Proximate Cause in Dental Malpractice

Submitted by New Jersey Malpractice Attorney, Jeffrey Hark

29-2-4812 Demarco v. Katz, App. Div. (Fuentes, J.A.D.) (16 pp.)

In this case the appellate division reviews the trial court’s retain of a ‘hybrid’ jury charge addressing proximate cause.  The issue was whether a dentist’s negligence was the “substantial factor in bringing about the resulting injury.” The court found no discernible error with the approach employed by the trial judge to instruct the jury on the question of proximate cause and affirm, but even if there was error, it was harmless.  The court then revisited the seminal case of Scafidi v. Seiler, 119 N.J. 93 (1990), when the plaintiff’s injury can be traced to a single cause, the standard proximate cause instruction is appropriate. Id. at 101. “The language of the standard charge assumes that the defendant’s negligence began a chain of events leading to the plaintiff’s injury.” Id. at 102.

Dental Negligence and Preexisting Conditions

The court then went on to discuss those cases where the “the defendant’s negligence combines with a preexistent condition to cause an injury, the standard charge on proximate cause could confuse or mislead a jury.”  In these types of cases Scafidi required a two-pronged jury instruction for the latter types of cases: (1) whether, as a matter of reasonable medical probability, defendant’s negligence increased the risk of harm from the preexisting condition; and, if yes, (2) whether this negligence was a substantial factor contributing to the plaintiff’s injury. Id. at 108-09.

However, there were also circumstances such as Tindal v. Smith, 299 N.J. Super. 123 (App. Div. 1997), where the court ruled a Scafidi instruction is inappropriate when the preexisting condition cannot lead to the injury without the defendant’s negligence. Id. at 135. The plaintiff in Tindal had a preexisting condition, Raynaud’s syndrome.  Of concern to this court, regarding causation was, as in Komlodi, the principal and overriding  the trial court’s misapplication of the based on causation and not preexisting causation was Scafidi charge. This court then discussed the need for the jury to receive proper, fact-sensitive instructions on the law, especially instructions explaining the concepts superseding/intervening causation and avoidable consequences.   The court went on to state “Given the clarity of this holding to the tragic facts in Komlodi, we are satisfied it bears no direct application to the appeal we now decide. We are nevertheless compelled to acknowledge and address the following comments Justice Albin made concerning the two forms of causation known as “but for” and “substantial factor”:

Two Forms of Causation

These two forms of causation — “but for” and “substantial factor” — are mutually exclusive. A “but for” charge is appropriate when there is only one potential cause of the injury or harm. See Conklin v. Hannoch Weisman, P.C., 145 N.J. 395, 417 (1996) (“In the routine tort case, ‘the law requires proof that the result complained of probably would not have occurred “but for” the negligent conduct of the defendant.'” (citation omitted)). In contrast, the “substantial factor” test is given when there are concurrent causes potentially capable of producing the harm or injury. Id. at 419-20. Thus, “a tortfeasor will be held answerable if its ‘negligent conduct was a substantial factor in bringing about the injuries,’ even where there are ‘other intervening causes which were foreseeable or were normal incidents of the risk created.'” Brown v. United States Stove Co., 98 N.J. 155, 171 (1984) (quoting Rappaport v. Nichols, 31 N.J. 188, 203 (1959)). A substantial factor is one that is “not a remote, trivial or inconsequential cause.” Model Jury Charge (Civil) § 6.13.  [Komlodi, supra, 217 N.J. at 422-23.]

The Katz appellate panel then state: “We do not infer from this discussion an absolute injunction  against the approach adopted by the trial court here. Plaintiff’s expert opined that a coronectomy is a procedure used at times to treat impacted wisdom teeth “to avoid injury to the nerve.” Plaintiff’s counsel stressed to the jury that Dr. Katz deviated from the standard of care by opting to extract tooth #17 instead of opting for a coronectomy. The jury accepted plaintiff’s argument as to negligence.  On the question of proximate causation, the five key factors plaintiff’s counsel stressed in this appeal were also available to the jury to determine whether Dr. Katz’s deviation was a proximate cause of the nerve injury. In our view, the trial judge correctly included language in his instructions on proximate cause directing the jury to determine, in light of the five key factors as well as defense counsel’s expert testimony, whether Dr. Katz’s negligent conduct was a substantial factor in bringing about the resulting nerve injury. Using Model Civil Jury Charge 6.12 without any alterations, as plaintiff argues here, would have produced an unjust result because it would have left the jury without judicial guidance on how to consider this important evidence.

However additional issue to consider is that ‘risks of surgery’ are also not considered preexisting conditions warranting a Scafidi instruction. Holdsworth v. Galler, 345 N.J. Super. 294, 303 (App. Div. 2001). This medical malpractice causation review case outlined that, “to the extent plaintiff argues that the risk of inferior alveolar nerve injury was a preexisting condition, his request for a “Scafidi like” instruction was correctly denied by the trial judge. Although plaintiff emphasized in his reply brief that he only requested the trial court to charge the jury using Model Civil Jury Charge 6.12, not to give a Scafidi instruction, for purposes of this appeal, this is a distinction without a difference. Plaintiff argues that the “concurrent cause” is the existence of preexisting conditions, which was is squarely addressed in Scafidi, supra, 119 N.J. at 102.