Komlodi v. Picciano, WL 2050758 (N.J. 2014) – Part 2

By Michael Zerres

Komlodi Part 2
See Part 1

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.

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.” The panel further rejected plaintiff’s argument that the Court should not have instructed the jury on the doctrine of avoidable consequences. The Supreme Court decided the case on May 21, 2014 and addressed primarily six issues, the second of which is:

The Applicability of the Doctrine of Avoidable Consequences

The doctrine of avoidable consequences serves to mitigate damages and is appropriate when a plaintiff’s own negligent acts occur after a defendant’s tortuous act has been committed and causes the patient additional harm. Avoidable consequences serves to reduce a recovery because a plaintiff cannot recover for the additional injury caused by him/herself after a defendant has already committed malpractice. Thus, even where comparative negligence is barred, a medical malpractice defendant can still assert a patient’s self-neglect should limit his/her damages.

In this case, the Duragesic patch was ingested by the plaintiff after Dr. Picciano allegedly violated the standard of care by prescribing the patch. Courts must avoid the indiscriminate application of the doctrine of comparative negligence when the doctrine of avoidable consequences apply. Thus, the Trial Court properly ruled that the defense of comparative negligence did not apply and the Court’s decision to not charge comparative negligence was not appealed. It was also found that a charge of avoidable consequences was appropriate under the circumstances.

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