When the New Jersey Supreme Court decided Scafidi v. Seiler, 119 N.J. 93 (1990), over 25 years ago, the medical malpractice bar thought the modified causation standard for pre-existing conditions would bring fairness and clarity to the field. Instead it has created havoc and one appellate panel recently observed, “No issue in the field of medical litigation has spawned as much discussion and debate as the proper method by which a jury should assess whether a doctor’s negligence proximately causes injury to a patient who suffers an ultimate consequence attributable to that negligence alone, or in some combination with a pre-existing medical condition.” Flood v. Alluri, 431 N.J. Super. 365, 371 (App. Div. 2013).
When a jury is asked to decide whether the increased risk of harm was a “substantial factor” in producing the ultimate result, it is given the difficult task of understanding what the word “substantial” really means. This conundrum was recognized by our Supreme Court long ago, and despite a recent change to the Model Jury Charge, the difficult problem of defining what constitutes a substantial factor still exists.
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