New Jersey Supreme Court Discusses Jury Instructions In Medical Malpractice Cases

162017_132140396847214_292624_nOn May 20, 2014, the Supreme Court of New Jersey (“Supreme Court”) discussed at length the required instructions to be given to a medical malpractice jury where a physician allegedly breached the duty of care by failing to protect a patient with a history of alcohol and drug abuse from self-injury.

The Medical Malpractice Plaintiff’s Factual Allegations

The 31-year-old woman sought treatment for back pain at a New Jersey hospital’s outpatient and behavioral health clinic. She advised the health care providers that her back pain began after she stopped using heroin and that over-the-counter medications did not help with her pain. She also told the health care providers that she was self-medicating with alcohol and drugs (using Percocet and Duragesic patches that she obtained from a friend).

At the time the woman sought treatment for her back pain, she had pre-existing conditions that included depression, anxiety, drug addiction, and alcohol addiction. The woman reported told the health care providers that she had passive suicidal ideation, that she had cut her wrists two weeks earlier, and that she had experienced insomnia, shortness of breath, and weight gain.

The woman was prescribed Duragesic patches to treat her back pain. She subsequently cut open a Duragesic patch and took it orally, which caused her to have respiratory and cardiac distress, causing a lack of oxygen to the brain, which led to severe and permanent disabilities (including severe cognitive, behavioral, and psychological impairments).

The medical malpractice plaintiff, who is the guardian and mother of the woman, filed a medical malpractice lawsuit against the defendant doctor and the hospital, alleging that they were negligent in prescribing a Duragesic patch to treat the woman’s back pain in light of her pre-existing conditions.

What Is A Duragesic Patch?

The Supreme Court described the duragesic patch as follows: The Duragesic patch contains the powerful pain medication fentanyl, an opioid analgesic, in a gel form. The patch is attached to the skin and is designed to release seventy-five-micrograms of fentanyl per hour over a seventy-two-hour period. The Duragesic patch is 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 is the equivalent of eighty Percocets. One side effect of the Duragesic patch is suppression of the respiratory system.

The defendants contended that the defendant doctor did not deviate from the appropriate standard of care when she prescribed a Duragesic patch for the woman, but even if she did, the woman caused her anoxic brain injury by ingesting the Duragesic patch. The plaintiff and the defendants presented conflicting expert testimony concerning whether the defendant doctor deviated from the accepted standard of care (the 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 plaintiff argued that prescribing a Duragesic patch to a drug-addicted and alcohol-addicted patient with the ongoing history presented by the woman deviated from the applicable duty of care. The defendants argued that the defendant doctor prescribed the Duragesic 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 trial judge instructed the jury on the issues of preexisting condition, avoidable consequences, and superseding/intervening causation (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 – an act that is the immediate and sole cause of the injury or harm), but did not instruct the jury on comparative negligence. The jury found that the plaintiff had proven that the defendant doctor had deviated from accepted standards of family medical practice and that the deviation increased the risk of harm posed by the woman’s preexisting condition, but it also found that the plaintiff did not prove that the increased risk was a substantial factor in producing the woman’s injuries and therefore found that the defendant doctor was not at fault in causing the woman’s anoxic brain injury; judgment was entered in favor of the defendants.

The Supreme Court ordered a new trial because the trial judge had erroneously instructed the jury to consider whether, based on the patient’s preexisting condition, prescribing the Duragesic patch increased the risk of harm to the patient and whether the preexisting condition was a substantial factor in causing the ultimate injury, without identifying the preexisting condition or relating the facts to the law (the trial judge failed to explain the complex concepts of causation in relation to the proofs and legal theories advanced by the parties); furthermore, the case did not involve the ineluctable progression of a disease on its own but rather harm caused to the patient was from her own conduct, whether volitional or not, after the physician prescribed the Duragesic patch (the defense was based on superseding/intervening causation and avoidable consequences, not on preexisting condition).

The Supreme Court stated that when a patient is treated for a preexisting condition and a physician’s negligence worsens that condition, it may be difficult to identify and prove the precise injury caused by the physician. In the typical case, the plaintiff seeks treatment for a preexisting condition, and the physician, through negligence, either fails to diagnose or improperly treats the condition, causing it to worsen and sometimes causing the plaintiff to lose the opportunity to make a recovery. To address this scenario, a jury must decide whether any negligent treatment increased the risk of harm posed by a preexistent condition and, if so, whether the increased risk was a substantial factor in producing the ultimate result. If the plaintiff satisfies her burden of proving these two elements by a preponderance of the evidence, then the burden shifts to the defendant to show what damages should be attributable solely to the preexisting condition as opposed to the physician’s negligence. The amount of damages caused by the aggravation of the preexisting condition due to the physician’s negligence is the value of the lost chance of recovery.

The Supreme Court stated that one important distinction between the doctrine of preexisting condition and the doctrines of comparative negligence, superseding/intervening cause, and avoidable consequences is that preexisting condition does not involve fault on the part of the plaintiff – the physician must take the patient as presented to her and cannot blame the patient for the preexisting condition for which the patient has sought treatment.

In the present case, the Supreme Court stated that the jury instructions provided by the trial judge were used to allocate fault, not just damages, and served as a substitute for the comparative-fault charge – without the fifty-one percent fault bar, and the instruction on preexisting condition became blurred with the instructions on avoidable consequences and superseding/intervening causation.

The Supreme Court stated that at the new trial, the jury instructions must explain the parties’ legal theories and the proofs in relation to the governing law. In addition, the substantial-factor test will be the test for deciding proximate cause.


If you or a loved one may have been injured due to medical negligence, you should promptly seek the advice of a local medical malpractice attorney in your U.S. state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Click here to visit our website or call us toll-free at 800-295-3959 to be connected with medical negligence lawyers in your state who may assist you.

Turn to us when you don’t know where to turn.

You can follow us on FacebookTwitterGoogle+, and LinkedIn as well!

This entry was posted on Tuesday, May 27th, 2014 at 9:58 am. Both comments and pings are currently closed.


Easy Free Consultation

Fill out the form below for a free consultation or contact us directly at 800.295.3959.
  • Please enter the correct answer to this math problem.
  • This field is for validation purposes and should be left unchanged.

    Easy Free Consultation

    Fill out the form below for a free consultation or contact us directly at 800.295.3959