June 9, 2014
Causation Defenses in New Jersey
This new decision of the New Jersey Supreme Court restated the rule that denies the comparative negligence defense to doctors who negligently fail to guard against the patient’s self-injurious behavior. The Court also clarified that the celebrated “Scafidi instruction” to the jury – the “lost chance” doctrine, formulated in Scafidi v. Seiler, 574 A.2d 398, 403–04 (N.J. 1990) – is only available in progressive disease cases when a doctor negligently worsens his patient’s preexisting condition, thereby decreasing her chances of full or partial recovery. The Court held, as it did in the past, that when a patient’s negligence toward himself occurs during or after his substandard treatment by the physician, the physician can successfully invoke the “avoidable consequences” defense that reduces her compensation duty to the patient. Finally, the Court ruled that in cases involving extreme self-injurious behavior on the part of the patient, this behavior may be considered a superseding/intervening cause, which would allow the physician to avoid liability completely.
The Court delivered this important decision in a case featuring an alcohol and drug abuser who was treated for back pain. The patient’s physician did not heed her severe addiction and prescribed her a Duragesic patch that must be applied to the outer skin in order to release the painkiller drug fentanyl over a seventy-two hour period. Instead of applying the patch to her skin, the patient ingested it orally, which caused her a severe and permanent brain injury.
Under these facts, the Court decided that the physician could only invoke the “avoidable consequences” rule and possibly the “superseding cause” defense as well. The Court remanded the case to the trial court for proceedings consistent with this decision. The Court also mentioned the same-specialty requirement for expert witnesses. Testifying experts, it held, must work in the same specialty as the defendant physician.