the doctor and hospital for medical malpractice. The complaint alleged that the doctor breached the governing duty of care by failing to protect the woman who had a history of alcohol and drug abuse from self-injury.
At trial, the parties agreed that a duty of care to prevent self-inflicted harm arises when there is a foreseeable risk that plaintiff's condition, as it is known to defendants, includes the danger that she will injure herself. The woman’s mother argued that prescribing a Duragesic patch to a drug- and alcohol-addicted patient, given her ongoing history, deviated from the applicable duty of care. The doctor and medical center argued that the doctor prescribed the patch as a stop-gap measure to treat the woman's pain so that she would not self-medicate while she was waiting for her appointment at a mental-health clinic.
The Middlesex County Superior Court charged the jury on preexisting disease or condition, also known as a Scafidi charge. The Scafidi charge is typically used in medical malpractice cases in which progressive diseases, such as cancer, are not properly treated or timely detected and thus the measure of damages is the patient's lost chance of recovery. The jury here was instructed to consider whether, based on the woman's preexisting condition, prescribing the Duragesic patch increased the risk of harm to the woman and whether it was a substantial factor in causing the ultimate injury. The court also charged the jury on superseding/intervening causation and avoidable consequences.
The jury found that the doctor deviated from the standard of care and that the deviation increased the risk of harm posed by the woman's preexisting condition. However, the jury found that the woman’s mother did not prove that the increased risk was a substantial factor in producing the woman’s medical condition. This last response meant that the doctor did not bear legal fault in causing the woman's anoxic brain injury. Therefore, the trial court entered judgment in favor of the doctor and hospital.
The Appellate Division of the Superior Court reversed and remanded. The appellate court found that the trial court erred in giving the Scafidi charge and, in any event, failed to articulate for the jury the nature of the preexisting condition or explain the proofs and parties' arguments in relation to the law. Also, the appellate court determined that the trial court should not have given a superseding/intervening cause charge because the general charge on foreseeability was sufficient. The doctor and hospital appealed.
The Supreme Court of New Jersey affirmed as modified and remanded. The court held that the preexisting disease or condition charge was not warranted, the superseding/intervening cause instruction that was molded to the facts of the case was warranted, and the avoidable-consequences charge that was adapted to the special circumstances of case was warranted.
The court agreed with the appellate court that the preexisting disease or condition charge, also known as the Scafidi charge, was not warranted. It was the woman's failure to properly use the patch after the doctor's negligence that was at issue. The woman could have avoided the consequences of the doctor’s negligence by properly using the patch. The court noted a distinction between the doctrine of preexisting disease and condition and the doctrines of comparative negligence, superseding/intervening cause, and avoidable consequences: the doctrine of preexisting disease and condition does not involve fault on the part of the plaintiff.
The court based its conclusion that a Scafidi charge was not warranted on a number of factors. First, the trial court failed to identify in its jury charge the preexisting condition or related the facts to the law as required by the Model Jury Charge. Second, the underlying facts did not involve the ineluctable progression of a disease on its own. Third, the ultimate harm caused to the woman was from her own conduct—whether volitional or not— after the doctor prescribed the Duragesic. Fourth, the doctor and medical center’s theory of the case, as clarified in their summation, was based on superseding/intervening causation and avoidable consequences, not preexisting condition. Finally, throughout the charge, the trial court failed to explain the complex concepts of causation in relation to the proofs and legal theories advanced by the parties.
The court disagreed with the appellate court’s determination that the charge on superseding/intervening causation was unnecessary in light of the general charge on foreseeability. A superseding or intervening act is one that breaks the chain of causation linking a defendant's wrongful act and an injury or harm suffered by a plaintiff. The jury had to determine whether, given the woman’s medical history of addiction to alcohol and drugs, her oral ingestion of the patch was reasonably foreseeable or was a remote or abnormal incident of the risk of self-injury that was not otherwise reasonably foreseeable by the doctor. Intertwined with that question was whether her act was volitional and not attributable to her disorder or condition. The superseding/intervening causation charge, if properly given, had the capacity to focus the jury's attention on the differences between the parties' contentions.
The avoidable-consequences charge that was adapted to the special circumstances of the case was warranted. A plaintiff is responsible for mitigating the consequences of a defendant's negligent conduct to the extent reasonable care can be exercised by the plaintiff, taking into consideration her health or mental condition. Whether a plaintiff acted reasonably must be examined in light of the plaintiff's capacity to care for herself. A plaintiff suffering from a health or mental condition may be capable, incapable or not fully capable of caring for herself as an ordinary person would. The jury had to determine whether and to what degree the woman had the capacity to act reasonably to care for herself in light of her health or mental condition. The avoidable-consequences charge, if properly given, would aid a jury in making that determination.
The Supreme Court of New Jersey affirmed as modified and remanded the appellate court’s reversal of the trial court’s judgment for the doctor and hospital.
See: Komlodi v. Picciano, 2014 WL 2050758 (N.J., May 20, 2014) (not designated for publication).
See also Medical Law Perspectives, January 2014 Report: Prescription Painkillers: Risks for Patients, Pharmacists, and Physicians
See also Medical Law Perspectives, May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication