Komlodi Part 4: Further Analysis of the Scafidi Charge

By Michael Zerres

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.

Under a Scafidi analysis, a plaintiff’s damages are limited to the increased risk of harm attributable to a defendant’s negligent conduct. In other words, the amount of harm caused by the aggravation of a preexisting condition is the value of the lost chance of recovery. The injured person’s conduct is not to be considered.

Thus, in this case, a Scafidi charge was inappropriate because it did not involve a patient suffering from the progression of a preexisting condition.

Rather, here the patient allegedly failed to properly use the Duragesic patch after Dr. Picciano improperly prescribe the patch. Therefore, the Court improperly used a Scafidi charge to allocate fault, not just damages, acting as an improper substitute for the comparative fault charge.

In sum, the Scafidi charge became blurred with the charges on avoidable consequences and intervening/superseding causation, which had the capacity to confuse or mislead the jury.

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