DENNIS H. DEMARCO v. STUART KATZ, D.M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DENNIS H. DEMARCO,

Plaintiff-Appellant,

v.

STUART KATZ, D.M.D., and GARDEN

STATE ORAL & MAXILLOFACIAL

SURGERY, L.L.C.,

Defendants-Respondents.

_____________________________________

October 27, 2014

Argued October 30, 2013 Decided

Before Judges Fuentes, Fasciale, and Haas.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Docket No.

L-1025-10.

Marc E. Lesser argued the cause for appellant

(Kronisch & Lesser, P.C., attorneys; Mr. Lesser,

on the brief).

Andrea S. Glaser and Stephen H. Schechner argued

the cause for respondents (Schechner Marcus, LLP,

attorneys; Mr. Schechner, of counsel and on the

brief; Ms. Glaser, on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

In this dental malpractice action filed by plaintiff Dennis H. DeMarco against defendants, Stuart Katz, D.M.D. (Dr. Katz) and Garden State Oral & Maxillofacial Surgery, L.L.C., the jury found that Dr. Katz deviated from the standard of care applicable to his profession, but that deviation was not a substantial factor in plaintiff's injury.

On appeal to this court, plaintiff argues the trial judge erred when he charged the jury with the "but for" proximate cause standard contained in Model Civil Jury Charge 6.11, instead of the "concurrent causes" standard reflected in Model Civil Jury Charge 6.12. The record shows the trial judge used language from both model charges to create a hybrid charge, which instructed the jury that it needed to find defendant's negligence was "a substantial factor in bringing about the resulting injury." We do not discern any error with the approach employed by the trial judge to instruct the jury on the question of proximate cause and affirm, but even if there was error, it was harmless.

I

In November 2006, plaintiff's primary or general dentist referred him to Dr. Katz to extract plaintiff's impacted wisdom tooth. At that time, Dr. Katz was part of a specialized dental practice with another dentist under the professional name of Katz & DiRienzo, L.L.C. Plaintiff's expert, Dr. Elvin J. Marged, a licensed general dentist and board certified oral surgeon from New York State, testified that defendant took a panoramic x-ray of plaintiff's teeth on November 30, 2006, and extracted "the root tips on tooth #18." The x-ray also showed the lower left wisdom tooth (tooth #17) "lying in a horizontal fashion," with the majority of the tooth in the lower jaw bone. According to Dr. Katz's records, plaintiff refused to have tooth #17 extracted at that time. Plaintiff testified that he had no recollection of having refused the extraction.

Plaintiff was sixty-five years old when he returned to Dr. Katz two years later on April 3, 2008, to extract tooth #17. Plaintiff reported to Dr. Katz that this tooth was causing him intermittent pain. It is undisputed that Dr. Katz fractured plaintiff's jaw in the course of extracting tooth #17. This fracture resulted in an injury to plaintiff's left inferior alveolar nerve, which is a sensory nerve located in the inferior alveolar canal between the tooth and the bottom of the jaw. Plaintiff's expert, Dr. Marged, described the area of the jaw where the fracture occurred as "right at the angle of the mandible . . . [or] angular." According to Dr. Marged, the post-extraction x-rays show "a big displacement where this part of the jawbone is displaced upwards superiorly, away from the bottom."

Dr. Marged also opined that the displacement of a jaw fracture has "great potential" to injure the inferior alveolar nerve because the bone's displacement causes the nerve "to be stretched or injured." Under the circumstances in this case, Dr. Marged opined that Dr. Katz should have performed a coronectomy instead of an outright extraction of tooth #17. In response to plaintiff's counsel's question, Dr. Marged gave the following definition of a coronectomy

A. A coronectomy is a procedure that's sometimes used when the risk of taking out a wisdom tooth is great because of this relationship with the nerve. The crown of the tooth is just removed and the roots are left in.

Q. And why would a coronectomy be done where the crown is removed and the roots of the tooth left in?

A. In order to avoid injury to the nerve. This is usually why it's done.

Plaintiff's theory of liability against defendant was thus based on Dr. Katz's alleged deviation from the applicable standard of care caused by his failure to perform a coronectomy instead of an extraction. We again quote directly from plaintiff's counsel's direct examination of Dr. Marged

Q. In patients who are 65 years old like Mr. DeMarco, was there any accepted rule or standard with regard to coronectomies as to whether or not they should in general in patients like that be performed on horizontally impacted wisdom teeth?

A. For this specific patient, it should have been considered.

In Dr. Marged's opinion, Dr. Katz deviated from the acceptable standard of care by extracting tooth #17 because he failed to consider: (1) plaintiff's age; (2) tooth #17 was horizontally impacted; (3) there was minimal bone in plaintiff's inferior mandible underneath tooth #17; (4) the roots of tooth #17 "instead of being separate [were] all coalesced and bulbous"; and (5) there was "no membrane around the tooth, which you would see in a normal healthy young person. And [what] . . . appears [is] that this tooth is actually jawing to the bone. It's called ankylosis."1

II

The record of the charge conference conducted by the trial court pursuant to Rule 1:8-7(a) shows plaintiff's counsel asked the judge to instruct the jury on the question of proximate cause using Model Civil Jury Charge 6.12 "because that is the only way to account for the preexisting risk factors that were mentioned in the case[.]" The judge rejected plaintiff's counsel's request and decided to use Model Civil Jury Charge 6.11, but amended the language used in the 6.11 charge by adding the "substantial factor language" from the 6.12 charge. We quote verbatim the actual instructions the judge gave to the jury on the question of proximate cause

If you find that Stuart Katz, D.M.D., was negligent you must find that Stuart Katz, D.M.D.'s negligence was a proximate cause of the instant before you can find that Stuart Katz, D.M.D. was responsible for Dennis DeMarco's claimed injury.

. . .

By proximate cause, I refer to a cause that in a natural and continuous sequence it produces the incident and resulting injury, and without which the resulting incident and injury would not have occurred. A person who is negligent is held responsible for any incident or injury that results in the ordinary course of the events from his negligence.

This means that you must first find that the resulting incident or injury to Dennis DeMarco would not have occurred but for the negligent conduct of Stuart Katz, D.M.D. Second, you must find that Stuart Katz, D.M.D.'s negligent conduct was a substantial factor in bringing about the resulting injury.

By substantial I mean that the cause is not remote or trivial or inconsequential. If you find that Stuart Katz, D.M.D.'s negligence was a cause of the incident and that such negligence was a substantial factor in bringing about the injury, then you should find that Stuart Katz, D.M.D. was a proximate cause of Dennis DeMarco's injury.

[(Emphasis added).]

The jury returned a verdict of no cause of action, finding Dr. Katz deviated from the accepted standards of practice of oral and maxillofacial surgery, but that his deviation was not a substantial factor in causing plaintiff's injury.

III

In this appeal, plaintiff argues the court's instructions on proximate cause "constrained" the jury to accept Dr. Katz's argument that "no proximate cause existed because the inferior alveolar nerve injury could have occurred even if Dr. Katz had not been negligent and had performed a coronectomy instead." As he did before the trial court, plaintiff continues to argue that Model Civil Jury Charge 6.12 should have been given. This charge reads, in pertinent part

To find proximate cause, you must first find that [defendant]'s negligence was a cause of the accident/incident/event. If you find that [defendant] is not a cause of the accident/incident/event, then you must find no proximate cause.

Second, you must find that [defendant]'s negligence was a substantial factor that singly, or in combination with other causes, brought about the accident/incident/event or injury/loss/harm claimed by [plaintiff]. By substantial, it is meant that it was not a remote, trivial or inconsequential cause. The mere circumstance that there may also be another cause of . . . injury . . . does not mean that there cannot be a finding of proximate cause. Nor is it necessary for the negligence of [defendant] to be the sole cause of . . . [injury].

[Model Jury Charge (Civil), 6.12.]

Defendant argues the trial court correctly rejected plaintiff's application to charge the jury using Model Civil Jury Charge 6.12. Defendant points out that Model Charge 6.12 is designed to address "the more complex case where a defendant's . . . negligent conduct combines with other causes that lead to the plaintiff's injury (or harm)." Model Jury Charge (Civil), 6.12 (citing Camp v. Jiffy Lube No. 114, 309 N.J. Super. 305, 309 (App. Div. 1998)). Defendant also argues that plaintiff's so-called five key factors, as testified to and outlined by Dr. Marged, are not "preexisting conditions" warranting a "concurrent cause" instruction.

As the Supreme Court has defined the term, a "preexist[ing] condition . . . is one that has become sufficiently associated with a plaintiff prior to the defendant's negligent conduct so that it becomes a factor that affects the value of the plaintiff's interest destroyed by the defendant." Anderson v. Picciotti, 144 N.J. 195, 211 (1996). As the Court explained in the seminal case of Scafidi v. Seiler, 119 N.J. 93 (1990), when the plaintiff's injury can be traced to a single cause, the standard proximate cause instruction is appropriate. Id. at 101. "The language of the standard charge assumes that the defendant's negligence began a chain of events leading to the plaintiff's injury." Id. at 102.

Conversely, "in cases in which the defendant's negligence combines with a preexistent condition to cause an injury, the standard charge on proximate cause could confuse or mislead a jury." Ibid. (first emphasis added). Thus, the Court in Scafidi articulated a two-pronged jury instruction for the latter types of cases: (1) whether, as a matter of reasonable medical probability, defendant's negligence increased the risk of harm from the preexisting condition; and, if yes, (2) whether this negligence was a substantial factor contributing to the plaintiff's injury. Id. at 108-09.

In Tindal v. Smith, 299 N.J. Super. 123 (App. Div. 1997), we held that a Scafidi instruction is inappropriate when the preexisting condition cannot lead to the injury without the defendant's negligence. Id. at 135. The plaintiff in Tindal had a preexisting condition, Raynaud's syndrome, which after a foot surgery led to a chronic pain condition. Id. at 128. Because Raynaud's syndrome could not have progressed into the pain condition without the surgery, we held that a Scafidi instruction should not have been given. Id. at 135. Similarly here, plaintiff's age and condition could not, in itself, have led to an inferior alveolar nerve injury.

Risks of surgery are also not considered preexisting conditions warranting a Scafidi instruction. Holdsworth v. Galler, 345 N.J. Super. 294, 303 (App. Div. 2001). To the extent plaintiff argues that the risk of inferior alveolar nerve injury was a preexisting condition, his request for a "Scafidi like" instruction was correctly denied by the trial judge. Although plaintiff emphasized in his reply brief that he only requested the trial court to charge the jury using Model Civil Jury Charge 6.12, not to give a Scafidi instruction, for purposes of this appeal, this is a distinction without a difference. Plaintiff argues that the "concurrent cause" is the existence of preexisting conditions, which was is squarely addressed in Scafidi, supra, 119 N.J. at 102.

We cannot conclude our analysis without noting and addressing the Supreme Court's recent decision in Komlodi v. Picciano, 217 N.J. 387 (2014). In Komlodi, a family-care physician prescribed a powerful pain reliever, called a Duragesic patch, to treat a patient who suffered from chronic back pain. Id. at 393. The Duragesic patch is designed to be applied to the outer skin of the patient, and releases the drug fentanyl over a seventy-two hour period. Ibid. It has the potency of eighty Percocet tablets. Id. at 393-94.

The defendant in Komlodi prescribed this powerful medication fully aware that the plaintiff had a history of alcoholism, had a history of abusing prescription pain medication, and suffered from depression. Id. at 395. The cause of action arose when the plaintiff intentionally misused the Duragesic patch by tearing it open and ingesting its contents. Ibid. The plaintiff went immediately into respiratory and cardiac distress, "causing a lack of oxygen to [her] brain." Id. at 401. This caused irreparable and "permanent brain injury with physical deficits; severe cognitive, behavioral, and psychological impairments; and memory loss." Ibid.

The plaintiff in Komlodi alleged the defendant breached the relevant duty of care "by failing to protect a patient with a history of alcohol and drug abuse from self-injury." Id. at 394. The jury found the defendant deviated from the standard of care by prescribing the Duragesic patch to the plaintiff. Id. at 404. On the question of proximate cause, the trial court gave the jury a Scafidi charge, despite the fact that the case "did not involve the ineluctable progression of a disease on its own." Id. at 394. The trial court also failed to identify "in its jury charge the preexisting condition or [relate] the facts to the law as required by the Model Jury Charge." Ibid.

Because the patient caused the ultimate harm through her own conduct, "whether volitional or not . . . the [trial] court also charged the jury on superseding/intervening causation and avoidable consequences." Ibid. The jury found the defendant's deviation was not a proximate cause of her injuries. Id. at 404.

The case came before the Supreme Court after a split appellate panel overturned the jury's verdict and remanded for a new trial, holding that the trial court erred in giving a Scafidi charge, failing to identify the nature of the preexisting condition, "or explain the proofs and parties' arguments in relation to the law." Id. at 394. The majority on the appellate panel also held that the trial court erred when it gave "a superseding/intervening cause charge because the general charge on foreseeability was sufficient." Ibid. Finally, the panel noted "that the court had mistakenly included the concept of 'but for' causation in a case involving concurrent causes." Id. at 395.

The Supreme Court agreed in part and disagreed in part with the Appellate Division's holding. Ibid. With respect to the Scafidi charge, the Court agreed the trial court erred in instructing the jury on the legal principles governing a case involving preexisting conditions. Ibid. Writing for a unanimous Court in Komlodi, Justice Albin explained

This was not the traditional lost-chance-of-recovery case. The Scafidi charge, moreover, was given for a purpose not intended by our preexisting-condition jurisprudence. Indeed, the defense -- as was made clear in summation -- was based on superseding/intervening causation and avoidable consequences, not preexisting condition. We also agree with the panel majority that, throughout the charge, the trial court failed to explain the complex concepts of causation in relation to the proofs and legal theories advanced by the parties.
 
We part ways with the panel majority's conclusion that the charge on superseding/intervening causation was unnecessary in light of the general charge on foreseeability. To the contrary, the superseding/intervening causation charge, if properly given, had the capacity to focus the jury's attention on the differences between the parties' contentions. Last, the "but for" causation reference apparently was an inadvertent mistake to which no objection was made by either party.

[Ibid.]

As this makes clear, the principal and overriding issue in Komlodi concerned the trial court's misapplication of the Scafidi charge. The Court was equally concerned that the jury receive proper, fact-sensitive instructions on the law, especially instructions explaining the concepts of superseding/intervening causation and avoidable consequences.

Given the clarity of this holding to the tragic facts in Komlodi, we are satisfied it bears no direct application to the appeal we now decide. We are nevertheless compelled to acknowledge and address the following comments Justice Albin made concerning the two forms of causation known as "but for" and "substantial factor"

These two forms of causation -- "but for" and "substantial factor" -- are mutually exclusive. A "but for" charge is appropriate when there is only one potential cause of the injury or harm. See Conklin v. Hannoch Weisman, P.C., 145 N.J. 395, 417 (1996) ("In the routine tort case, 'the law requires proof that the result complained of probably would not have occurred "but for" the negligent conduct of the defendant.'" (citation omitted)). In contrast, the "substantial factor" test is given when there are concurrent causes potentially capable of producing the harm or injury. Id. at 419-20. Thus, "a tortfeasor will be held answerable if its 'negligent conduct was a substantial factor in bringing about the injuries,' even where there are 'other intervening causes which were foreseeable or were normal incidents of the risk created.'" Brown v. United States Stove Co., 98 N.J. 155, 171 (1984) (quoting Rappaport v. Nichols, 31 N.J. 188, 203 (1959)). A substantial factor is one that is "not a remote, trivial or inconsequential cause." Model Jury Charge (Civil) 6.13.

[Komlodi, supra, 217 N.J. at 422-23.]

We do not infer from this discussion an absolute injunction against the approach adopted by the trial court here. Plaintiff's expert opined that a coronectomy is a procedure used at times to treat impacted wisdom teeth "to avoid injury to the nerve." Plaintiff's counsel stressed to the jury that Dr. Katz deviated from the standard of care by opting to extract tooth #17 instead of opting for a coronectomy. The jury accepted plaintiff's argument as to negligence.

On the question of proximate causation, the five key factors plaintiff's counsel stressed in this appeal were also available to the jury to determine whether Dr. Katz's deviation was a proximate cause of the nerve injury. In our view, the trial judge correctly included language in his instructions on proximate cause directing the jury to determine, in light of the five key factors as well as defense counsel's expert testimony, whether Dr. Katz's negligent conduct was a substantial factor in bringing about the resulting nerve injury. Using Model Civil Jury Charge 6.12 without any alterations, as plaintiff argues here, would have produced an unjust result because it would have left the jury without judicial guidance on how to consider this important evidence.

Even if the judge erred, which was not the case, any error was harmless. "[A] reviewing court must consider the [jury] charge as a whole to determine whether the charge was correct[,]" and when a party objects, the "reviewing court should reverse on the basis of that challenged error unless the error is harmless." Toto v. Ensaur, 196 N.J. 134, 144 (2008). An error is harmful if it is "clearly capable of producing an unjust result." R. 2:10-2. Here, the court instructed the jury on "but for" causation, which as we previously noted, was the appropriate charge. The judge's mention of "substantial factor" merely provided guidance to the jury that Dr. Katz's negligence was not "remote, trivial, or inconsequential." This clarification, within the context of the entire charge, was insufficient to produce an unjust result.

Under these circumstances, we discern no legal basis to interfere with the jury's verdict.

Affirmed.

1 The quotation marks indicate this was taken from Dr. Marged's testimony before the jury during direct examination. To rebut Dr. Marged's opinion testimony, defense counsel called Dr. Katz in his capacity as the treating dentist and oral surgeon specialist. Defendants called Dr. Norman Betts, an oral and maxillofacial surgeon, as their expert witness. Although we have only described the details of plaintiff's expert's testimony, we note that the question of Dr. Katz's professional negligence was hotly contested at trial. However, because Dr. Katz prevailed at trial, he does not have standing to appeal any aspect of the jury's findings. This appeal is limited to determining the legal propriety of the trial judge's jury instructions on proximate cause. This is the only issue raised by plaintiff as the party who did not prevail at trial.