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 third of which is:
The Doctrine of Comparative Negligence
New Jersey’s comparative negligence statute permits a plaintiff to recover so long as the his/her negligence was not greater than the negligence of the person against whom recovery is sought. Thus, if the plaintiff’s negligence is 51 percent and defendant’s 49 percent, there can be no recovery.
Comparative negligence is appropriate when plaintiff’s carelessness occurs before a defendant’s wrong has been committed or concurrently with it. When a case involve a foreseeable self-injurious conduct, application of comparative negligence may dilute the duty of care.
Here, the trial court was correct in giving an avoidable consequences jury charge without a comparative negligence charge because the patient ingested the Duragesic patch after Dr. Picciano allegedly committed malpractice by prescribing the patch. Therefore, the issue of plaintiff’s conduct prior to or at the time of the prescription of the patch was properly excluded from the jury’s consideration.
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