August 17, 2010 at 1:10P.M., 14 year-old Matthew Calbi walked into the emergency room of Pascack Valley Hospital complaining of a sudden onset of neck pain after being kicked in the face by his alcoholic mother. Matthew was pronounced dead in the early morning hours of August 18, 2003 at 12:50A.M. Why did this tragedy occur? Was the delay in diagnosing and treating Matthew's injuries a substantial factor in increasing the risk of his dying?
Chronology of events leading to Matthew’s death
Loss of chance of survival-increase risk of death
The Appellate Panel did a terrific job in explaining this doctrine.
Where the plaintiff suffered from a pre-existing condition at the time of the allegedly negligent care, proximate causation is governed by a two-part substantial factor analysis. The substantial factor analysis asks ‘whether the defendant’s deviation from standard medical practice increased [the] patient’s risk of harm or diminished [the] patient’s chance of survival and whether such increased risk was a substantial factor in producing the ultimate harm.’ Id. at 587-88 (quoting Verdicchio v. Ricca, 179 N.J. 1, 24 (2004)). In Verdicchio, the Supreme Court explained:
‘Conduct is a substantial factor if it would ‘lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense. Under the ‘substantial factor’ test, the defendant’s negligence need not be the sole or primary factor producing the injury; it need only be a substantial factor. Thus the test covers the situation where there may be several substantial factors contributing to the same result.’[Verdicchio, supra, 179 N.J. at 24-25 (quoting J.D. Lee & Barry A. Lindahl, Modern Tort Law: Liability & Litigation § 4.03, 4-4 (West Group 2002)).]‘
To be a substantial factor, the “defendant’s negligent conduct cannot be a remote or an inconsequential contributing factor. It must play a role that is both relevant and significant in bringing about the ultimate injury.” Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002). It is ultimately for the jury to decide “[w]hat is ‘sufficiently significant in relation to the eventual harm to satisfy the requirement of proximate cause[.]‘” Id. at 283 (quoting Scafidi v. Seiler, 119 N.J. 93, 109 (1990)).
Was the trial judge’s jury charge adequate on apportionment of damages?
In charging the jury, the judge explained that Matthew came to Pascack Valley Hospital with ‘a pre-existing condition, i.e., various injuries to his arteries and veins, which by themselves had a risk of causing the plaintiff the harm he ultimately experienced in this case.’
The judge properly instructed that plaintiff bore the burden of proving that Dr. Cartaxo was negligent, that the negligence increased the risk of harm posed by the pre-existing condition, and that the increased risk must have been a substantial factor in bringing about the ultimate harm or injury.
The judge then explained that ‘[i]n cases where the defendants’ negligence accelerated or worsened the plaintiff’s condition, the defendants are responsible for all the plaintiff’s injuries, unless the defendants are able to reasonably apportion damages.’ The judge thereafter clarified how the defendants may meet that burden:
If the defendants can prove that an apportionment can be reasonably made separating would have appropriate assessment, and treatment, [from] those injuries the plaintiff suffered due to the failure to perform appropriate and/or timely examination, assessment, and treatment, then the defendants are only liable for that portion or percentage of the injuries the those injuries the plaintiff suffered anyway, even with and/or timely examination, defendants prove are related to the plaintiff’s original condition.’
On the other hand, if you find that the defendants have not met the burden of proving that plaintiff’s injuries can be reasonably apportioned, then the defendants are responsible for all of the plaintiff’s harm or injury.’
Thus, the instructions specifically permitted the jury to apportion one-hundred percent of the damages to Dr. Cartaxo if it found that defendant failed to prove that Matthew’s injuries could be reasonably apportioned to his pre-existing injury.
The jury awarded $2.1M for Matthew’s pain and suffering, and $287,500 for the pecuniary loss. The appeals court affirmed these awards.
What a horrific tragedy. On a Sunday in August 2003, an abused, 14 year-old boy walks into a safe haven, the emergency room of Pascack Valley Hospital, seeking help for his critical injuries. Too much time elapses in properly diagnosing and delivering life-saving treatment. Matthew dies in a hospital in the early morning hours of August 18, 2003.
You may wish to check out the time line of events, and read the excellent, articulate, Per Curiam opinion authored by the appellate division.