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November, 2014 | New Jersey Medical Malpractice Blog Archive

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


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