The Anniversary of Scafidi v. Seiler

On this date in 1990, the Supreme Court decided Scafidi v. Seiler, 119 N.J. 93 (1990), a medical malpractice case. The key fact question there was, according to Justice Stein’s opinion for the Court, “whether the defendant’s failure properly to treat and arrest Jamie Scafidi’s early labor proximately caused the premature birth and death of her infant child.”

At trial, plaintiffs (the two parents) sought a jury charge on causation that incorporated the “increased risk” standard of Evers v. Dollinger, 95 N.J. 399 (1984). The trial judge declined to do that and also declined to instruct the jury “that it was defendant’s burden to prove that damages could be apportioned to reflect the likelihood that plaintiff Jamie Scafidi’s preexistent condition was independently responsible for the premature birth and death.” The jury returned a defense verdict that found defendant negligent but determined that that negligence was not the proximate cause of the child’s premature birth and death.

Plaintiffs appealed. The Appellate Division upheld the trial judge’s refusal to give the apportionment jury charge but reversed the ruling that declined to give the Evers “increased risk” charge. Defendant sought and obtained Supreme Court review.

In a unanimous opinion by Justice Stein (with Justice Handler filing a concurring opinion), the Supreme Court affirmed the Appellate Division’s ruling that the Evers charge should have been given and that it was improper to impose on defendant the burden of showing that damages could be apportioned. But the Court held that “any damages awarded to plaintiffs on retrial, assuming that defendant’s proofs include evidence that the infant’s premature birth and death might have occurred even if defendant’s treatment had been proper, should be apportioned to reflect the likelihood that the premature birth and death would have been avoided by proper treatment. Thus, plaintiffs’ damages will be limited to the value of the lost chance for recovery attributable to defendant’s negligence.”

That aspect of the Court’s opinion was somewhat unusual. Justice Stein observed that “defendant’s petition for certification [did] not raise the issue, [but] the question of allowable damages in Evers-type cases was addressed” by an amicus. Normally, the Court will not address an issue presented only by an amicus. Nonetheless, in this case, the Court “consider[ed] and decide[d] the issue because of its significance both on retrial and in similar litigation.”

Justice Stein noted that “[i]n a number of cases courts have adopted or acknowledged the soundness of the concept that a plaintiff’s recovery in Evers-type cases should ordinarily be limited to lost-chance damages,” citing cases from other jurisdictions. The Court adopted that view. “In our view, a rule that limits a plaintiff’s damages in Evers-type cases to the value of the lost chance of recovery is an essential complement to Evers‘ modification of the proof required to establish proximate causation…. To the extent that a plaintiff’s ultimate harm may have occurred solely by virtue of a preexistent condition, without regard to a tortfeasor’s intervening negligence, the defendant’s liability for damages should be adjusted to reflect the likelihood of that outcome. ”

Justice Stein also found that such a rule “serves an important societal interest in the context of medical-malpractice litigation. A rule of law that more precisely confines physicians’ liability for negligence to the value of the interest damaged should have a salutary effect on the cost and availability of medical care.” The rule also comported with the comparative negligence and joint tortfeasor contribution statutes, he said.

Because this was a “significant change in the law,” the Court declared that its effect would be prospective only, except for this case and another decided that same day. Scafidi continues to be cited to this very day.