N.J. Model Civil Jury Charge 5.50E

5.50E PRE-EXISTING CONDITION — INCREASED RISK/LOSS OF

CHANCE — PROXIMATE CAUSE (Approved 10/2014; Revised

03/2021)

NOTE TO JUDGE

In a series of cases, including Fosgate v. Corona, 66 N.J. 268 (1974);

Evers v. Dollinger , 95 N.J. 399 (1984); Scafidi v. Seiler, 119 N.J. 93

(1990); Gardner v. Pawliw , 150 N.J. 359 (1997), and most recently

Reynolds v. Gonzales , 172 N.J. 266 (2002), the New Jersey Supreme

Court has established a modified standard of proximate cause for use in

certain medical negligence cases. The following charge is to be used

only in cases where it is alleged that the plaintiff has a pre -existing

condition which, by itself, had a risk of causing the plaintiff the harm

the plaintiff ultimately experienced in this case. Under the sequence of

this charge and accompanying interrogatory, the plaintiff has to prove

(1) a deviation from accepted standards of medical practice, (2) that the

deviation increased the risk of harm posed by the pre -existing

condition, and (3) that the increased risk was a substantial factor in

causing the plaintiff’s ultimate injury. The defendant is responsible for

all of plaintiff’s injuries unless the defendant can prove (4) what portion

of plaintiff’s injuries were the result of the pre-existing condition.

Furthermore, in Reynolds, supra, the Supreme Court held that failure to

specifically explain the charge in the context of the facts of the case was

reversible error. Therefore, to assist trial judges and practitioners this

Model Civil Jury Charge uses typical medical negligence theories as

illustrative examples.

In cases involving an allegation that the failure to perform a diagnostic

test increased the risk of harm from a pre -existing condition, the trial

court must also give tha t portion of the charge derived from Gardner,

supra, as indicated below.

Additionally, in Komlodi v. Picciano, 217 N.J. 387 (2014), the Supreme

Court addressed the misapplication of a Scafidi charge where the

defenses are based on avoidable consequences and/or

superseding/intervening causes and not a pre-existing condition.

In this case, the Plaintiff had a pre -existing condition which, by itself, had a

risk of causing the plaintiff the harm the plaintiff ultimately experienced in this case.

However, the plaintiff contends that the plaintiff lost the chance of a better outcome

because of the Defendant’s deviation from accepted standards of medical practice.

[Insert here a detailed factual description of t he case, such as, (1) the plaintiff

contends that she told the defendant that she felt a lump in her breast in January of

2000, that the defendant was negligent in not ordering a mammogram or other test

for cancer until January 2001, and that as a result of the delay the cancer spread to

her lungs, liver and brain, and is now likely to cause her death; or (2) the plaintiff

contends that her husband went to the defendant hospital emergency room after

suffering a heart attack. The plaintiff further asserts that the defendant negligently

misdiagnosed her husband's heart attack, and sent her husband home, where he

died.]

If you determine that the defendant deviated from accepted standards of

medical practice you must then consider whether the Plaintiff has proven that the

deviation increased the risk of harm posed by the Plaintiff’s pre-existing condition.

1

You must then consider whether the Plaintiff has proven that the increased risk of

harm was a substantial factor in producing the ultimate harm or injury. To be a

substantial factor, the defendant’s deviation must play a role that is both relevant and

1 See Reynolds v. Gonzales, supra at 282.

significant in bringing about the ultimate injury. A defendant’s deviation need not

be the only cause, or even a primary cause, of an injury for the deviation to be a

substantial factor in producing the ultimate harm or injury. In other words, you the

jury can find that a defendant’s deviation is a substantial factor even though it isn’t

the predominant cause of the injury. However, if the deviation was only remotely

or insignificantly related to the ultimate harm or injury, then the deviation does not

constitute a substantial factor.

2

If under all of the circumstances here [here insert specific circumstances such

as the delay in the diagnosis of the breast cancer or the heart attack] you find that

the plaintiff may have suffered lesser injuries if the de fendant did not deviate from

accepted standards of medical practice, then the defendant is liable for the plaintiff’s

increased injuries. On the other hand, if you find that the plaintiff would have

2 Reynolds, supra at 288. The determination of what constitutes a “substantial factor” was

analyzed in Velazquez v. Jiminez, 336 N.J. Super. 10 (App. Div. 2000), aff'd, 172 N.J. 240 (2002),

where the jury found that 5% of the ultimate injury resulted from a pre -existing condition, that a

settling defendant contributed to 92% of the ultimate injury and that the non- settling defendant

was 3% responsible. The jury awarded damages totaling $2,500,000.00. The trial judge then

ruled, sua sponte, that the non-settling defendant was not negligent as a matter of law. In reversing,

the Appellate Division held that the jury’s finding that a defendant was 3% negligent satisfies the

substantial factor test announced in Scafidi, supra. The Velazquez court cited Dubak v. Burdette

Tomlin Memorial Hospital, 233 N.J. Super. 441, 452 (App. Div.), certif. denied, 117 N.J. 48 (1989)

which held that a finding of 10% fault satisfied the substantial factor test. Velazquez v. Jiminez ,

supra at 31-32. If there was testimony regarding specific percentages, it may be appropriate for

the court to further tailor the charge at this point to explain to the jury that a specific percentage

increase in the risk of harm can be considered by the jury to be substantial, and the court is

permitted to use actual percentages testified to by the experts as examples of what is substantial,

but the court is not required to do so.

suffered the same injuries even if the defendant did not deviate from accepted

standards of medical practice, then the defendant is not liable to the plaintiff.3

[Add where the allegation is that the failure to perform a diagnostic test

increased the risk of harm:]

If you determine that the defendant deviated from accepted standards of

medical practice in not having a diagnostic test performed, in this case [here indicate

the test(s)], but it is unknown whether performing the test would have helped to

diagnose or treat a pre-existent condition, the plaintiff does not have to prove that

the test would have resulted in avoiding the harm. In such cases the plaintiff must

merely demonstrate that the failure to give the test increased the risk of harm from

the pre-existent condition. A plaintiff may demonstrate an increased risk of harm

even if such tests are helpful in a small proportion of cases.4

3 In Gonzalez v. Silver , et al ., 407 N.J. Super. 576, 588 (App. Div. 2009), the court noted:

“…where a physician defendant’s negligence combines with a patient -plaintiff’s preexistent

condition to cause harm, it is reversible error to instruct the jury on the “but for” proximate cause

standard either alone or in conjunction with the substantial factor test.”

4 See Gardner v. Pawliw, supra at 387. In Gardner v. Pawliw, supra, the Supreme Court applied

the increased risk/substantial factor test to the failure to perform diagnostic testing. In that case,

the plaintiff's high risk pregnancy was being managed by the defendant. The Gardner Court

observed that when the malpractice consists of a failure to perform a diagnos tic test, the “very

failure to perform the test may eliminate a source of proof necessary to enable a medical expert to

testify to a degree of reasonable medical probability concerning what might have occurred had the

test been performed.” Id. at 380. In such a case, as a matter of public policy, the plaintiffs were

entitled to have a jury determine causation. The Court explained:

When the prevailing standard of care indicates that a diagnostic test should be

performed and that it is a deviation not t o perform it, but it is unknown whether

performing the test would have helped to diagnose or treat a preexistent condition,

the first prong of Scafidi does not require that the plaintiff demonstrate a reasonable

medical probability that the test would have resulted in avoiding the harm. Rather,

[In all cases continue here:]

If you find that the plaintiff has proven that the defendant deviated from

accepted standards of medical practice and that the deviation increased the risk of

harm posed by the Plaintiff’s pre -existing condition and was a substantial factor in

producing the ultimate harm/injury, the plaintiff is not required to quantify or put a

percentage on the extent to which the defendant’s deviation added to all of the

the plaintiff must demonstrate to a reasonable degree of medical probability that

the failure to give the test increased the risk of harm from the preexistent condition.

A plaintiff may demonstrate an increased risk of harm even if such tests are helpful

in a small proportion of cases. We reach that conclusion to avoid the unacceptable

result that would accrue if trial courts in such circumstances invariably denied

plaintiffs the right to reach the jury, thereby pe rmitting defendants to benefit from

the negligent failure to test and the evidentiary uncertainties that the failure to test

created.

Id. at 387.

The Court then explained the plaintiff’s burden of proof in such cases:

Plaintiffs’ burden was not to show as a matter of reasonable medical probability

that the tests would have revealed the placenta and umbilical cord abnormalities.

Plaintiffs’ burden was to show that [the defendant’s] failure to perform the NST

and BPP tests increased the risk that the fetus would die in utero . . . [the plaintiff's

expert] answered affirmatively when asked whether he could say to a reasonable

degree of medical probability that because [the defendant] failed to perform either

an NST or a BPP test there had been an increase d risk that a condition that could

cause the fetus’s death would not be recognized. Accordingly, [the plaintiff's

expert’s] testimony was sufficient for plaintiffs to satisfy their requisite threshold

burden of proof that to a reasonable medical probability the failure to perform those

two tests increased the risk of harm from the preexistent condition. Plaintiffs

should have been permitted to submit for the jury’s determination the questions of

whether, based on the parties’ expert testimony, the failure to give the NST or BPP

tests had increased the risk that the fetus’s condition would not be detected, treated

or corrected and whether that increased risk had been a substantial factor in causing

her death.

Gardner v. Pawliw, supra at 388-389. See also, 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).

plaintiff's final injuries. In cases where the defendant’s deviation accelerated or

worsened the plaintiff’s pre-existing condition, the defendant is responsible for all

of the plaintiff’s injuries unless the defendant is able to reasonably apportion the

damages.5 If the injuries can be so apportioned, then the defendant is only

responsible for the amount of ultimate harm caused by the deviation.

For example, if the defendant claims that: [(1) the plaintiff would still have

suffered the spread of her cancer even if the diagnosis had been made in January

2001; or (2) that the plaintiff's husband still would have died of a heart attack even

if treated earlier], and if the defendant can prove that an apportionment can be

reasonably made, separating those injuries the plaintiff would have suffered anyway,

even with timely treatment, from those injuries the plaintiff suffered due to the delay

in treatment, then the defendant is only liable for that portion/percentage of the

injuries the defendant proves is related to the delay in treatment of the plaintiff’s

original condition. On the other hand, if you find that the defendant has not met the

defendant’s burden of proving that plaintiff’s injuries can be reasonably apportioned,

then the defendant is responsible for all of the plaintiff’s harm or injury.

5 If there is no evidence submitted as to apportionment of damage, then the defendant is

responsible for the full injury and all damages. See , Fosgate v. Corona, supra. See also, Lanzet

v. Greenberg, 126 N.J. 168 (1991), where the Supreme Court reiterated that the defendant has the

burden of separating the damages attributable to the pre -existing condition fr om the damages

attributable to the negligence. See also, 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 such cases the judge should eliminate those paragraphs from the charge relating to

apportionment as well as eliminate from the verdict sheet questions relating to apportionment.

If you find that defendant met the defendant ’s burden of provi ng by a

preponderance of the evidence that some portion of the ultimate harm to the plaintiff

was caused by the pre -existing condition, then you will answer an additional

question on the verdict sheet that I will go over with you at the end of the jury

charges. This additional question will require you to assign percentages for the pre-existing condition and the doctor’s deviation from accepted medical practice. You,

the jury, may decide that any percentage increase in the risk of harm is substantial.

On the other hand, if you find that the increased risk was not a sub stantial factor in

bringing about the harm, then you must stop your deliberations and return your

verdict for the defendant. When you are determining the amount of damages to be

awarded to the plaintiff, you should award damages for all of the plaintiff’s injuries.

Your award should not be reduced by the percentages. The adjustment in damages,

which may be required, will be performed by the court.

NOTE TO JUDGE

The trial court should give an ultimate outcome charge on the

apportionment question in conjunction with a Scafidi charge. Fischer

v. Canario, 143 N.J. 235, 251 (1996), citing Roman v. Mitchell, 82 N.J.

336, 345 (1980). Noting that the purpose of an ultimate outcome charge

is to inform the jury about the impact of its decision, the Fischer Court

explained that juries should understand the impact of their findings.

Therefore, the Fischer Court concluded that the trial court’s failure to

give the ultimate outcome charge, as refl ected in Model Civil Jury

Charge 7.31, was error.

CHARGE 5.50E – INTERROGATORIES

(Approved 04/2014)

JURY INTERROGATORIES

1) Has the Plaintiff proven by the preponderance of the evidence that Dr. _____ deviated from

accepted standard of medical practice?

Yes ____ If your answer is “Yes” proceed to question 2.

No ____ If your answer is “No” return your verdict for the defendant.

2) Has the Plaintiff proven that Dr. _____’s deviation from accepted standard of medical

practice increased the risk of harm posed by the plaintiff’s pre-existing condition?

Yes ____ If your answer is “Yes” proceed to question 3.

No ____ If your answer is “No” return your verdict for the defendant.

3) Was the increased risk a substantial factor in causing the Plaintiff’s ultimate injury?

6

Yes ____ If your answer is “Yes” proceed to question 4.

No ____ If your answer is “No” return your verdict for the defendant.

4) Has the Defendant met his burden of proving that some portion of the ultimate injury was

a result of the pre-existing condition?

Yes ____ If your answer is “Yes” proceed to question 5.

No ____ If your answer is “No” proceed to question 6.

5) State in percentages, what portion of the ultimate injury is a result from:

A. The pre-existing condition. ______ %

B. Dr. _____’s deviation from the accepted standard of medical practice ______ %

Total 100 %

The total must equal 100%.

6 See Flood v. Aluri-Vallabhaneni, 431 N.J. Super. 365 (App. Div. 2013).

6) What amount of money would fairly and reasonably compensate the plaintiff for plaintiff’s

injuries?7

Total Damages: $__________

7) What amount of money would fairly and reasonably compensate the plaintiff’s spouse [per

quod claimant] for plaintiff’s loss of services? $__________

7 The court may include specific line items for specific categories of damages, such as past/future

pain and suffering, medical bills, lost income damages, etc., as may be justified by the evidence.