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.

NOT FOR PUBLICATION WITHOUT THE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.
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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/crossappellants (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 Knight1appeals 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.
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A-4448-18T1

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 
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A-4448-18T1

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 
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A-4448-18T1

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.
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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 
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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. 
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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?
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A-4448-18T1

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.
10 A-4448-18T1

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 
11 A-4448-18T1

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 
12 A-4448-18T1

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 cause 

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].
13 A-4448-18T1

[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 casespecific 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 
14 A-4448-18T1

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. 
15 A-4448-18T1

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

resulting from his pre-existing condition.
16 A-4448-18T1

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."
17 A-4448-18T1

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).
18 A-4448-18T1

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 
19 A-4448-18T1

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.]
20 A-4448-18T1

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

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 defendantphysician, 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. 
22 A-4448-18T1

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 of 
23 A-4448-18T1

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 injury 
24 A-4448-18T1

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 
25 A-4448-18T1

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 preexisting 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 
26 A-4448-18T1

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 preexisting 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 
27 A-4448-18T1

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.
28 A-4448-18T1

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 
29 A-4448-18T1

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 
30 A-4448-18T1

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).
31 A-4448-18T1

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.
32 A-4448-18T1

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.