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New Jersey Medical Malpractice Blog

Komlodi Part 6: “Substantial factor” vs. “but-for” Charge on Causation

By Attorney Michael B. Zerres on November 13, 2014

Further Analysis of Scalfidi Charge in Komlodi v. Picciano, WL 2050758 (N.J. 2014)
See Part 1, Part 2, Part 3, Part 4, Part 5

Here, the Court charged the jury on both the “substantial factor” and “but for” instructions on proximate cause. The “but-for” causation charge was given inadvertently by the Court and was done so without objection from either party.  A “but-for” charge is appropriate when there is only one potential cause of the harm or injury. 

In contrast, the “substantial factor” instruction is given when there are concurrent causes capable of producing the harm or injury.  A tortfeasor will be held answerable if its negligent conduct was a substantial factor in bringing about the injuries, even where there are other intervening causes which were foreseeable. Read the rest »

Posted in: Medical Malpractice


Komlodi Part 5: Foreseeability and Intervening/Superseding Causes

By Attorney Michael B. Zerres on November 6, 2014

Further Analysis of Scalfidi Charge in Komlodi v. Picciano, WL 2050758 (N.J. 2014)
See Part 1, Part 2, Part 3, Part 4

The Trial Court correctly elected to charge the jury on both intervening/superseding causation and general foreseeability. The intervening/superseding causation charge attempts to focus the jury’s attention on the different arguments of the parties. Thus, while a patient’s deliberate act is foreseeable, and not a superseding cause, that does not preclude the need to instruct the jury on intervening/superseding causes.

The concepts of foreseeability and intervening/superseding causation are related and juries need to be educated on both. Foreseeability is a constituent part of proximate cause and an act is foreseeable when a reasonably prudent, similarly situated person would anticipate a risk that his/her negligent conduct would cause injury or harm to another. Read the rest »

Posted in: Medical Malpractice


Komlodi Part 4: Further Analysis of the Scafidi Charge

By Attorney Michael B. Zerres on November 4, 2014

Part 4 of the Komlodi v. Picciano, WL 2050758 (N.J. 2014)
See Part 1, Part 2, Part 3

The Use of the Scafidi Charge

In Scafidi v. Seiler, 119 N.J. 93 (1990),  a two-part test was created for proving causation in cases where plaintiff’s injuries are, in part,  attributable to a pre-existing condition.  First, the jury must decide whether negligent treatment increased the risk of harm posed by the patient’s pre-existing condition.  If so, there are concurrent causes of harm and the traditional “but-for” causation charge would not apply. Then, the jury must determine whether the increased risk was a substantial factor in causing the ultimate result.  If these two elements are proven by a preponderance of the credible evidence, the burden shifts to the defendant to show what damages are attributable solely to the preexisting condition. Read the rest »

Posted in: Medical Malpractice


Komlodi v. Picciano, WL 2050758 (N.J. 2014)

By Attorney Michael B. Zerres on November 3, 2014

Komlodi Part 3

Plaintiff alleged Dr. Picciano breached the duty of care in prescribing a Duragesic patch to Michelle Komlodi, a known abuser of drugs and alcohol who orally ingested the patch, resulting in a severe brain injury. The Trial Court had to assess the issue of whether Dr. Picciano, the plaintiff, or, both were proximate causes of the injury. The Trial Court charged the jury on avoidable consequences, superseding/intervening causation, and pre-existing condition (Scafidi charge), but not on comparative negligence. The jury found that Dr. Picciano deviated from the standard of care and increased the risk of harm to the plaintiff. However, a no-cause verdict was entered on behalf of the defendant, as the jury found the increased risk of harm was not a substantial factor in producing the patient’s brain injury under Scafidi.

On appeal the Appellate Division reversed and remanded for a new trial stating the lower Court incorrectly charged the jury on the law. The Appellate division found clear error in giving a Scafidi charge. The panel also stated that the Trial Court erred in instructing the jury on both “but-for” causation and “substantial factor” causation in referring to the “preexisting condition/increased risk.” Read the rest »

Posted in: Medical Malpractice


Komlodi v. Picciano, WL 2050758 (N.J. 2014)

By Attorney Michael B. Zerres on October 29, 2014

Komlodi Part 2

The Plaintiff alleged Dr. Picciano breached the duty of care in prescribing a Duragesic patch to Michelle Komlodi, a known abuser of drugs and alcohol who orally ingested the patch, resulting in a severe brain injury. The Trial Court had to assess the issue of whether  Dr. Picciano, the plaintiff, or both were proximate causes of the injury.  The Trial Court charged the jury on avoidable consequences, superseding/intervening causation, and pre-existing condition (Scafidi charge),  but not on comparative negligence. The jury found that Dr. Picciano deviated from the standard of care and increased the risk of harm to the plaintiff.  However, a no-cause verdict was entered on behalf of the defendant, as the jury found the increased risk of harm was not a substantial factor in producing the patient’s brain injury under Scafidi. Read the rest »

Posted in: Medical Malpractice


Komlodi v. Picciano, WL 2050758 (N.J. 2014)

By Attorney Michael B. Zerres on October 28, 2014

Komlodi Part 1

Plaintiff alleged Dr. Picciano breached the duty of care in prescribing a Duragesic patch to Michelle Komlodi, a known abuser of drugs and alcohol who orally ingested the patch, resulting in a severe brain injury. The Trial Court had to assess the issue of whether Dr. Picciano, the plaintiff, or, both were proximate causes of the injury.

The Trial Court charged the jury on avoidable consequences, superseding/intervening causation, and pre-existing condition (Scafidi charge), but not on comparative negligence. The jury found that Dr. Picciano deviated from the standard of care and increased the risk of harm to the plaintiff. However, a no-cause verdict was entered on behalf of the defendant, as the jury found the increased risk of harm was not a substantial factor in producing the patient’s brain injury under Scafidi. Read the rest »

Posted in: Medical Malpractice


NJ Judges Required to Ask Jurors Open-Ended Questions

By Attorney Michael B. Zerres on October 24, 2014

Erga v. Chalmers- Docket No. A-2632-12T4 – unpublished – Jury Selection/Voir Dire – decided July 16, 2014

This matter arises out of an auto accident trial, wherein the plaintiff sought reversal of a no-cause verdict after the Trial Court failed to ask Question Six from a set of sample jury questions set forth by the Administrative Office of the Courts in Directive #4-07.

During jury selection the court informed counsel that it intended to ask Question Six in the reverse. Plaintiff’s counsel requested Question Six be read as it appeared in Directive #4-07, explaining that asking the question in the negative would not allow full and frank responses from potential jurors. Even though the defendant did not object to having Question Six read from Directive #4-07, the Court insisted on reading the question in reverse, claiming it would save the Court time during jury selection. Read the rest »

Posted in: Automobile Accident


I/M/O Suspension or Revocation of the License of Dara, A-1110-11T4, A-4861-T4

By Attorney Michael B. Zerres on March 12, 2014

In this administrative law action, Parvez Dara, M.D., appeals from the decision of the New Jersey Board of Medical Examiners revoking his medical license and ordering him to pay $30,000 in penalties. Dara also appeals the Board’s award of $372,029.28 in fees and costs to the State. The administrative penalties arose due to allegations that Dara had harmed his patients and employees by failing to implement proper infection control procedures. The Attorney General filed a Complaint with the Board against Dara, alleging that Dara neglected to maintain sanitary conditions or develop proper policies and procedures, improperly handled medication, and inadequately supervised staff, thereby resulting in a risk of harm, and actual harm, to his patients.

The second Count of the Complaint further alleged that Dara, despite having been on notice, repeated and deliberately violated Occupational Safety and Health Administration (OSHA) standards regarding toxic and hazardous substances, thus posing a danger to public health. Specifically, there were allegations that 29 of Dara’s patients had contracted Hepatitis B, stemming from his practice. When investigators from OCHD (Ocean County Health Department), DHSS, and the Board of Medical Examiners, inspected Dara’s office and interviewed his staff, they discovered that staff members often failed to change their gloves after performing invasive procedures, Dara failed to provide policies or procedures for the proper use and storage of medications and the office possessed neither a written infection control manual nor proper infection control policies and procedures. An expert testified that each of these breaches was significant, and, had been associated with outbreaks of diseases in the past. The expert opined to a reasonable degree of medical certainty that those patients infected with Hepatitis B suffered actual harm as a result of Dara’s improper practices. Read the rest »

Posted in: Medical Malpractice


Camacho-Gardner v. Rubenstein, HUD-L-6541-10

By Attorney Michael B. Zerres on March 11, 2014

This medical malpractice action arises from alleged negligent neonatal care of the infant decedent following her delivery via C-section. The defendant physicians moved for summary judgment on the basis that plaintiff’s neonatologist expert was not qualified to testify under N.J.S.A. 2A:53A-41(a)(1) (The Patients First Act) because he was retired before the alleged malpractice occurred. The plaintiffs argue that, although the expert is retired from active clinical practice, because he is still Board Certified in neonatology, he is qualified.

The court held that the expert failed to meet the statutory requirements because he was no longer practicing at a hospital at the time of the occurrence, and thus, he was also not credentialed by a hospital at the time of the occurrence. Furthermore, the court determined the expert could not testify because he did not devote a majority of his professional time to the clinical practice of neonatology in the year preceding the occurrence, and, although he was teaching at the time of the occurrence, he was only teaching physician assistants, which does not satisfy the requirement that the expert be instructing students in the same health care profession in which the defendant is licensed. Read the rest »

Posted in: Birth Injury


Estate of Edwards v. Clara Maas Medical Center, ESX-L-4808-11

By Attorney Michael B. Zerres on March 10, 2014

This medical malpractice action arises out of the alleged negligent treatment of plaintiff’s decedent at Clara Maas Continuing Care Center (CMCCC). Plaintiff’s decedent alleges that while a patient at CMCCC, he developed severe bed sores and pressure ulcers due to lack of proper care. The defendants advised plaintiffs’ counsel that the patient’s medical records could not be located. However, after a Ferreira conference, the court ordered defendants to subpoena the medical records from the owner of an off-site facility where they were supposedly stored. Defendants finally provided plaintiffs with a set of records; however, plaintiffs alleged that the records were incomplete. Plaintiffs’ counsel informed defendants’ counsel that the records were not complete, and, as such, insufficient for plaintiffs’ expert to provide an Affidavit of Merit.

Defendants then filed a motion asserting that plaintiffs’ failure to produce an Affidavit of Merit within the statutory time period, along with their failure to file a motion to extend the time period, warranted the dismissal of plaintiffs’ case with prejudice. Plaintiffs opposed defendants’ motion by stating that the defendants’ failure to provide a complete copy of plaintiff’s decedents’ medical records precluded the plaintiffs from timely securing the Affidavit of Merit, and thus, they were entitled to the protections of the Affidavit of Merit’s safety valve provision. The court found that case law provides that it should be presumed that the medical records that were not produced have had a substantial bearing on plaintiff’s preparation of the Affidavit, and, that the burden of establishing otherwise should be borne by the party that has not produced the records. Read the rest »

Posted in: Medical Malpractice


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