                                 NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4448-18T1

JOSEPH KNIGHT and LORRAINE
KNIGHT, husband and wife,

          Plaintiffs-Appellants/
          Cross-Respondents,

v.

VANCE J. WEBER, M.D., SANJIV
PRASAD, M.D., ASSOCIATES IN
CARDIOVASCULAR DISEASE,
PRACTICE ASSOCIATES MEDICAL
GROUP, and ATLANTIC HEALTH
SYSTEM, MORRISTOWN MEDICAL
CENTER,

     Defendants-Respondents/
     Cross-Appellants.
________________________________

                   Argued telephonically May 19, 2020 –
                   Decided June 24, 2020

                   Before Judges Yannotti, Hoffman and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Docket No. L-2692-14.
              Paul Manuel Da Costa argued the cause for
              appellants/cross-respondents (Snyder Sarno D'Aniello
              Maceri Da Costa, attorneys; Paul Manuel Da Costa,
              Sherry L. Foley, and Timothy Joseph Foley, of counsel
              and on the briefs).

              Anthony Cocca argued the cause for respondents/cross-
              appellants (Cocca & Cutinello, LLP, attorneys;
              Anthony Cocca and Katelyn E. Cutinello, of counsel
              and on the briefs).

PER CURIAM

        In this medical malpractice case, plaintiff Joseph Knight 1 appeals from the

order of judgment entered on September 13, 2018 in favor of defendants Vance

J. Weber, M.D., Sanjiv Prasad, M.D., Associates in Cardiovascular Disease,

LLC (AICD), Practice Associates Medical Group, and Atlantic Health System,

Corporation/Morristown Medical Center (AHS/MMC). Plaintiff also appeals a

May 21, 2019 order denying his motion for a new trial.

        Defendants cross-appeal from the August 29, 2018 in limine ruling

granting plaintiff's motion to bar defendants from presenting informed consent

evidence relating to the risks of treatment alternatives at trial. After reviewing

the record in light of the applicable law, we vacate the September 13, 2018 order

of judgment, remand for a new trial on all issues of liability and damages, and



1
    Lorraine Knight's claim was dismissed prior to trial.
                                                                            A-4448-18T1
                                          2
reverse the May 21, 2019 order denying plaintiff's motion for a new trial. We

affirm the August 29, 2018 in limine ruling on the informed consent issue.

                                        I.

      We discern the following facts from the evidence adduced at trial and the

motion record. In March 2004, plaintiff began treating with Dr. Prasad at AICD

for hypertension, high cholesterol, and family history of premature coronary

artery disease.   He was also a smoker.      On November 12, 2012, plaintiff

developed chest discomfort while visiting his daughter in Florida. After being

evaluated at an emergency room, he was diagnosed with a "small heart attack."

A stress test revealed scarring in the bottom wall of his heart, a condition known

as mild ischemia. Following complaints of further chest discomfort, plaintiff

was transferred to another hospital to undergo a cardiac catheterization to

determine whether he needed placement of a stent.

      On November 14, 2012, plaintiff underwent a cardiac catheterization with

balloon angioplasty. The procedure revealed the left side of plaintiff's heart was

functioning normally, but his right coronary artery had a complex and significant

blockage.   The Florida doctors attempted but failed to place a stent after

experiencing great difficulty because of the condition of plaintiff's artery.

Instead, they performed a successful balloon angioplasty, which provided a


                                                                          A-4448-18T1
                                        3
controlled dissection in the area of the blood vessel lesion. It was undisputed

by the experts for all parties at trial that plaintiff sustained damage to his heart

as a result of his heart attack.

      Plaintiff returned to New Jersey and was evaluated by Dr. Prasad on

November 20, 2012. On February 4, 2013, plaintiff underwent elective cardiac

catheterization with possible stent placement, as recommended by Dr. Prasad.

His partner, Dr. Weber, performed the procedure.              During the cardiac

catheterization, the record shows that plaintiff's proximal right coronary artery

was mechanically dissected by Dr. Weber, and plaintiff suffered another heart

attack as a result. He had to undergo emergency coronary artery bypass grafting

surgery by Dr. Steve Xydas, a cardiac surgeon. After spending two weeks in

the hospital, plaintiff was discharged on February 20, 2013.

      Plaintiff asserted professional negligence and lack of informed consent

claims against defendants.         On August 24, 2018, plaintiff filed a pre-trial

information exchange, withdrawing his informed consent claim and seeking in

limine to "bar [d]efendants from moving into evidence, or making reference to,

informed consent documents and any risks of catheterization being told to

[p]laintiff[]." The trial court heard argument on plaintiff's motion and instructed

counsel to refrain from presenting any argument or evidence on the issue of


                                                                            A-4448-18T1
                                           4
informed consent. The matter was tried before a jury between August 29, 2018

and September 13, 2018.

      At trial, plaintiff contended that the defendant doctors' recommendations

to undergo cardiac catheterization and Dr. Weber's performance of the procedure

constituted deviations from the accepted standards of medical care because the

procedure was not medically necessary. As a proximate result of defendants'

negligence, plaintiff argued a mechanical dissection of the aorta occurred, which

led to a heart attack and the need for emergency bypass surgery.

      Plaintiff presented evidence that defendants' recommendations to undergo

cardiac catheterization and Dr. Weber's performance of the procedure was a

deviation from the accepted standards of care because the procedure was not

medically necessary. In support of these claims, plaintiff presented testimony

from Dr. Brian Swirsky, an expert in the field of interventional cardiology.

      Dr. Swirsky testified that but for the catheterization procedure, there

would not have been a mechanical dissection of the aorta and hence, no heart

attack or emergency surgery. The expert also opined that a blockage similar to

the one plaintiff had, if treated only with balloon angioplasty and without stent

placement, presented a risk of restenosis, which could lead to congestive heart

failure or heart attack, requiring emergency bypass surgery.


                                                                         A-4448-18T1
                                       5
      Plaintiff also proffered testimony from Dr. Xydas, the cardiac surgeon

who performed the emergency bypass surgery. Dr. Xydas testified that the

mechanical dissection of plaintiff's right coronary artery caused his heart attack

and led to the emergency surgery. Dr. Grigory S. Rasin, a psychiatrist, testified

as to plaintiff's development of post-traumatic stress disorder (PTSD) as a result

of the dissection of the aorta, heart attack, and bypass surgery.

      Defendants denied they deviated from any standards of care and

maintained plaintiff's injuries were due to his pre-existing condition. They

presented testimony from Dr. Daniel P. Conroy, Jr., a cardiology expert, and Dr.

Marc Cohen, an interventional cardiology expert. Both experts testified that, as

a result of his earlier heart attack in Florida, plaintiff had a blockage requiring

treatment, including catheterization, and if that failed, bypass surgery. With

continued medical therapy alone, Doctors Conroy and Cohen opined that it was

more likely than not plaintiff would develop further narrowing and occlusion of

the right coronary artery, which would lead to a heart attack, congestive heart

failure, or death.

      The defendant doctors testified on their own behalf and both agreed

plaintiff suffered an acute dissection of his right coronary artery that was

mechanically induced, resulting in his heart attack, emergency surgery, and


                                                                           A-4448-18T1
                                        6
additional damage to his heart. However, they concurred with the defense

experts that recommending against the procedure would have exposed plaintiff

to re-occlusion of his right coronary artery, a probable heart attack, possible

heart failure, and death. In accordance with the trial court's ruling barring

informed consent evidence, neither defendant was permitted to testify regarding

alternative treatments discussed with plaintiff.

      At the close of evidence, plaintiff moved for partial judgment pursuant to

Ponzo v. Pelle, 166 N.J. 481 (2001), and requested that if the jury determined

one or both defendant doctors deviated from the standard of care in

recommending and performing the cardiac catheterization procedure, then the

jury need not find causation, but should proceed directly to the issue of damages.

Plaintiff based the request on the experts' agreement that the mechanical

dissection could only have been caused by the catheterization procedure, and

could never have happened naturally. The trial court denied the motion.

      At the jury charge conference, defendants requested a pre-existing

condition charge, pursuant to Scafidi v. Seiler, 119 N.J. 93 (1990), based on

plaintiff's history of hypertension, high cholesterol, family history of premature

coronary artery disease, smoking, prior heart attack, myocardial infraction,

ventricular damage, and right coronary artery blockage in a tortuous vessel.


                                                                          A-4448-18T1
                                        7
Plaintiff's counsel responded that no evidence was presented to prove plaintiff's

pre-existing cardiac condition could have caused the mechanical dissection. The

Scafidi charge was given by the trial court.

      Additionally, the trial court granted plaintiff's request for separate jury

interrogatories addressing the alleged deviation from the standard of care by

each defendant doctor in recommending plaintiff undergo a cardiac

catheterization. Plaintiff's request for a separate jury interrogatory on PTSD

was denied.

      On September 13, 2018, the jury found that both doctors Prasad and

Weber deviated from accepted standards of care but determined that their

deviations did not increase the risk of harm posed by plaintiff's pre -existing

condition. In rendering their verdict, the jury responded:

              THE CLERK: Madam Forelady, will you please rise?
              Have the members of the jury reached a verdict?

              FOREPERSON: Yes, ma'am.

              THE CLERK: As to question number one: "Has
              [plaintiff] proven by the preponderance of the evidence
              that Dr. Sanjiv Prasad deviated from accepted
              standard[s] of medical practice by recommending that
              [plaintiff] undergo a cardiac catheterization?"

              FOREPERSON: We have voted yes.

              THE CLERK: And what was your vote?

                                                                         A-4448-18T1
                                        8
FOREPERSON: 8-0.

THE CLERK: As to question number two: "Has
[plaintiff] proven that Dr. Prasad's deviation from
accepted standards of medical practice increased the
risk of harm posed by [plaintiff's] pre[-]existing
condition?"

FOREPERSON: We have voted no.

THE CLERK: May I have your vote, please?

FOREPERSON: 8-0.

THE CLERK: As to question number five: "Has
[plaintiff] proven by a preponderance of the evidence
that Dr. Vance Weber deviated from accepted standards
of medical practice by recommending that [plaintiff]
undergo a cardiac catheterization, or by performing the
cardiac catheterization?"

FOREPERSON: We have voted yes.

THE CLERK: May I have your vote, please?

FOREPERSON: 8-0.

THE CLERK: As to question number six: "Has
[plaintiff] proven that Dr. Weber's deviation from
accepted standards of medical practice increased the
risk of harm posed by [plaintiff's] pre[-]existing
condition?"

FOREPERSON: We voted no.

THE CLERK: And may I have your vote, please?

FOREPERSON: 8-0.

                                                          A-4448-18T1
                          9
             THE CLERK: You can be seated.

             THE COURT: So that's your verdict, correct? Counsel?

                   ....

             Do you want to poll the jury?

             [PLAINTIFF'S COUNSEL]: No, Judge.

             THE COURT: Okay.              All right, ladies and
             gentlemen. . . . So once again, you're now discharged.
             Thank you all very much.

The judge accepted the verdict and entered judgment in favor of defendants.

Neither the foreperson nor any member of the jury expressed any confusion or

error in the court's interpretation of the verdict.

      On October 2, 2018, plaintiff moved for a new trial pursuant to Rule 4:49-

1. He argued the court erred by giving the pre-existing condition charge and

including same on the verdict sheet. Plaintiff also argued that the court should

have instructed the jury to proceed directly to the issue of damages once they

determined defendants deviated from the accepted standard of care and forego a

causation analysis. Defendants opposed the motion contending the pre -existing

condition charge was appropriate.

      Oral argument was scheduled for November 20, 2018. While the motion

was pending, the court requested the clerk's file, which contained the official


                                                                        A-4448-18T1
                                         10
verdict sheet completed by the jury. The official verdict sheet revealed that in

addition to the jury's answers to interrogatories one, two, five, and six, the jurors

continued to answer interrogatories nine, ten, and eleven, which considered

liability, apportionment, and damages. On January 30, 2019, the court wrote to

counsel about the discovery and provided copies.

      In apportioning liability, the jury allotted sixty percent to Dr. Weber's

deviation from care, forty percent to Dr. Prasad, and zero percent to plaintiff's

pre-existing condition.      When presented with the issue of determining the

amount of money that would "fairly and reasonably compensate [p]laintiff . . .

for his current, past, and future physical and mental pain and suffering," the

jurors awarded $603,796.       In the interrogatory addressing what amount of

money "would fairly and reasonably compensate [p]laintiff . . . for his past

medical expenses[,]" the jurors awarded $98,856, which was the "full amount

requested from plaintiff."

      On February 4, 2019, the trial court conducted a conference in light of the

recently discovered information.       The court stated in reviewing plaintiff's

motion for a new trial, he listened to the jury's verdict "several times to make

sure [he] didn't miss something in there, because it was an 8-0 verdict." On that

date and in supplemental briefing, plaintiff argued that the court should exercise


                                                                             A-4448-18T1
                                        11
its discretion and utilize Rule 1:31-1 to correct a mistake that would result in a

miscarriage of justice, or reopen and correct the judgment pursuant to Rule 4:50-

1. In opposition, defendants argued that the jury intended to return a "no c ause

of action," as announced in open court notwithstanding the verdict sheet.

      After reviewing the entire verdict sheet and hearing arguments of counsel,

the court determined:

            There is no suggestion that the interrogatories
            presented to the jury in this case were misleading,
            confusing or ambiguous.          Nor was there any
            inconsistency in the verdict rendered on September 13,
            2018. The jury answered questions [one], [two], [five]
            and [six] unanimously, finding that [d]efendants, Dr.
            Prasad and Dr. Weber, each deviated from accepted
            standards of medical practice, but that those deviations
            did not increase the risk of harm posed by [plaintiff's]
            pre-existing condition.

            The foreperson and other members of the jury did not
            hesitate, request that any of the remaining
            interrogatories be read, or in any way otherwise
            indicate that the verdict as it was read in court, before
            the [p]laintiff[], [d]efendants and their lawyers was
            incomplete or incorrect. There is no dispute that the
            jury intended to, and in fact did, deliver a verdict of "no
            cause of action." Judgment favored . . . [d]efendants.
            The jury accordingly was discharged upon announcing
            its decision.

            In the court's opinion, [the] recently obtained
            completed jury [v]erdict [s]heet creates no ambiguity or
            inconsistency, and cannot demonstrate that the jury was
            confused or mis[led].

                                                                          A-4448-18T1
                                       12
            [Footnote omitted.]

On May 21, 2019, the trial court entered a memorializing order denying

plaintiff's motion for a new trial or, in the alternative, an amended judgment.

      On appeal, plaintiff argues that the trial court erred by: (1) denying the

motion for a new trial based on the completed verdict sheet; (2) using a verdict

sheet based on plaintiff's "irrelevant" pre-existing condition rather than case-

specific interrogatories; (3) giving the jury a Scafidi charge; and (4) ruling he

would give the jury separate interrogatories for PTSD damages and then

reversing that ruling after counsel made their closing arguments.

      In their cross-appeal, defendants argue that if a new trial is ordered, they

must be allowed to present evidence of the risks of treatment alternatives, which

the trial court excluded on the eve of trial when plaintiff withdrew his informed

consent claim.

                                        II.

      We recognize the fundamental principle that jury trials are a bedrock part

of our system of civil justice and the fact-finding of a jury deserves a high degree

of respect and judicial deference. See e.g., Caldwell v. Haynes, 136 N.J. 422,

432 (1994). In terms of its assessment of the relative strength of the proofs, a

jury verdict is "impregnable unless so distorted and wrong, in the objective and


                                                                            A-4448-18T1
                                        13
articulated view of a judge, as to manifest with utmost certainty a plain

miscarriage of justice." Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div.

2003) (quoting Carrino v. Novotny, 78 N.J. 355, 360 (1979)).

      Rule 4:49-1(a) provides that a trial judge shall grant a new trial if, "having

given due regard to the opportunity of the jury to pass upon the credibility of the

witnesses, it clearly and convincingly appears that there was a miscarriage of

justice under the law." Jury verdicts are thus "entitled to considerable deference

and 'should not be overthrown except upon the basis of a carefully reasoned and

factually supported (and articulated) determination, after canvassing the record

and weighing the evidence, that the continued viability of the judgment would

constitute a manifest denial of justice.'" Risko v. Thompson Muller Auto. Grp.,

Inc., 206 N.J. 506, 521 (2011) (quoting Baxter v. Fairmont Food Co., 74 N.J.

588, 597-98 (1977)); see also Boryszewski v. Burke, 380 N.J. Super. 361, 391

(App. Div. 2005) (indicating that "[j]ury verdicts should be set aside in favor of

new trials only with great reluctance, and only in cases of clear injustice."). In

reviewing a trial judge's decision on a motion for a new trial, we view the

evidence in a light most favorable to the party opposing the new trial motion.

Caldwell, 136 N.J. at 432.




                                                                            A-4448-18T1
                                       14
      When evaluating a decision of whether to grant or deny a new trial, we

must give "due deference" to the trial court's "feel of the case." Risko, 206 N.J.

at 522 (citations omitted). Importantly, a judge may not "substitute his judgment

for that of the jury merely because he would have reached the opposite

conclusion; he is not a thirteenth and decisive juror." Dolson v. Anastasia, 55

N.J. 2, 6 (1969). "That is not to say . . . that [an appellate court] must accept the

trial court's legal reasoning[,]" which is reviewed de novo. Hayes v. Delamotte,

231 N.J. 373, 386-87 (2018).

      Here, plaintiff argues he is entitled to a new trial, or in the alternative an

amended judgment, upon the discovery of the jury's original verdict sheet, which

included additional, undisclosed information contrary to what the court and

parties believed the verdict was. When read as a whole, plaintiff contends that

the verdict sheet shows that the jury unanimously found Doctors Prasad and

Weber were both negligent for recommending and performing the cardiac

procedure, and were liable for one hundred percent of the resulting damage. In

turn, since the jury attributed zero percent of the causal effect to plaintiff's pre -

existing condition, the doctors' negligence did not increase the risk of harm

resulting from his pre-existing condition.




                                                                              A-4448-18T1
                                        15
      We conclude that the trial court erred by denying plaintiff's motion for a

new trial. The verdict sheet, which came to light when plaintiff made his motion

for a new trial, indicated that the jury found defendants' deviations were the

proximate cause of plaintiff's ultimate injuries, not his pre-existing condition.

Moreover, the jury awarded plaintiff damages.

      Because the trial court did not discover the inconsistences with the

completed verdict sheet until long after the jury was discharged, thereby

precluding the opportunity to clarify the confusion, there was a miscarriage of

justice warranting a new trial.     See Baxter, 74 N.J. at 597-98.       We reject

plaintiff's argument that Rule 4:50-1 should be invoked to amend the judgment

to conform with the original verdict sheet.2

      Courts should use Rule 4:50-1 "sparingly, in exceptional situations; the

[r]ule is designed to provide relief from judgments in situations in which, were

it not applied, a grave injustice would occur." Hous. Auth. of Morristown v.

Little, 135 N.J. 274, 389 (1994). Neither the jury foreperson nor the other

members of the jury made an effort to correct the court when he asked whether


2
  Rule 4:50-1 provides a court may grant a party relief from a judgment or order
upon a showing of: "(a) mistake, inadvertence, surprise, or excusable neglect;
(b) newly discovered evidence . . . ; (c) fraud . . . ; (d) the judgment or order is
void; (e) the judgment or order has been satisfied . . . ; or (f) any other reason
justifying relief from the operation of the judgment or order."
                                                                            A-4448-18T1
                                        16
what the foreperson declared was their final verdict. Moreover, it was not

explicitly communicated that the verdict was in favor of plaintiff or defendants

at all. Clearly, the jury was confused and rendered an inconsistent verdict

incapable of justifying relief under Rule 4:50-1. We conclude that a new trial

on liability and damages is warranted. As a result, we reverse the order denying

plaintiff's motion for a new trial or amended judgment.

                                          III.

      Next, plaintiff contends the judge erred by charging the jury pursuant to

Scafidi. Under Scafidi, "a careful analysis . . . is required to determine whether

the evidence is sufficient to permit a jury to decide, as a matter of reasonable

medical probability, that both prongs of a two-part test are satisfied." Anderson

v. Picciotti, 144 N.J. 195, 206 (1996).

      The first prong requires evidence that the defendant deviated from the

applicable standard of care and that such deviation increased the risk of harm to

the plaintiff from an established pre-existing condition. Ibid. If that prong is

satisfied, the jury must determine whether the deviation, in the context of the

pre-existing condition, was "sufficiently significant in relation to the eventual

harm to satisfy the requirement of proximate cause." Ibid. (citing Scafidi, 119

N.J. at 109).


                                                                          A-4448-18T1
                                          17
      The defendant has the "burden of segregating recoverable damages from

those solely incident to the pre[-]existing disease." Id. at 212 (quoting Fosgate

v. Corona, 66 N.J. 268, 273 (1974)). The defendant must "demonstrate that the

damages for which he is responsible are capable of some reasonable

apportionment and what those damages are." Id. at 208 (quoting Fosgate, 66

N.J. at 273).

      On appeal, plaintiff argues that it was "legally impossible" for the court

to give a Scafidi charge because the ultimate harm he suffered was the

mechanical dissection of his coronary artery during the cardiac catheterization

procedure, which he claims never could have happened naturally and cannot be

considered a pre-existing condition. We disagree.

      In negligence claims, the burden of proof on all elements is ordinarily on

the plaintiff. Myrlak v. Port. Auth., 157 N.J. 84, 95 (1999); Buckelew v.

Grossbard, 87 N.J. 512, 525 (1981). Each element must be established by a

preponderance of the evidence. Saks v. Ng, 383 N.J. Super. 76, 98 (App. Div.

2006); see also Model Jury Charges (Civil), 1.12H "Preponderance of the

Evidence" (approved Nov. 1998). In medical malpractice cases, a plaintiff must

prove the applicable standard of care, that a deviation from that standard has




                                                                         A-4448-18T1
                                      18
occurred, and that the deviation proximately caused the injury. Verdicchio v.

Ricca, 179 N.J. 1, 23 (2004) (citations omitted).

      "To recover damages for the negligence of another, a plaintiff must prove

that the negligence was a proximate cause of the injury sustained." Scafidi, 119

N.J. at 101. Though "the concept resists definition," courts describe proximate

cause as "a standard for limiting liability for the consequences of an act based

upon mixed considerations of logic, common sense, justice, policy and

precedent." Ibid. (internal quotation marks and citations omitted). It is "a

factual issue, to be resolved by the jury after appropriate instruction by the trial

court." Ibid.

      The standard jury charge on proximate cause differs when the medical

negligence is combined with a pre-existing condition. This is because the

conflicting concepts may

            confuse or mislead a jury. The language of the standard
            charge assumes that the defendant's negligence began a
            chain of events leading to the plaintiff's injury. If a
            plaintiff has a pre[-]existent injury or disability and is
            then adversely affected by a defendant's negligence, the
            standard by which the jury evaluates causation must be
            expressed in terms consistent with the operative facts.

            [Id. at 102.]




                                                                            A-4448-18T1
                                        19
      Therefore, a different standard must apply. When a plaintiff has a pre -

existing condition in a medical malpractice action, "[e]vidence demonstrating

within a reasonable degree of medical probability that negligent treatment

increased the risk of harm posed by a pre[-]existent condition raises a jury

question whether the increased risk was a substantial factor in producing the

ultimate result." Id. at 108. Typically, this arises in situations where a plaintiff

seeks treatment for a pre-existing condition, and the medical professional,

through his or her own negligence, "either fails to diagnose or improperly treats

the condition, causing it to worsen and sometimes causing the plaintiff to lose

the opportunity to make a recovery." Komlodi v. Picciano, 217 N.J. 387, 415

(2014).

      First, the jury must verify, "as a matter of reasonable medical probability,

that the deviation [from care] . . . increased the risk of harm from the

pre[-]existent condition." Scafidi, 119 N.J. at 109. Then, the jury must use the

"substantial factor test" which requires them to determine "whether the deviation

[from care], in the context of the pre[-]existent condition, was sufficiently

significant in relation to the eventual harm to satisfy the requirement of

proximate cause." Ibid. Therefore, a provider of medical services is only liable

for an injury if the negligence, as distinguished from the pre-existing condition,


                                                                            A-4448-18T1
                                        20
was a substantial factor in producing the harm.               Importantly, "merely

establishing that a defendant's negligent conduct had some effect in producing

the harm does not automatically satisfy the burden of proving it was a substantial

factor . . . ." Verdicchio, 179 N.J. at 25.

      After the plaintiff satisfies the burden of proving the first two elements by

a preponderance of the evidence, the burden shifts so that "the defendant -

physician, not the 'innocent' patient, is required to establish the percentage of

damages attributable to the physician's negligence." Komlodi, 217 N.J. at 412

(citing Verdicchio, 179 N.J. at 37). These three steps are known as a Scafidi

charge. Id. at 413-14. When charging Scafidi, a trial court should review the

facts relevant to the instruction and identify the pre-existing disease or

condition. Id. at 417.

      In this case, the trial court was correct that

             it was uncontroverted that [plaintiff] sought treatment
             for his pre-existing cardiac condition . . . which
             included a history of high blood pressure, high
             cholesterol, family history of premature coronary artery
             disease and smoking, not to mention the prior heart
             attack, myocardial infarction, ventricular damage and
             the right coronary artery blockage in a tortuous vessel
             . . . . During the trial, [p]laintiff[] sought to prove that
             [Doctors] Prasad and Weber—in recommending a
             second cardiac catheterization and attempting to stent
             the right coronary artery—failed to appropriately
             diagnose and treat [plaintiff's] pre-existing condition.

                                                                            A-4448-18T1
                                        21
            That, in turn, caused the pre-existing condition to
            worsen and prevented [plaintiff] from obtaining the
            recovery he might otherwise have been able to achieve
            . . . . As a result [of this argument], . . . it was proper
            and necessary for the jury to be instructed to consider
            the pre-existing conditions . . . .

            [(Footnote omitted).]

      We conclude that the trial court did not err by charging the jury under

Scafidi and using a verdict sheet asking the jury to assess defendants' alleged

negligence in light of plaintiff's pre-existing condition. The evidence showed

plaintiff sought treatment from Dr. Prasad immediately after suffering from a

heart attack and failed stent procedure in Florida, which revealed significant

blockage in the form of calcified plaque in his right coronary artery and resulted

in damage to its left ventricle. Plaintiff was examined by Dr. Prasad years before

because of his personal and family history.         Clearly, plaintiff sought out

defendants "with the express purpose to obtain treatment which would alter or

delay the outcome attributable to [his heart] condition." Holdsworth v. Galler,

345 N.J. Super. 294, 299-300 (App. Div. 2001).

      There was sufficient evidence to show the cardiac catheterization was

recommended and conducted in order to treat plaintiff's pre-existing cardiac

condition, which previously resulted in a heart attack and unsuccessful remedial

procedure. Undeniably, this was a situation where there was "a likelihood o f

                                                                          A-4448-18T1
                                       22
adverse consequences based on the pre[-]existing condition alone, and the

physician's negligence hasten[ed] or otherwise fail[ed] to stem the patient's

downward course by the pre[-]existing condition." Id. at 300-01. Therefore, the

judge did not err by charging the jury under Scafidi.

      Plaintiff also challenges the court's inclusion of an interrogatory regarding

plaintiff's pre-existing condition and contends the jury should have been

instructed to decide damages immediately upon their finding that defendants

deviated from the standard of care. Again, we disagree.

      Plaintiff relies, in part, on the Court's decision in Ponzo. In that case, the

plaintiff was struck from behind by another vehicle when stopped in traffic, and

sued the defendant for negligence, citing injuries to her knee, back, and neck.

Id. at 483, 485-86. The court submitted a single interrogatory to the jury: "Did

the defendant's negligence proximately cause damage to [the plaintiff]?" Id. at

487. The jury answered in the negative and found for the defendant. Ibid. The

Court was faced with the issue of "[w]hether there was a concession that

[plaintiff] suffered a knee injury in the accident; and if so, whether the single

jury interrogatory improperly skewed the outcome of the case." Id. at 488.

      The Court held, while the plaintiff's other injuries were "hotly contested"

at trial, "there was no contest over the fact that [the plaintiff] sustained an inju ry


                                                                               A-4448-18T1
                                         23
to her knee during the accident." Id. at 490. Given that context, the Court then

turned to the issue of whether the single interrogatory used by the trial court was

misleading, confusing, or ambiguous when considering the charge as a whole.

Id. at 490. Because the defendant conceded the plaintiff's knee injury was

proximately caused by his negligence, the Court held the jury's only inquiry

regarding plaintiff's knee injury should have been damages, while her remaining

allegations called for more detailed findings. Id. at 491.

      In so holding, the Court announced that "to avoid unnecessary effort and

possible confusion, a trial judge should eliminate from disposition matters that

are not truly in contest." Id. at 492; see also Menza v. Diamond Jim's, Inc., 145

N.J. Super. 40, 45 (App. Div. 1976) (holding that "where the facts adduced leave

no doubt that if there was negligence there was also proximate cause, the jury

should be instructed only as to the issue of negligence."). For example, in

Ponzo, the trial court "should have crafted interrogatories that reflected the

concession regarding the knee injury and detailed the distinct approach that was

required of the jury" in that context, as opposed to her other injuries. Ponzo,

166 N.J. at 492.

      Plaintiff compares the circumstances of his case to those of the plaintiff

in Ponzo. He claims that the only way he could have suffered from a mechanical


                                                                           A-4448-18T1
                                       24
dissection was defendants' negligence in recommending and performing the

procedure. Further, he argues that defendants' experts conceded the dissection

could only have occurred as a result of the cardiac catheterization surgery,

making a proximate cause analysis irrelevant.

      According to plaintiff, the only issue remaining for the jury to decide was

whether defendants deviated from the standard of care; therefore, the

interrogatories, as written, were misleading and confusing, and resulted in a

miscarriage of justice. He asserts that the court should have tailored the verdict

sheet to address only the disputed elements of the case.

      On this issue, the court stated:

            In this case, to say that [d]efendants vigorously
            contested their alleged negligence and that any
            negligence on their part proximately caused any of
            plaintiff's injuries would be an understatement.
            Defendants and their experts testified and presented
            credible evidence—and [p]laintiff's own expert
            agreed—that      [plaintiff's]   pre-existing    cardiac
            condition, at the outset, presented a significant risk of
            heart attack. Based upon that evidence and the
            attendant arguments, the court concluded that it instruct
            the jury to evaluate the proximate cause and pre-
            existing condition issues consistent with Scafidi.

      The trial court was correct in its analysis. We note that the facts and

circumstances presented in Ponzo differ significantly from the case under

review. First, defendants here did not concede negligence or admit that their

                                                                          A-4448-18T1
                                         25
actions proximately caused plaintiff's injuries. Instead, defendants argued that

they recommended and performed the procedure to prevent similar harm to

plaintiff in the future—a heart attack and emergency bypass surgery. There was

a significant risk those harms would, in fact, occur based on plaintiff's pre -

existing conditions.

      Second, the analysis in a medical malpractice case differs from ordinary

negligence actions, especially where a pre-existing condition is involved. In a

medical malpractice case, plaintiff must prove the applicable standard of care, a

deviation from the standard of care, and that the deviation proximately caused

the injury, by a preponderance of the evidence standard. Verdicchio, 179 N.J.

at 23 (citations omitted). When there is an issue of a pre-existing condition in a

medical malpractice case, the jury must decide "as a matter of reasonable

medical probability, that the deviation [from care] . . . increased the risk of harm

from the pre[-]existent condition" and "whether the deviation [from care] . . .

was sufficiently significant in relation to the eventual harm to satisfy the

requirement of proximate cause." Scafidi, 119 N.J. at 109.

      Here, the central issue is whether defendants' alleged deviation from the

standard of care increased the risk of harm already posed to plaintiff due to his

cardiac condition. The focus is not simply whether the mechanical dissections


                                                                            A-4448-18T1
                                        26
would or would not have occurred but whether defendants' alleged deviation

from the standard of care "combine[d] with [plaintiff's] pre[-]existent condition

to cause harm . . . . " Holdsworth, 345 N.J. Super. at 300. Even if "defendant's

negligent conduct had some effect in producing the harm[,] [it] does not

automatically satisfy the burden of proving it was a substantial factor . . . ."

Verdicchio, 179 N.J. at 25. This analysis was set forth in the interrogatories

provided to the jury. 3

      We are convinced that the trial court properly included a specific

interrogatory regarding plaintiff's pre-existing condition.

                                        IV.

      Next, plaintiff argues the trial court erred by declining to use separate jury

interrogatories regarding his PTSD claim after initially ruling that the charges




3
   The jury interrogatories first asked jurors to determine whether defendants
deviated from the standard of care. If answered in the affirmative, the jury was
instructed to proceed to the next question, which asked whether that deviation
increased the risk of harm already posed by plaintiff's pre-existing condition. If
answered in the affirmative, the jury was instructed to proceed again to the next
question, which asked whether the increased risk was a substantial factor in
causing plaintiff's ultimate injuries. If answered in the affirmative, the jury was
guided to the final question, which asked whether the defendant doctors met
their burden of apportioning some fault to plaintiff. The jury never reached the
third step of the analysis, after finding the defendants' negligence did not
increase the risk of harm posed by plaintiff's pre-existing condition.
                                                                            A-4448-18T1
                                       27
and verdict sheet "would cover PTSD separately" using a different causation

charge. Again, we disagree.

      Plaintiff argued before the trial court, and reiterates on appeal, that any

pre-existing medical condition he may have had was devoid of any precursors

for developing PTSD. He contends that instructing the jurors to assess his PTSD

damages in the same vein as his other damages using the "increased risk"

analysis was misleading, confusing, and not based on the evidence. Further,

plaintiff's counsel asserts that he made statements during his closing argument,

assuring the jurors that PTSD damages would be specifically included on the

verdict sheet and were not, leaving them to speculate about the omission.

      After considering the issue again, the trial court indicated "it would be

prudent to just let the jury consider . . . [PTSD] as part of the damages" and only

decided to change its ruling after listening to closing arguments. The court

determined nothing in the summations "would be found by anybody to be

contradictory."

      When reviewing an error in a trial court's jury charge, a reviewing court

"must examine the charge as a whole, rather than focus on individual errors in

isolation." Washington v. Perez, 219 N.J. 338, 351 (2014) (quoting Viscki v.

Fowler Equip. Co., 173 N.J. 1, 18 (2002)). An appellate court should not reverse


                                                                           A-4448-18T1
                                       28
a trial court upon a consideration of the entire charge if it does not "confuse or

mislead the jury." Sons of Thunder v. Borden, Inc., 148 N.J. 396, 418 (1997).

This includes situations "where the jury outcome might have been different had

the jury been instructed correctly." Perez, 219 N.J. at 351 (quoting Velazquez

v. Portadin, 163 N.J. 677, 688 (2000)).

      Because "trial court[s] must tailor [their] instructions on the law to the

theories and facts of a complex case for a jury to fully understand the task before

it[,]" Komlodi, 217 N.J. at 409, the court's decisions on giving those instructions

are entitled to deference unless they confuse or mislead the jury. Based upon

our careful review of the record, we conclude that the trial court did not err by

declining to use a separate jury interrogatory regarding PTSD.          The court

properly determined that the jury should consider plaintiff's alleged PTSD along

with his other injuries in the interrogatory addressing damages. We see no

prejudice to plaintiff, even though the court changed its ruling after counsel gave

closing arguments.

                                        V.

      Lastly, we consider defendants' cross-appeal. They argue that if a new

trial is required, they should be allowed to introduce "informed consent"

evidence.   The trial court disallowed defendants from presenting informed


                                                                           A-4448-18T1
                                       29
consent evidence, based on the Court's decision in Ehrlich.4 At trial, over their

objection, defendants contend plaintiff's expert, Dr. Swirsky, testified about

options available to plaintiff, which prejudiced their defense.

         At a new trial, defendants assert they should be allowed to introduce

evidence of the risks or treatment alternatives and their discussions with plaintiff

regarding those alternatives because: (1) the theme of plaintiff's case was that

defendants "needlessly gambled" with plaintiff's health; (2) an exception should

be made to Ehrlich because plaintiff's expert discussed alternative treatments at

length and defendants' experts could not; and (3) refusing to would allow

plaintiff to have abandoned their informed consent claim unfairly on the eve of

trial.

         In Ehrlich, the plaintiff suffered complications from a colonoscopy and

polypectomy procedure performed by defendant, but her medical negligence

action resulted in a no cause of action verdict. 451 N.J. Super. at 123. On

appeal, she contended the trial judge erred, in part, by allowing the defendant to

present irrelevant and misleading evidence regarding her giving informed

consent for the procedures, though she did not assert a claim of informed

consent. Id. at 128.


4
    Ehrlich v. Sorokin, 451 N.J. Super. 119 (App. Div. 2017).
                                                                            A-4448-18T1
                                        30
      We announced that "[i]nformed consent is generally unrelated to the

standard of care for performing medical treatment." Id. at 129 (citing Eagel v.

Newman, 325 N.J. Super. 467, 474-75 (App. Div. 1999)). Plaintiffs generally

must meet a different standard to establish a prima facie case for lack of

informed consent. In reversing the trial court, we held that "admission of the

informed consent in [that] matter, where plaintiff asserted only a claim of

negligent treatment, constituted reversible error." Id. at 131. We concluded that

the evidence had a "capacity to mislead the jury, thereby making it capable of

producing an unjust result . . . because [a] jury might reason that the patient's

consent to the procedure implies consent to the resultant injury, . . . [losing]

sight of the central question pertaining to whether the defendant's actions

conformed to the governing standard of care." Id. at 132.

      Here, defendants assert they intended to introduce "informed consent"

evidence to establish that different options were discussed with plaintiff to rebut

the contention that the cardiac catheterization was unwarranted, and not to

suggest plaintiff assumed the risk of the procedure. Specifically, defendants

were prohibited from testifying about treatment alternatives such as medical

management, angiography, angioplasty, or coronary artery bypass grafting

surgery. We are not persuaded by defendants' argument.


                                                                           A-4448-18T1
                                       31
        The trial court properly determined that because plaintiff withdrew his

informed consent claim, there was no need to admit evidence of defendants'

conversations with plaintiff regarding the risks and benefits of other options

because it was irrelevant. We discern no abuse of discretion. Moreover, the

court    permitted   testimony   about    defendants'   thought   processes   and

considerations in reaching their recommendation. As we stated in Ehrlich,

"[i]nformed consent is generally unrelated to the standard of care for performing

medical treatment." Id. at 129. And, such evidence had the capacity to mislead

the jury. Therefore, there is no merit to defendants' cross-appeal.

        Reversed and remanded for a new trial consistent with our opinion as to

plaintiff's appeal and affirmed as to defendants' cross-appeal. We do not retain

jurisdiction.




                                                                          A-4448-18T1
                                         32
