The Scafidi Charge – Two Minutes in the Penalty Box?

Not exactly.

It is generally conceded that proving proximate cause is the trickiest part of proving medical negligence. Ordinarily, plaintiffs in medical malpractice cases have the burden of proving negligence and proximate cause with respect to both negligence and damages. In some other cases, the traditional "but for" proximate cause standard is replaced with the more flexible "increased risk substantial factor" charge. The "increased risk substantial factor" standard provides a less onerous burden for establishing causation.

The problem is sorting out the elements of causation when there is a pre-existing medical condition. The typical situation is one in which a patient is on a downward course and defendant negligently fails to alter that course by delaying proper treatment.  Typically, in a Scafidi-type case, it is the plaintiff who will rely on the modified causation standard to diminish the chances of a no cause finding under the "but for" test of causation. Consequently, a plaintiff relying on the Scafidi causation standard generally has the burden of proving that defendant's negligence caused an increased risk of harm to plaintiff and that the increased risk was a substantial factor in causing the ultimate harm. Notwithstanding the fact that the Scafidi standard is less stringent than the "all or nothing but for" standard, it does not alter a plaintiff's burden of proving the case by a fair preponderance of the evidence.

In  Scafidi v. Seiler, 119 N.J. 93 (1990), the court established a two-part test for proving causation in cases where plaintiff's injuries are due in part to a pre-existing condition. The court must analyze the evidence to determine whether both parts are satisfied. First, the evidence must permit a jury to find that the defendant was negligent, and that the defendant's negligence increased plaintiff's risk of harm from an established pre-existing condition. If that is satisfied, then there are concurrent causes of the harm and the but-for causation standard may not be charged to a jury. If the first part is satisfied, then the jury will be instructed to apply the “substantial factor” standard of causation.

Although the Scafidi substantial factor causation standard was devised for the benefit of plaintiffs because it was the defendant who effectively deprived the plaintiff of a greater chance to survive or avoid deterioration, there are cases in which the defendant, not the plaintiff, seeks a Scafidi charge. If a case clearly falls within the parameters, then a plaintiff cannot avoid apportionment of damages under Scafidi because a plaintiff's recovery is "limited to the value of the lost chance of avoiding harm." But when it does not clearly appear that a Scafidi charge is required and a plaintiff resists such a charge, then a defendant has the burden of persuading the trial court that a Scafidi charge is appropriate.