Verdicts

The eight-year-old case was lodged by Judy Komlodi on behalf of her disabled daughter, Michelle, who was being treated by Dr. Anne Picciano at JFK Medical Center in Edison, NJ, for chronic back pain that began around the time she stopped using heroin, according to the opinion. Michelle Komlodi, then 31, suffered from anxiety and depression, had a well-known history of substance abuse, and admitted that she was self-treating with alcohol, prescription drugs and even Duragesic patches ' the same patches Picciano would later prescribe for her. Komlodi told Picciano she obtained the prescription drugs and patches illegally from others, the opinion said.

Picciano directed Komlodi to seek therapy at JFK's Behavior Health Center, and in the meantime prescribed an antidepressant. Komlodi missed and rescheduled the July 2004 therapy session, and continued to complain of severe back pain. Picciano ' who later testified that she feared Komlodi's Hepatitis C, combined with consumption of 10 drinks or more per day, would ruin her liver ' prescribed Duragesic patches as a way to stop the self-treating, and warned Komlodi that she could not drink or take other substances at the same time, according to the opinion. The 72-hour patches contain a gel form of fentanyl, an opioid painkiller, and have the potency of 80 Percocet tablets.

Komlodi didn't immediately fill the prescription. A week later, in late July 2004, she was brought to JFK Medical Center with a blood alcohol content of 0.36, more than four times the legal limit for driving, and cocaine in her blood. Picciano didn't cancel the prescription and didn't note the alcohol abuse in Komlodi's medical chart, according to the opinion. Days later, Komlodi filled the prescription, getting approval from a doctor in Picciano's practice group.

After leaving the pharmacy, Michelle and Judy Komlodi stopped at a doctor's office for an appointment Judy Komlodi made, and Michelle Komlodi waited in the waiting room. Judy Komlodi last saw Michelle Komlodi attempting to open the Duragesic package with her teeth and told her to wait until they got home. Michelle Komlodi later was found unconscious, not breathing and without a pulse, with a patch wadded in her mouth. Having overdosed on fentanyl, she was resuscitated, but sustained brain damage leading to cognitive and behavioral impairments, and now is in assisted living, the opinion said.

In her medical malpractice suit, Judy Komlodi claimed that Picciano deviated from the standard of care by prescribing the patches to someone with addiction issues. Picciano contended that the patch was the best of only bad options, given Michelle Komlodi's condition and tendencies, and oral consumption of painkilling patches at the time was not a well-known issue.

At the close of trial, Middlesex County Superior Court Judge Phillip Paley, over the plaintiffs' objections, instructed the jury on a pre-existing condition based on Scafidi v. Seiler, 119 N.J. 93 (1990). The jury was directed to consider whether prescription of the patch increased the risk of harm to Michelle Komlodi, and whether it was a substantial factor in the injury. The panel, finding that Picciano deviated from the standard of care, answered the first question in the affirmative but decided that the increased risk didn't cause the injury ' producing a judgment in favor of Picciano.

A divided three-judge appellate panel reversed, with the majority finding that the jury was erroneously charged.

Picciano appealed as of right, given the 2-1 split. Judy Komlodi argued, among other points, that Scafidi was inapplicable because that case applies only to pre-existing conditions for which the physician is treating the patient, while Picciano was treating Michelle Komlodi for back pain, not substance abuse.

The Supreme Court agreed with the plaintiff, holding that the Scafidi charge shouldn't have been given ' especially since the jury was instructed on superseding/intervening causes and avoidable consequences. The court called it significant that Michelle Komlodi's ingestion of the patch occurred after Picciano's alleged deviation. “In the typical Scafidi case, the plaintiff seeks treatment for a pre-existing condition, and the physician … either fails to diagnose or improperly treats the condition,” Albin wrote. “Here, it is Michelle's failure to properly use the Duragesic patch after Dr. Picciano's alleged negligence … that is at issue,” he continued. The Scafidi charge “was used to allocate fault, not just damages,” “served as a substitute for the comparative-fault charge” and “became blurred with the charge on avoidable consequences and superseding/intervening causation,” Albin said. The charge also was defective, because the nature of Komlodi's condition wasn't made clear, Albin added.

The superseding/intervening causation and avoidable consequences charges also weren't specific enough, though they were proper and should be used on remand, the court said.

The plaintiffs' counsel, John Collins of Bongiovanni, Collins & Warden in Denville, NJ, said: “If drug addiction had been characterized as a pre-existing condition … you would then apply Scafidi to every pre-existing condition … whether the doctor's treating it or not.” That interpretation would serve to block a plaintiff's recovery anytime he or she went to the doctor with an unrelated, existing malady, Collins added. “With that kind of analysis, the plaintiffs would have a terrible hurdle to overcome.”

Picciano's counsel, Gary Riveles of Dughi, Hewit & Domalewski in Cranford, NJ, said the case law surrounding Scafidi evolved over the course of this case. “I'm just happy to have some clarity going forward.”

The plaintiffs have a separate suit pending against a JFK emergency room physician and the hospital, which likely will be consolidated with this case for trial, according to both lawyers.

“Obviously we will have to tailor the jury charges … a little more this time,” Riveles said.

The New Jersey Association for Justice, the state's principal plaintiff's bar group, joined as amici and urged the court to reject the Scafidi charge in this context. ' David Gialanella , New Jersey Law Journal

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Faulty Jury Instruction Results in New Trial in Drug Patch Case

A patient who suffered a severe brain injury after ripping open a time-release pain-killing patch and ingesting all the medicine at once will get another trial against the doctor who prescribed her patch, now that the New Jersey Supreme Court has ruled her prior substance abuse shouldn't have been considered by the jury. The trial judge wrongly allowed jurors to consider the patient's long history of drug and alcohol dependence as a pre-existing condition in finding no cause of action, the court said, remanding for a new trial in a case watched closely by the medical malpractice bar. Komlodi v. Picciano, 2014 N.J. LEXIS 485 (N.J., 5/20/14).

“Our courts must explain how the legal principles apply to the fact and the parties' competing arguments in a charge that is accessible and comprehensible to citizens not trained in the law,” Justice Barry Albin wrote for the unanimous court in overturning the defense verdict. “This is not an easy undertaking, but it is a necessary one.”

The eight-year-old case was lodged by Judy Komlodi on behalf of her disabled daughter, Michelle, who was being treated by Dr. Anne Picciano at JFK Medical Center in Edison, NJ, for chronic back pain that began around the time she stopped using heroin, according to the opinion. Michelle Komlodi, then 31, suffered from anxiety and depression, had a well-known history of substance abuse, and admitted that she was self-treating with alcohol, prescription drugs and even Duragesic patches ' the same patches Picciano would later prescribe for her. Komlodi told Picciano she obtained the prescription drugs and patches illegally from others, the opinion said.

Picciano directed Komlodi to seek therapy at JFK's Behavior Health Center, and in the meantime prescribed an antidepressant. Komlodi missed and rescheduled the July 2004 therapy session, and continued to complain of severe back pain. Picciano ' who later testified that she feared Komlodi's Hepatitis C, combined with consumption of 10 drinks or more per day, would ruin her liver ' prescribed Duragesic patches as a way to stop the self-treating, and warned Komlodi that she could not drink or take other substances at the same time, according to the opinion. The 72-hour patches contain a gel form of fentanyl, an opioid painkiller, and have the potency of 80 Percocet tablets.

Komlodi didn't immediately fill the prescription. A week later, in late July 2004, she was brought to JFK Medical Center with a blood alcohol content of 0.36, more than four times the legal limit for driving, and cocaine in her blood. Picciano didn't cancel the prescription and didn't note the alcohol abuse in Komlodi's medical chart, according to the opinion. Days later, Komlodi filled the prescription, getting approval from a doctor in Picciano's practice group.

After leaving the pharmacy, Michelle and Judy Komlodi stopped at a doctor's office for an appointment Judy Komlodi made, and Michelle Komlodi waited in the waiting room. Judy Komlodi last saw Michelle Komlodi attempting to open the Duragesic package with her teeth and told her to wait until they got home. Michelle Komlodi later was found unconscious, not breathing and without a pulse, with a patch wadded in her mouth. Having overdosed on fentanyl, she was resuscitated, but sustained brain damage leading to cognitive and behavioral impairments, and now is in assisted living, the opinion said.

In her medical malpractice suit, Judy Komlodi claimed that Picciano deviated from the standard of care by prescribing the patches to someone with addiction issues. Picciano contended that the patch was the best of only bad options, given Michelle Komlodi's condition and tendencies, and oral consumption of painkilling patches at the time was not a well-known issue.

At the close of trial, Middlesex County Superior Court Judge Phillip Paley, over the plaintiffs' objections, instructed the jury on a pre-existing condition based on Scafidi v. Seiler , 119 N.J. 93 (1990). The jury was directed to consider whether prescription of the patch increased the risk of harm to Michelle Komlodi, and whether it was a substantial factor in the injury. The panel, finding that Picciano deviated from the standard of care, answered the first question in the affirmative but decided that the increased risk didn't cause the injury ' producing a judgment in favor of Picciano.

A divided three-judge appellate panel reversed, with the majority finding that the jury was erroneously charged.

Picciano appealed as of right, given the 2-1 split. Judy Komlodi argued, among other points, that Scafidi was inapplicable because that case applies only to pre-existing conditions for which the physician is treating the patient, while Picciano was treating Michelle Komlodi for back pain, not substance abuse.

The Supreme Court agreed with the plaintiff, holding that the Scafidi charge shouldn't have been given ' especially since the jury was instructed on superseding/intervening causes and avoidable consequences. The court called it significant that Michelle Komlodi's ingestion of the patch occurred after Picciano's alleged deviation. “In the typical Scafidi case, the plaintiff seeks treatment for a pre-existing condition, and the physician … either fails to diagnose or improperly treats the condition,” Albin wrote. “Here, it is Michelle's failure to properly use the Duragesic patch after Dr. Picciano's alleged negligence … that is at issue,” he continued. The Scafidi charge “was used to allocate fault, not just damages,” “served as a substitute for the comparative-fault charge” and “became blurred with the charge on avoidable consequences and superseding/intervening causation,” Albin said. The charge also was defective, because the nature of Komlodi's condition wasn't made clear, Albin added.

The superseding/intervening causation and avoidable consequences charges also weren't specific enough, though they were proper and should be used on remand, the court said.

The plaintiffs' counsel, John Collins of Bongiovanni, Collins & Warden in Denville, NJ, said: “If drug addiction had been characterized as a pre-existing condition … you would then apply Scafidi to every pre-existing condition … whether the doctor's treating it or not.” That interpretation would serve to block a plaintiff's recovery anytime he or she went to the doctor with an unrelated, existing malady, Collins added. “With that kind of analysis, the plaintiffs would have a terrible hurdle to overcome.”

Picciano's counsel, Gary Riveles of Dughi, Hewit & Domalewski in Cranford, NJ, said the case law surrounding Scafidi evolved over the course of this case. “I'm just happy to have some clarity going forward.”

The plaintiffs have a separate suit pending against a JFK emergency room physician and the hospital, which likely will be consolidated with this case for trial, according to both lawyers.

“Obviously we will have to tailor the jury charges … a little more this time,” Riveles said.

The New Jersey Association for Justice, the state's principal plaintiff's bar group, joined as amici and urged the court to reject the Scafidi charge in this context. ' David Gialanella , New Jersey Law Journal

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