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1 of 2 DOCUMENTS Page 1 111 N.J. 429, *; 545 A.2d 148, **; 1988 N.J. LEXIS 84, *** ELEANOR OSTROWSKI, PLAINTIFF-APPELLANT, v. LYNN M. AZZARA, D.P.M., DEFENDANT-RESPONDENT No. A-116 Supreme Court of New Jersey 111 N.J. 429; 545 A.2d 148; 1988 N.J. LEXIS 84 March 28, 1988, Argued August 11, 1988, Decided PRIOR HISTORY: [***1] On certification to LexisNexis(R) Headnotes the Superior Court, Appellate Division. CASE SUMMARY: Torts > Damages > Mitigation Torts > Negligence > Defenses > Contributory Negli- PROCEDURAL POSTURE: Appellant injured party gence > General Overview challenged the judgment of the Superior Court, Appellate [HN1] The doctrine of avoidable consequences proceeds Division (New Jersey), which affirmed a judgment in on the theory that a plaintiff who has suffered an injury favor of respondent doctor in appellant's malpractice as the proximate result of a tort cannot recover for any action. portion of the harm that by the exercise of ordinary care he could have avoided. OVERVIEW: Appellant was a diabetic who was re- ferred to respondent doctor to treat an infected toe. Re- spondent removed the toenail, and appellant developed Torts > Damages > Mitigation complications which resulted in two by-pass operations. Torts > Negligence > Defenses > Comparative Negli- Appellant filed suit for malpractice. At trial, the jury gence > General Overview found appellant 51 percent negligent, and the trial court Torts > Negligence > Defenses > Contributory Negli- entered judgment in favor of respondent. Appellant chal- gence > General Overview lenged the trial court's judgment, and the lower court [HN2] Avoidable consequences normally comes into affirmed. Appellant challenged the lower court's judg- action when the injured party's carelessness occurs after ment. The court reversed and remanded the case for a the defendant's legal wrong has been committed. Con- new trial. The court held that comparative negligence tributory negligence, however, comes into action when applied only to the appellant's conduct up to the time of the injured party's carelessness occurs before defendant's the surgery, and that any actions on the part of appellant wrong has been committed or concurrently with it. after the surgery which contributed to her worsening condition were mitigation issues to be considered in cal- culating damages. The court held that the jury charge Torts > Damages > Mitigation regarding comparative negligence failed to distinguish Torts > Negligence > General Overview between pre and post-surgery conduct; therefore, the jury [HN3] A counterweight to the doctrine of avoidable could have erroneously considered the post-surgery consequences is the doctrine of the particularly suscepti- conduct in determining comparative fault. ble victim. This doctrine is that defendant must take plaintiff as he finds him. OUTCOME: The court reversed the lower courts' judgments and remanded the case for a new trial. The court held that the jury charge on comparative negli- Torts > Damages > General Overview gence was erroneous because it failed to distinguish be- [HN4] The injured person's conduct is irrelevant to the tween appellant's pre operation conduct and consideration of the doctrine of aggravation of a preex- post-operation conduct. The court held that isting condition. Negligence law generally calls for an post-operation conduct should not have been considered apportionment of damages when a plaintiff's antecedent in determining comparative fault, but only in determin- negligence is found not to contribute in any way to the ing mitigation of damages. original accident or injury, but to be a substantial con- tributing factor in increasing the harm which ensues. Page 2 111 N.J. 429, *; 545 A.2d 148, **; 1988 N.J. LEXIS 84, *** [*431] [**149] This case primarily concerns the legal significance of a medical malpractice claimant's Torts > Negligence > Causation > Proximate Cause > pre-treatment health habits. Although [*432] the par- Foreseeability ties agreed that such habits should not be regarded as [HN5] When negligent conduct creates a risk, setting off evidencing comparative fault for the medical injury at foreseeable consequences that lead to plaintiff's injury, issue, we find that the instructions to the jury failed to the conduct is deemed the proximate cause of the injury. draw the line clearly between the normal mitigation of damages expected of any claimant and the concepts of comparative fault that can preclude recovery in a Torts > Negligence > Causation > Proximate Cause > fault-based system of tort reparation. Accordingly, we Intervening Causation reverse the judgment below that disallowed any recovery [HN6] Proximate cause is any cause which in the natural to the diabetic plaintiff who had bypass surgery to cor- and continuous sequence, unbroken by an efficient in- rect a loss of circulation in a leg. The need for this by- tervening cause, produces the result complained of and pass [***2] was found by the jury to have been proxi- without which the result would not have occurred. mately caused by the physician's neglect in performing an improper surgical procedure on the already weakened plaintiff. Torts > Damages > Mitigation I Torts > Negligence > Defenses > Comparative Negli- gence > General Overview As noted, the parties do not dispute that a physician Torts > Negligence > Defenses > Contributory Negli- must exercise the degree of care commensurate with the gence > General Overview needs of the patient as she presents herself. This is but [HN7] The doctrine of contributory negligence bars any another way of saying that a defendant takes the plaintiff recovery to the claimant whose negligent action or inac- as she finds her. The question here, however, is much tion before the defendant's wrongdoing has been com- more subtle and complex. The complication arose from pleted has contributed to cause actual invasion of plain- the plaintiff's seemingly routine need for care of an irri- tiff's person or property. By contrast, the doctrine of tated toe. The plaintiff had long suffered from diabetes avoidable consequences comes into play at a later stage. attributable, in unfortunate part perhaps, to her smoking Where the defendant has already committed an action- and to her failure to adhere closely to her diet. Diabetic able wrong, whether tort or breach of contract, then this patients often have circulatory problems. For purposes doctrine of avoidable consequences limits the plaintiff's of this appeal, we shall accept the general version of the recovery by disallowing only those items of damages events that led up to the operation as they are set forth in which could reasonably have been averted. Contributory defendant-physician's brief. negligence is to be asserted as a complete defense, On May 17, 1983, plaintiff, a heavy smoker and an whereas the doctrine of avoidable consequences is not insulin-dependent diabetic for twenty years, first con- considered a defense at all, but merely a rule of damages sulted with defendant, Lynn Azzara, a doctor of podiatric by which certain particular items of loss may be ex- medicine, a specialist in the care of feet. Plaintiff had cluded from consideration. been referred to Dr. Azzara by her internist [***3] COUNSEL: Hanan M. Isaacs argued the cause for ap- whom she had last seen in November 1982. Dr. Az- pellant (Felmeister & Isaacs, attorneys). zara's notes indicated that plaintiff presented a sore left big toe, which had troubled her for approximately one John W. O'Farrell argued the cause for respondent month, and calluses. She told Dr. Azzara that she often (Francis & Berry, attorneys; Susan R. Rubright, on the suffered leg [*433] cramps that caused a tightening brief). of the leg muscles or burning in her feet and legs after walking and while lying in bed. She had had hyperten- JUDGES: For reversal and remand -- Chief Justice sion (abnormally high blood pressure) for three years and Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, was taking a diuretic for this condition. Garibaldi and Stein. Opposed -- None. The opinion Physical examination revealed redness in the plain- of the Court was delivered by O'Hern, J. tiff's big toe and elongated and incurvated toenails. In- curvated toenails are not ingrown; rather, they press OPINION BY: O'HERN against the skin. Diminished pulses on her foot indi- cated decreased blood supply to that area, as well as de- OPINION creased circulation and impaired vascular status. Dr. Azzara made a diagnosis of onychomycosis (a fungous Page 3 111 N.J. 429, *; 545 A.2d 148, **; 1988 N.J. LEXIS 84, *** disease of the nails) and formulated a plan of treatment the toe was much improved. While plaintiff was seeing to debride (trim) the incurvated nail. Since plaintiff had the internist, she continued to see Dr. Azzara, or her as- informed her of a high blood sugar level, Dr. Azzara sociate, Dr. Bergman. During this period the toe was ordered a fasting blood sugar test and a urinalysis; she healing slowly, as Dr. Azzara said one would expect with also noted that a vascular examination should be consid- a diabetic patient. ered for the following week if plaintiff showed no im- During the time plaintiff was being treated by her provement. internist and by Dr. Azzara, she continued to smoke de- [***4] Plaintiff next saw Dr. Azzara three days spite advice to the contrary. Her internist testified at the later, on May 20, 1983. The results of the fasting blood trial that smoking accelerates and aggravates peripheral sugar test indicated plaintiff's blood sugar was high, with vascular disease and that a diabetic patient with vascular a reading of 306. The urinalysis results also indicated disease can by smoking accelerate the severity of the plaintiff's blood sugar was above normal. At this sec- vascular disease by as much as fifty percent. By ond visit, Dr. Azzara concluded that plaintiff had periph- mid-July, plaintiff's toe had become more painful and eral vascular disease, poor circulation, and diabetes with discolored.
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