Pre-Existing Conditions: Burden Shifting and the Apportionment of Damages
In order to establish negligence in a medical malpractice case, a plaintiff must usually present expert testimony to establish the applicable standard of care, that a deviation from the standard of care occurred, and that there is a causal connection between the breach/deviation and the plaintiff's injuries. Chin v. St. Barnabus Med. Ctr., 160 N.J. 454, 469 (1999); Rosenberg v. Tavorath, 352 N.J. Super. 385 (App. Div. 2002). Where the alleged malpractice involves the treatment of a pre-existing disease or condition, however, trying to decipher the damages that were caused by the underlying condition from the damages caused by the defendant’s alleged negligence can sometimes be a challenging task. This issue was addressed in Fosgate v. Corona, 66 N.J. 268 (1974), where the plaintiff alleged that the defendant doctor negligently failed to diagnose her tuberculosis for a period of years. In a landmark holding, the Supreme Court held that in a situation where malpractice aggravates a pre-existing disease or condition, the plaintiff is not required to establish what “expenses, pain, suffering, disability, or impairment” are attributable solely to that malpractice. Id. at 272-273. Rather, the burden of proof actually shifts to the defendant, and unless the defendant can demonstrate that the damages for which he or she is responsible for are “capable of some reasonable apportionment and what those damages are”, the defendant is responsible for all of the damages. Id.
The Court’s approach to medical malpractice cases involving pre-existing conditions/diseases was refined in Evers v. Dollinger, 95 N.J. 399 (1984). In Evers, the Supreme Court held that once a plaintiff proves that a delay in diagnosis increased the risk of an additional harm and that “such increased risk was a substantial factor in bringing about the condition from which the plaintiff now suffers,” the plaintiff has sustained damages for which a jury can award compensation. Id. at 406. This is known as the “increased risk/substantial factor” test and has become the criteria used for proximate cause in medical malpractice cases involving a pre-existing condition.
The relationship between pre-existing conditions and proximate cause in malpractice cases was again analyzed and clarified in Scafidi v. Seiler, 119 N.J. 93 (1990). In Scafidi, the plaintiffs alleged that the defendant’s failure to treat Ms. Scafidi’s early labor caused the premature birth and death of their child. More specifically, they asserted that the defendant failed to examine, diagnose, and administer proper medication to the mother, resulting in the premature birth and death of her infant daughter. Id. at 98. The Supreme Court explained that in cases in which the defendant's negligence combines with a preexistent condition to cause an injury, the standard charge on proximate cause could confuse or mislead a jury. Id. at 102. Accordingly, the Scafidi Court expanded the Evers holding, and ruled that the plaintiffs in such cases only need to prove that the defendant’s negligence increased the plaintiff's risk of harm from an established preexistent condition, and that the increased risk was a substantial factor in producing the ultimate injury. Id. at 104, citing Evers, supra, 95 N.J. at 417. The Court did not, however, define what a “substantial factor” meant, and left it up to the jury to determine. Id. at 109. The Scafidi Court also discussed the apportionment of damages between the pre-existing condition and the delay in treatment. In doing so, the Court revisited Fosgate, and held that if the injury might have occurred solely because of the preexistent condition (without negligence), the defendant’s liability should reflect the possibility of that result. Id. at 112-13. However, the Supreme Court emphasized that the defendant still has the burden of apportioning damages and if the defendant cannot do so, he or she is responsible for the full injury and all of the damages. Id. at 113-14.
In Gardner v. Pawliw, 150 N.J. 359 (1997), the Supreme Court extended the increased risk/substantial factor test to the failure to perform diagnostic testing. The Plaintiff in Gardner sued her obstetrician, alleging that he had negligently failed to perform certain diagnostic tests when she experienced a decrease in fetal movement. One week after she had reported this decrease in fetal movement, the plaintiff returned to her obstetrician’s office and it was discovered that her fetus had died. The plaintiff argued that the obstetrician’s failure to order these tests increased the risk of harm from a preexistent condition, which resulted in the ultimate demise of her fetus. At trial, the plaintiff’s expert conceded that he could not state within a reasonable degree of medical probability that the diagnostic tests would have disclosed the mother’s pre-existing condition since the tests had not been done. Id. at 369. However, he did testify that the defendant’s failure to do the tests increased the risk that the fetus’ condition would not be recognized. Id. This case went up to the Supreme Court, and the Court explained that when the standard of care mandates that a diagnostic test should be performed, but it is unknown whether performing the test would have helped to diagnose or treat a pre-existing condition, the plaintiff only needs to demonstrate to a reasonable degree of medical probability that the failure to perform the test increased the risk of harm from the pre-existing condition. The plaintiff need not prove that the test would have resulted in avoiding the harm. Id. at 387.
Despite the case holdings noted above, there still appears to be a great deal of confusion amongst jurors in understanding when and how the burden of proof shifts in cases concerning pre-existing conditions and diseases. The plaintiff's burden is to prove that the defendant’s negligence increased the risk of harm and was a substantial factor in producing the ultimate injury. Once the plaintiff satisfies these elements, the burden then shifts to the defense to prove what portion of the damages were due to the defendant's negligence, as opposed to what portion of damages were attributed to the pre-existing condition or disease. If the defendant fails to introduce evidence as to what portion of the plaintiff’s damages were attributable to the plaintiff’s pre-existing condition and which were due to the defendant’s negligence, the defendant is responsible for all of the damages. Further, while our Supreme Court has never defined the “substantial factor” test, the term “substantial” implies over fifty percent or more than likely. It is unlikely that the Court will revisit the definition again, so the very real prospect that juries use a “more likely than not” or “over fifty percent” understanding of the terms will, in all likelihood, persist.
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