ANDERSON v. PICCIOTTI
Case Date: 05/23/1996
Docket No: SYLLABUS
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(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
BARBARA ANDERSON V. DR. JOSEPH PICCIOTTI, ET AL. (A-72-95)
Argued January 17, 1996 -- Decided May 23, 1996
COLEMAN, J., writing for a unanimous Court.
In September of 1987, Barbara Anderson, an insulin-dependent diabetic, was referred by her
orthopedist to Dr. Urbas, a podiatrist, for toenail care. While clipping her toenails, Dr. Urbas cut
Anderson's right big toe, causing some bleeding. Over the following week, Anderson's toe became red and
swollen. Unable to schedule another appointment with Dr. Urbas, Anderson visited her internist, Dr.
Lurakis, who diagnosed cellulitis of the toe and prescribed an oral antibiotic and warm soaks for the toe.
On October 7, 1987, Dr. Lurakis admitted Anderson to Kessler Memorial Hospital for an unrelated
illness. While in the hospital, Dr. Lurakis again examined Anderson's toe, which continued to be red and
swollen. Dr. Picciotti, a podiatrist, was consulted. On October 8, 1987, Dr. Picciotti removed the toe nail
and took a culture, which revealed the presence of a bacteria commonly found in foot infections and a
common cause of osteomyelitis, an infection of the bone. Because he was concerned that Anderson may
have osteomyelitis, Dr. Picciotti ordered a radiologic bone scan. Based on the radiologist's report that the
bone scan indicated inflammation consistent with osteomyelitis, Dr. Picciotti, on October 14, 1987, advised
Anderson that she had osteomyelitis of the right big toe. By that time, Anderson had been taking the oral
antibiotics prescribed by Dr. Lurakis for four weeks. A second bone scan taken on October 20, 1987,
revealed a slightly less certain, but nonetheless likely, indication of bone infection. On October 23, 1987, Dr.
Picciotti amputated Anderson's right big toe. Dr. Picciotti had not obtained a bone biopsy before the
amputation.
Anderson's medical malpractice action against Dr. Picciotti was tried on three theories of liability:
1) Dr. Picciotti deviated from accepted standards of care when he amputated Anderson's great toe without
first obtaining a bone biopsy to make a definitive diagnosis of osteomyelitis; 2) Dr. Picciotti deviated from
the proper standard of care because he failed to administer intravenous (IV) treatment for a non-osteomyelitic inflammatory process before amputating the toe; and 3) Dr. Picciotti performed the amputation
without obtaining Anderson's informed consent. Dr. Picciotti defended, claiming that Anderson had
osteomyelitis and that he did not deviate from the proper standard of care.
During a jury charge conference, defense counsel for Dr. Picciotti requested that the jury be charged
in accordance with the enhanced risk standard of causation defined in Scafidi v. Seiler (Scafidi). In support
of that charge, counsel argued that osteomyelitis was properly diagnosed pre- and post-operatively; that
amputation was a proper treatment option for osteomyelitis; that because Anderson had osteomyelitis, IV
treatment would not have guaranteed a cure; and that there was a risk that the toe would have been
amputated anyway. The trial court declined to give a Scafidi charge, concluding that this was not a Scafidi
increased risk type case. Accordingly, the jury was given the standard "but for" proximate cause instruction.
At the conclusion of trial, the jury found that Dr. Picciotti deviated from accepted standards of
medical practice by performing the amputation on Anderson's great right toe; that the deviation proximately
caused her injury; and that amputation was performed with Anderson's informed consent. Dr. Picciotti appealed to the Appellate Division, arguing that because it was possible that Anderson would have had an amputation anyway, it was improper not to charge the jury on increased risk or last chance of recovery pursuant to Scafidi. The Appellate Division reversed, finding that the evidence was insufficient to support the verdict in terms of causation. The panel reasoned that if Anderson had osteomyelitis, regardless of whether a bone biopsy was performed, amputation was conceded by all experts to be an accepted treatment option. Thus, amputation would have been unnecessary only if Anderson did not have osteomyelitis of the right big toe. Nonetheless, the Appellate Division did not dismiss Anderson's
complaint. The court found that the evidence was sufficient for the jury to have concluded that Anderson
did not have osteomyelitis and, that IV treatment would probably have cured the inflammation in her toe.
The court also found that even if there was osteomyelitis that could not have been cured by IV treatment,
such treatment would have offered a significant chance of cure. Viewed in that context, the court found
Scafidi applicable.
The Supreme Court granted certification.
HELD: When a defendant requests a Scafidi-type causation instruction in a case in which an alleged pre-existing condition and the effect of the defendant's tortious conduct both harmed the plaintiff within
a relatively short period of time, the defendant has the burden of proving the extent to which the
pre-existing condition reduced the value of the plaintiff's resultant harm. A Scafidi charge was not
warranted here.
1. Under Scafidi, a careful analysis of the evidence is required to determine whether the evidence is
sufficient to permit a jury to decide, as a matter of reasonable medical probability, that both prongs of a two-part test are satisfied. First, the evidence must permit a jury to find that defendant was negligent and that
defendant's negligence increased plaintiff's risk of harm from an established pre-existing condition. If that
prong is satisfied, then there are concurrent causes of the harm to the plaintiff. In that instance, the "but for"
causation standard may not be charged to a jury. The second prong of the test requires a jury to apply the
"substantial factor" standard of causation that directs a jury to determine whether the deviation in the context
of the pre-existing condition was sufficiently significant in relation to the eventual harm to satisfy the
requirement of proximate cause. In a Scafidi-type case, as with comparative negligence cases, the wrongdoer
should be charged only with the value of the interest he or she has destroyed. (pp. 10-14)
2. There is neither an allegation nor any evidence that Dr. Picciotti's alleged negligence combined with a
pre-existing condition to cause Anderson's harm. Thus, the Appellate Division properly determined that the
evidence was insufficient to require a Scafidi charge or to permit apportionment under Fosgate. (pp. 14-16)
3. When it does not clearly appear that a Scafidi charge is required and a plaintiff resists such a charge, then
a defendant has the burden of persuading the trial court that a Scafidi charge is appropriate. If a defendant
seeks to reduce his liability by asserting that part of the harm is not attributable to his or her tortious
conduct, the burden of proving both that the plaintiff's injury is capable of apportionment and what that
apportionment should be should rest on the defendant; the defendant must establish the existence and
identity of a pre-existing condition or disease. The burden of proof required to satisfy a Scafidi causation
charge requires evidence that demonstrates, within a reasonable degree of medical probability, that the
defendant's delay in making a proper diagnosis and rendering proper treatment increased the risk of
worsening the condition or disease, and that the delay was a substantial factor in producing the plaintiff's
current condition. Here, Dr. Picciotti did not adequately demonstrate that he was entitled to either a Scafidi
or a Fosgate charge. (pp. 16-21)
4. In overturning the jury verdict, the Appellate Division read too narrowly Anderson's contention that Dr.
Picciotti should have ordered a bone biopsy, interpreting the failure to obtain a pre-operative biopsy as
negligence based on an act of omission. Anderson never contended that the failure to obtain a biopsy was a
proximate cause of the amputation. Rather, she has consistently maintained that it was the absence of
osteomyelitis that made the amputation unnecessary, not simply the failure to obtain the bone biopsy.
Viewed in that context, Anderson proffered sufficient evidence from which the jury could have concluded
that osteomyelitis did not exist, notwithstanding substantial evidence to the contrary. Finally, the record fails
to disclose sufficient evidence to support the Appellate Division's conclusion that failure to administer IV
therapy constituted negligence; Dr. Picciotti and the experts stated that IV therapy would have made no
difference here. (pp. 21-23)
Judgment of the Appellate Division is REVERSED and the jury verdict REINSTATED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
STEIN join in JUSTICE COLEMAN's opinion.
SUPREME COURT OF NEW JERSEY
BARBARA ANDERSON,
Plaintiff-Appellant,
v.
DR. JOSEPH PICCIOTTI,
Defendant-Respondent,
and
ASSOCIATED PODIATRISTS, j/s/a
Defendant.
Argued January 17, 1996 -- Decided May 23, 1996
On certification to the Superior Court,
Appellate Division.
Alan M. Lands argued the cause for appellant.
Robert E. Paarz argued the cause for
respondent (Paarz, Master & Koernig
attorneys; Mary Ann C. O'Brien, on the
brief).
The opinion of the Court was delivered by I Plaintiff, Barbara Anderson, has been an insulin-dependent diabetic since 1981 and suffers from heart problems, rheumatoid arthritis, which is in remission, and osteoarthritis, which causes pain in her back, neck, knees, feet, and hands. On September 10, 1987, plaintiff consulted with Dr. Marcelli, an orthopedist, for foot pain. During the examination the doctor observed that plaintiff's toenails were curved inward. He referred her to Dr. Urbas, a podiatrist, for nail care. While clipping her toenails, Dr. Urbas cut plaintiff's big toe, causing some bleeding. Over the following week, the toe remained red and swollen, and plaintiff, unable to obtain another appointment with Dr. Urbas, visited Dr. Lurakis, an internist who had cared for
her since early 1986. Dr. Lurakis diagnosed cellulitis of the
toe and prescribed an oral antibiotic and warm soaks for the toe.
day. She did so, and Dr. Picciotti observed that the toe was red
and swollen, and continued to believe that the proper diagnosis
was osteomyelitis. Dr. Picciotti ordered a second bone scan. A
report, dated October 20, interpreted that scan as showing a
slightly less certain, but nonetheless likely, indication of bone
infection.
[F]rom what I saw in the record: the
improving toe, no deep tracks, no x-ray
changes after six weeks of there being soft
tissue infection . . . [there] was no
clinical finding consistent with
osteomyelitis. So that it appears that the
. . . second positive bone scan was an
osteo[myelitis] or not. And if that's the
case, I feel that's the deviation of standard
of care just using a bone scan in the absence
of other impressive clinical signs and
symptoms.
generally improbable. Dr. Mandracchia was unable to determine
whether Dr. Picciotti's diagnosis that plaintiff suffered from
osteomyelitis was correct. Thus neither plaintiff's nor
defendant's expert could state conclusively whether plaintiff had
osteomyelitis.
The case was tried on three theories of liability. First,
plaintiff alleged that Dr. Picciotti deviated from the accepted
standard of care when he amputated her great toe without first
obtaining a bone biopsy to make a definitive diagnosis of
osteomyelitis. Thus, plaintiff contended that although she had
an inflammatory process in her great toe, a bone biopsy would
have prevented defendant from misdiagnosing the condition as
osteomyelitis. Second, plaintiff alleged that defendant deviated
from the proper standard of care because he failed to administer
IV treatment for a non-osteomyelitic inflammatory process before
amputating the toe. Third, plaintiff alleged that defendant
performed the amputation without obtaining plaintiff's informed
consent. The defense to all three theories was that plaintiff
had osteomyelitis and defendant did not deviate from the proper
standard of care.
option for osteomyelitis. He asserted that because plaintiff had
osteomyelitis, IV treatment would not have guaranteed a cure;
therefore, there was a risk that the toe would have been
amputated "in any event." In denying the request for a Scafidi
charge, the trial court reasoned:
Accordingly, the jury was given the standard "but for" proximate cause instruction. Polyard v. Terry, 160 N.J. Super. 497, 511 (App. Div. 1978), aff'd, 79 N.J. 547 (1979). A special verdict sheet was submitted to the jury that combined the first two theories of liability in which the jury was asked whether "Dr. Joseph Picciotti [deviated] from accepted standards of medical practice by performing an amputation on plaintiff's great right toe?" The jury answered, "yes." The jury also found that the deviation proximately caused plaintiff's injury, presumably, amputation of the toe. The jury found, however, that the
amputation was performed with plaintiff's informed consent.
Defendant appealed.
In her brief filed with the Appellate Division, plaintiff
argued that apart from her lack of informed consent theory of
liability, defendant misdiagnosed an inflammatory process in her
great toe as osteomyelitis by neglecting to obtain a bone biopsy
before amputating the toe. Plaintiff conceded that if
osteomyelitis was the proper diagnosis, she could not prevail
under either of the first two theories advanced at trial because
both plaintiff's and defendant's experts agreed that amputation
was a proper treatment option for osteomyelitis.
delay in diagnosing osteomyelitis [with a bone biopsy] and
treating same caused the infection to spread" or otherwise
worsen. Consequently, plaintiff argued, a Scafidi charge was
unwarranted because there was neither an allegation nor evidence
that defendant's alleged deviations combined with the alleged
osteomyelitis to cause a worsening of plaintiff's condition.
The court summarized its reasons for applying Scafidi by
stating:
. . . the evidence was sufficient to permit
the jury to find that Dr. Picciotti's failure
to administer intravenous antibiotics was
actionable malpractice, whether or not Ms.
Anderson had osteomyelitis. If she did not
have osteomyelitis, the omission was
malpractice by the conventional definition of
proximate cause because, on that premise,
antibiotics would probably have cured the
infection and have saved her toe. If she did
have osteomyelitis, then evidence that Dr.
Picciotti's failure to administer intravenous
antibiotic therapy caused her to lose a
significant chance of achieving a cure
without amputation . . . . Lanzet v.
Greenberg,
126 N.J. 168, 188 (1991); Scafidi,
supra, 119 N.J. at 101; Evers v. Dollinger,
95 N.J. 399, 417 (1984); Roses v. Feldman,
257 N.J. Super. 214, 218 (App. Div. 1992);
Battenfeld v. Gregory,
247 N.J. Super. 538,
546 (App. Div. 1991).
Plaintiff contends that this case does not warrant a Scafidi
charge because defendant's negligence did not combine with a
preexisting condition to create the ultimate harm. Rather,
defendant's negligence was the sole cause of the ultimate harm.
Plaintiff characterizes the ultimate harm as the amputation
itself. Plaintiff points out that the trial focused on the
misdiagnosis of osteomyelitis; no evidence admitted showed that
defendant's negligence combined with skin or bone infection to
cause the condition to worsen.
Plaintiff argues that a Scafidi charge is appropriate only
when treatment or a lack of it increases the risk of harm.
Accordingly, the harm must flow from a combination of the
preexisting condition and the defendant's negligence, not solely
from a defendant's negligence. Here, plaintiff asserts that the
amputation was caused solely by defendant's misdiagnosis of
osteomyelitis and not from a combination of a preexisting
condition and defendant's negligence.
Determining whether a Scafidi-type charge is required focuses on the appropriateness of the standard "but for" proximate cause jury instruction. In Evers v. Dollinger, 95 N.J. 399 (1984), this Court addressed the issue of proximate causation in the context of harm resulting from both a plaintiff's preexistent condition and a defendant's negligent discharge of a duty related to that preexisting condition. Id. at 412-17. In that case, the defendant failed to properly diagnose a lump in the plaintiff's right breast. Id. at 402-03. Seven months later a second physician determined the lump to be cancerous, requiring a radical mastectomy. Id. at 403. The plaintiff's expert testified that the lump increased in size during that seven-month period. Id. at 404-05. The expert also stated that plaintiff's type of cancer had a 25" chance of recurrence after surgery and that the seven-month delay increased that risk. Ibid. The
cancer metastasized to the lungs before the appeal was concluded.
Id. at 403-04.
[P]laintiff should be permitted to
demonstrate, within a reasonable degree of
medical probability, that the seven months
delay resulting from defendant's failure to
have made an accurate diagnosis and to have
rendered proper treatment increased the risk
of recurrence or of distant spread of
plaintiff's cancer, and that such increased
risk was a substantial factor in producing
the condition from which plaintiff currently
suffers.
[Id. at 417.]
In Scafidi, supra, 119 N.J. at 108, the Court adhered to the
holding in Evers and clarified its meaning. The rule of law was
summarized in the following manner: Evidence demonstrating with a reasonable degree of medical probability that negligent treatment increased the risk of harm posed by a preexistent condition raises a jury question whether the increased risk was a substantial factor in producing the ultimate result. Evers, supra, 95 N.J. at 417. The rationale underlying the use of a two-pronged jury instruction bears elaboration. Because this modified standard of proximate causation is limited to that class of cases in which a defendant's negligence combines with a preexistent condition to cause harm -- as distinguished from cases in which the deviation alone is the cause of harm -- the jury is first asked to verify, as a matter of reasonable medical probability, that the deviation is within the class, i.e., that it increased the risk of harm from the preexistent condition. Accord Hamil v. Bashline, 392 A.2d 1280, 1286-88 (Pa. 1978);
Daniels v. Hadley Mem. Hosp.,
566 F.2d 749,
757-58 (D.C. Cir. 1977); Roberson v.
Counselman,
686 P.2d 149, 159 (Kan. 1984);
Restatement (Second) of Torts § 323(a).
Assuming that the jury determines that the
deviation increased the risk of harm from the
preexistent condition, we use the
"substantial factor" test of causation
because of the inapplicability of "but for"
causation to cases where the harm is produced
by concurrent causes. See W. Page Keeton et
al., Prosser and Keeton on the Law of Torts,
§ 41, at 266-68 (5th ed. 1984); Wex S.
Malone, Ruminations on Cause-In-Fact,
9 Stan.
L. Rev. 60, 88-90 (1956). The "substantial
factor" standard requires the jury to
determine whether the deviation, in the
context of the preexistent condition, was
sufficiently significant in relation to the
eventual harm to satisfy the requirement of
proximate cause. Accord Brown v. United
States Stove Co.,
98 N.J. 155, 172 (1984);
Hamil, supra, 392 A.
2d at 1288-89.
[Id. at 108-09.]
Thus, under Scafidi, a careful analysis of the evidence is required to determine whether the evidence is sufficient to permit a jury to decide, as a matter of reasonable medical probability, that both prongs of a two-part test are satisfied. First, the evidence must permit a jury to find that defendant was negligent and that defendant's negligence increased plaintiff's risk of harm from an established preexistent condition. If that prong is satisfied, then there are concurrent causes of the harm to the plaintiff. When concurrent causes produce the harm, the "but for causation" standard may not be charged to a jury. Id. at 109. Therefore the second prong of the test requires a jury to apply the "substantial factor" standard of causation. Ibid. The "substantial factor" standard directs a jury to determine
whether the deviation in the context of the preexistent condition
"was sufficiently significant in relation to the eventual harm to
satisfy the requirement of proximate cause." Ibid.
contends that amputation was an inappropriate treatment option.
If the diagnosis was accurate, plaintiff agrees with defendant
that the amputation was proper. The case became complicated only
when defendant, as the trial court observed, tried "to force a
square peg into a round hole by trying to make this case fit into
the increased risk . . . line of cases."
causation charge that was given is more stringent than the
Scafidi "substantial factor" charge. Olah v. Slobodian,
119 N.J. 119, 129 (1990). Second, plaintiff did not and, indeed, could
not prevent defendant from establishing that plaintiff's damages
were induced by concurrent causes, one of which was a preexistent
condition unrelated to defendant's negligence. Restatement
(Second) of Torts § 433A(1). If concurrent causes could be
established, defendant would have been entitled to the benefit of
Scafidi, provided that he could also "demonstrate that the
damages for which he is responsible are capable of some
reasonable apportionment and what those damages are." Fosgate v.
Corona,
66 N.J. 268, 273 (1974); Scafidi, supra, 119 N.J. at 112-13.
500 (1986) (Clifford, J., concurring); accord Lanzet, supra, 126
N.J. at 193 (Pollock, J., dissenting).
Next we must decide who has the burden of proof when a
Scafidi causation charge is requested. In the Scafidi-type case,
"the question is whether [a] plaintiff's damage claim should be
limited to the value of the lost chance for recovery." Scafidi,
supra, 119 N.J. at 111. Such damages can be characterized as
increased risk or reduced chance damages. Id. at 116-17
(Handler, J., concurring). Because the intent of a Scafidi-type
charge is to "more precisely confine[] physicians' liability for
negligence to the value of the interest damaged," either
plaintiff or defendant under varying circumstances may request
such a charge. Id. at 113.
[N.J.R.E. 101(b)(1).]
Conceptually, this means the party requesting the Scafidi charge
has the burden of persuading the trial court and the jury based
on the proofs presented that the evidence is sufficient to
sustain such a charge.
Ordinarily, plaintiffs in medical malpractice cases have the
burden of proving negligence and proximate cause with respect to
both negligence and damages. Caldwell v. Haynes,
136 N.J. 422,
436 (1994); Buckelew v. Grossbard,
87 N.J. 512, 525 (1981);
Germann v. Matriss,
55 N.J. 193, 208 (1970). In a few
exceptional cases, however, the burden of proof on some issues
may shift to the defendant. Anderson v. Somberg,
67 N.J. 291,
300-302, cert. denied,
423 U.S. 929,
96 S. Ct. 279,
46 L. Ed.2d 258 (1975). In some other cases, the traditional "but for"
proximate cause standard is replaced with the more flexible
"increased risk substantial factor" charge articulated first in
Evers, supra, 95 N.J. at 417, and later in Scafidi, supra, 119
N.J. at 108.
302, 310 (1985). In Scafidi, it was the plaintiff who sought a
"substantial factor" charge. Scafidi v. Seiler,
225 N.J. Super. 576, 582 (App. Div. 1988), aff'd,
119 N.J. 93 (1990).
Consequently, a plaintiff relying on the Scafidi causation
standard generally has the burden of proving that defendant's
negligence caused an increased risk of harm to plaintiff and that
the increased risk was a substantial factor in causing the
ultimate harm. Notwithstanding the fact that the Scafidi
standard is less stringent than the "all or nothing but for"
standard, it does not alter a plaintiff's burden of proving the
case by a fair preponderance of the evidence. Battenfeld, supra,
247 N.J. Super. at 548.
It is significant that only sixteen days passed between
plaintiff's initial examination by defendant and the amputation.
In a case such as this one, in which
[King, supra, at 1393.]
Generally, no dispute exists with regard to the existence
and identity of a preexistent disease or condition in a Scafidi-type case. Should a dispute arise, as here, regarding those
issues, the defendant must bear the burden of establishing the
existence and identity of such a condition or disease. A
preexistent condition or disease is one that has become
sufficiently associated with a plaintiff prior to the defendant's
negligent conduct so that it becomes a factor that affects the
value of the plaintiff's interest destroyed by the defendant.
Id. at 1357.
medical probability, demonstrates that the defendant's delay in
making a proper diagnosis and rendering proper treatment
increased the risk of worsening the condition or disease, and
that the delay was a substantial factor in producing the
plaintiff's current condition. That burden must be sustained by
a fair preponderance of the evidence. Although the Court has
regarded the increase in risk resulting from the negligent act to
be "unquantifiable," Evers, supra, 95 N.J. at 406; see
Battenfeld, supra, 247 N.J. Super. at 546, 548, a defendant
nonetheless has the "burden of segregating recoverable damages
from those solely incident to the preexisting disease." Fosgate,
supra, 66 N.J. at 273.
Plaintiff further contends that the Appellate Division should not have reversed the jury's verdict after it found that plaintiff's expert provided an ample basis for the jury to find a deviation from the accepted standard of podiatric practice, and
after it concluded that defendant failed to sustain the burden of
proving that he was entitled to a Scafidi charge.
more than one hundred toe amputations that did not involve
gangrene, this was the first amputation he performed without
first obtaining a bone biopsy. The pathologist's post-operative
examination revealed "chronic inflammation" that was not
specified as osteomyelitis. Indeed, plaintiff's expert testified
that "chronic inflammation" was consistent with plaintiff's
arthritis rather than osteomyelitis.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI and STEIN join in JUSTICE COLEMAN's opinion.
NO. A-72 SEPTEMBER TERM 1995
BARBARA ANDERSON,
Plaintiff-Appellant,
v.
DR. JOSEPH PICCIOTTI,
Defendant-Respondent,
and
ASSOCIATED PODIATRISTS, j/s/a
Defendant.
DECIDED May 23, 1996
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