Flood v. Aluri-Vallabhaneni, A-4248-11T2; Appellate Divison; opinion by Messano, P.J.A.D.; decided and approved for publication June 13, 2013. Before Judges Messano, Lihotz and Kennedy. On appeal from the Law Division, Passaic County, L-4424-08. [Sat below: Judge Graziano.] DDS No. 29-2-0277 [32 pp.]

Plaintiff James Flood, the father of Keisha Flood and the administrator of her estate, filed this medical-malpractice action after she died of cardiac arrest following sepsis resulting from a small bowel obstruction. The case proceeded to the jury only as to Dr. Bhanu Aluri-Vallabhaneni, a radiologist.

At the charge conference, the judge indicated his intention to charge the jury using Model Jury Charge (Civil) 5.50E "Pre-existing Condition — Increased Risk/Loss of Chance — Proximate Cause" (May 2010). The proposed verdict sheet incorporated the first two interrogatories appended to the model charge, i.e., whether plaintiff proved Aluri deviated from accepted medical standards and whether that deviation increased the risk of harm posed by the pre-existing bowel obstruction. It then asked whether Aluri had proved that each settling defendant deviated from acceptable medical standards and if that deviation increased the risk of harm posed by the pre-existing condition. It then asked the jury to state whether the increased risk was a substantial factor in causing Keisha's death by stating in percentages what portion of the death was a result of the pre-existing condition, Aluri's deviation, and each settling doctor's deviation.

Defense counsel submitted alternative jury interrogatories that the judge agreed to use. They asked whether Aluri deviated from accepted medical standards, whether that deviation increased the risk of harm from the pre-existing condition, and whether the increased risk was a substantial factor in causing the death.

The jury found that Aluri had deviated from accepted medical practice, that the deviation increased the risk of harm from the pre-existing condition, but that the increased risk was not a substantial factor in causing the death. The judge entered judgment in favor of Aluri. Plaintiff appeals, challenging the court's departure from the Model Charge 5.50E and the model jury interrogatories.

Held: The judge's instructions followed the language of the model charge and the interrogatories used did not mislead the jury or misstate the law. The model charge jury interrogatories are erroneous. They potentially relieve the plaintiff of the burden of proving both parts of the lessened proximate-cause standard applicable to these types of medical-malpractice lawsuits. Continued use of the model interrogatories as currently written is disapproved.

The panel begins by reviewing the case law addressing causation in the context of allegations that a doctor's negligence exacerbated a pre-existing condition, which established the two-pronged substantial-causation test under which a plaintiff must prove that as a result of defendant's negligence, she experienced an increased risk of harm and that the increased risk was a substantial factor in causing the ultimate injury. This was reflected in Model Charge 5.36E. Case law then established that once the plaintiff has established the two-prong inquiry, it must address the apportionment of damages. The need for a clearer instruction on the legal significance of "substantial" was referred to the Committee on Model Civil Jury Charges, which resulted in Model Charge 5.50E, which clearly met that directive.

However, the jury interrogatories appended to the revised model charge differed significantly from the prior ones. Questions 1 and 2 remained the same, but 3 now focused on apportionment, explaining that on this issue, the defendant bore the burden of proof. If the jury answers question 3 in the negative, it is directed immediately to question 5, the damages question, having been told that "the defendant is responsible for all of the plaintiff's injuries unless the defendant is able to reasonably apportion the damages." Thus, if the defendant fails to shoulder his burden on apportionment, the jury is never asked to find whether the increased risk was a "substantial factor" in bringing about the ultimate injury. Thus, use of the model interrogatories potentially relieves the plaintiff of proving the second prong of the proximate-cause requirement. Such a result is contrary to the relevant case law.

The panel says here, plaintiff concedes that the judge properly instructed the jury using the model charge. His claim of error relates solely to the insertion of question 3 on the verdict sheet.

The panel notes that interrogatories to a jury are not grounds for a reversal unless they were misleading, confusing or ambiguous when considered in the context of the charge as a whole. An accurate and thorough jury charge can cure the potential for confusion in an interrogatory.

Here, the questions on the verdict sheet tracked the current model charge and clearly explained those issues on which plaintiff bore the burden of proof, even though the questions were not those appended to the model charge. Because the charge was correct and the questions correctly stated the law, any deviation was insignificant.

The panel then considers, and rejects, plaintiff's specific arguments to the contrary. It finds, for example, that the addition of a separate "substantial factor" question did not confuse the jury since it was first told, in accordance with the model charge, that "the plaintiff must prove that the increased risk was a substantial factor in producing the ultimate harm or injury" and "substantial factor" was defined.

As to plaintiff's argument that any numerical answer to question 4's percentage allocation per force shows he succeeded in proving the increased risk was a substantial factor, the panel says it does not see why, in using the current interrogatories, a jury should be directed to answer question 4, which contains a necessary element of a plaintiff's case, only after a defendant has borne his burden of proof. Question 4 requires the jury to enter its finding on two issues for which the burdens of proof have been separately allocated by the court, i.e., plaintiff's requirement to prove proximate cause by demonstrating the increased risk was a substantial factor, and defendant's obligation to prove some percentage of damages is attributable solely to the pre-existing condition. Moreover, if defendant fails to persuade the jury on question 3, the jury never is required to find that the increased risk was a substantial factor.

The panel concludes that the model charge interrogatories are erroneous, as they potentially relieve the plaintiff of his burden of proving both parts of the lessened proximate-cause standard applicable to these types of medical-malpractice suits. The Committee on Model Civil Jury Charges is urged to revisit the issue. In the interim, use of the model interrogatories is specifically disapprove.

For appellant/cross-respondent — Daniel A. Levy (Raff & Raff). For respondents/cross-appellants — Heather M. LaBombardi (Giblin & Combs; LaBombardi and Craig S. Combs on the brief).