Defense Digest

NEW JERSEY LIMITS APPLICATION OF THE DOCTRINE OF AVOIDABLE CONSEQUENCES IN MEDICAL MALPRACTICE ACTIONS

By John L. Slimm, Esq.*

The Doctrine of Avoidable Consequences provides that in instances in which a physician has committed an actionable wrong, the damages flowing from that wrong will be precluded to the extent that they could have been averted by an exercise of reasonable care by the injured party. In Geller v. Akawie, 358 N.J. Super. 437 (App. Div. 2003), New Jersey's Appellate Division held that the Doctrine of Avoidable Consequences can be distinguished from that of superseding causation. The Doctrine of Avoidable Consequences operates to reduce damages in proportion to the fault of the injured party, without extinguishing the liability of the initial tortfeasor. The Doctrine of Superseding Causation permits the initial tortfeasor's liability to be cut off as the result of superseding negligence that is sufficiently unrelated to the initial negligence, or if so unanticipated that the initial actor is relieved from liability.

The Doctrine of Avoidable Consequences has been applied in the medical malpractice context as a limitation on the damages recoverable by a plaintiff whose conduct, occurring after the commission of a negligent act by the physician, increases the risk of harm. In Ostroski v. Azzara, 111 N.J. 429 (1988), the court permitted the jury on re-trial to consider the plaintiff's continued smoking and poor control of his diabetic condition following allegedly negligent removal of the toenail as conduct that could serve to reduce the damages recoverable as a result of the eventual partial amputation of his leg. Also, in Lynch v. Scheininger, 162 N.J. 209 (2000), a claim for a child's disabilities and medical expenses could be reduced if the parents were aware at the conception of a known but unquantified risk that disability would ensue. In addition, in Bryant v. Colantone, 286 N.J. Super. 362 (App. Div. 1996), the failure by a dental patient to request post treatment antibiotics that he knew to be necessary as a result of consultations regarding a pre-existing heart murmur, or to consult his cardiologist regarding the lack of necessary medication, could reduce the patient's damages. In addition, in Flynn v. Sterns, 52 N.J. Super. 115 (App. Div. 1958), a child failed to continue stretching exercises recommended by the physician following his negligent surgical repair of a broken arm.

It can be seen, therefore, that the Doctrine of Avoidable Consequences can be used to enable reduction of damages in the proportion that the injured party's own conduct contributed to the total injury sustained. However, in Geller v. Akawie, the Appellate Division held that the Doctrine of Avoidable Consequences did not apply to a parent's wrongful birth action.

The Geller case was premised upon the absence of genetic counseling, and was founded on a woman's right to decide for herself whether to continue or terminate a pregnancy. The Appellate Division in Geller reasoned that this wrongful birth case resembled elements of one based on the Doctrine of Informed Consent since it was premised on the patient's right of self determination. The Appellate Division had strong reservations whether the Doctrine of Avoidable Consequences had applicability in any informed consent context, and found that it had no application in that type of case. The consequences of a physicians failure to inform could not be meaningfully avoided.

It is to be noted that the Appellate Division in Geller remanded the case for a re-trial on whether the physician fulfilled his duty, whether the plaintiffs failed to obtain prenatal testing as a result of their own conscious decision, and whether they possessed sufficient knowledge from other sources to permit them to make an informed choice as to whether to terminate a pregnancy, thereby breaking the causal connection with the physician's negligence and the outcome. Therefore, while the Doctrine of Avoidable Consequences is available as a defense in medical malpractice actions, it has its limits as noted by the Appellate Division in Geller.

Should you have any questions regarding this decision, please contact John Slimm of the firm's Cherry Hill office.

* Jack is a shareholder in our Cherry Hill, NJ office and can be reached at (856) 414-6021 or jslimm@mdwcg.com.