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The New Jersey Supreme Court on June 11 asked its Committee on Model Civil Jury Charges to review jury instructions on the substantial factor test in increased-risk medical malpractice cases, saying the wording may be too vague for juries. In a 5-2 ruling in Reynolds v. Gonzalez, A-9-01, the court also ordered a third trial for a man who is claiming that his permanently damaged foot resulted from a misdiagnosis that could have been properly treated. Justice Gary Stein, writing for the majority, said the plaintiff, Frank Reynolds, may not have received fair trials in two previous trials because of the “abstractness” of jury instructions on the substantial factor test. Justices Peter Verniero and Jaynee LaVecchia agreed that the court’s jury charges committee should review the language in the model charges, but said there was no reason to grant Reynolds a new trial because two juries came back with the same results. In September 1992, Reynolds suffered serious injuries to his left leg in a dirt-bike accident and was taken to the emergency room at Meadowlands Hospital in Secaucus, N.J. The defendant, Dr. Mario Gonzalez, operated to repair a fracture, but did not diagnose or treat Reynolds for possible compartment syndrome, a condition that occurs when there is swelling in an enclosed compartment within the body. If untreated, the syndrome can be limb- and life-threatening. The condition became so bad that doctors at the Hospital for Special Surgery in New York had to fuse Reynolds’ foot at a 90-degree angle. Reynolds claims that he continues to suffer from excruciating pain, loss of sensation and a severely affected gait. The juries in the two trials found that Gonzalez deviated from accepted standards of medical care by failing to test for compartment syndrome and that the deviation increased the risk of ultimate harm. They also concluded, however, that the increased risk was not a substantial factor in causing Reynolds’ foot paralysis and related complications. Courts in New Jersey apply the substantial factor test in malpractice cases involving pre-existing conditions. To prevail, a plaintiff must first show that the negligent treatment increased the risk of harm posed by a pre-existing condition. Then, the plaintiff has to prove that the increased risk was a substantial factor in causing the ultimate condition. Reynolds twice failed on the second prong of the test. Stein, however, said the instructions in both trials may have been too vague for the jury to understand. “Based on the record before us, and noting the first trial judge’s concern about the possibility of juror confusion, we reasonably can infer that the jury’s verdict may have resulted from some confusion about plaintiff’s burden under the substantial factor causation test,” Stein wrote. “[T]he trial court on remand should explain to the jury that a defendant’s deviation need not be the only cause, nor a primary cause, for the deviation to be a substantial factor in producing the ultimate result,” he continued. That negligent conduct, though, must not be a remote or inconsequential contributing factor, he added. “It must play a role that is both relevant and significant in bringing about the ultimate injury. The relative weight of an increased risk that is found to constitute a substantial factor can be reflected by the jury in the apportionment of damages between that increased risk and the pre-existing condition.” Reynolds’ lawyer, Douglas Burgess, says he agrees with the court that the model jury charge should be clarified to make it easier for juries to understand the substantial factor test. He adds, however, that the committee should not try to craft a charge that is to be the standard for every malpractice case involving that test. “Substantial factor will mean different things in different cases,” says Burgess, a partner at Newark, N.J.’s Cary & Icaza. “Every trial court will have to be careful and not just spit out the model charge.” Gonzalez’s lawyer, Judith Wahrenberger, of Wahrenberger and O’Brien in Springfield, N.J., did not return a message seeking comment. E. Drew Britcher, who argued amicus on behalf of the Association of Trial Lawyers of America-New Jersey, says the ruling confirms what plaintiffs’ lawyers have been arguing for years. “The ruling means that plaintiffs do not have to prove the degree of substantiality, only that the negligence was a substantial factor in the injury,” says Britcher, a partner at Glen Rock, N.J.’s Britcher, Leone & Roth.

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