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Prescribing High Potency Medication to a Known Drug Abuser: Is The Doctor Liable for Resulting Injuries?

September 1, 2014

By Julia A. Klubenspies, Esq.*

Key Points:

  • Was the “but for” proximate cause charge appropriate when multiple causes of the injury were possible?
  • Was such a charge plain error by the trial judge?


I reported to you the December 2013 issue of Defense Digest that the New Jersey Supreme Court heard oral argument in October 2013 in a case involving a patient with a known drug-abuse history, who orally ingested medication from a prescription high-potency skin patch, ultimately leading to anoxic brain injury. Since then, the Supreme Court has issued its opinion. Therefore, I thought it timely to provide this update to you.

The question before the Supreme Court was whether the trial court erred in instructing the jury to consider whether the patient’s drug addiction and alcohol abuse were pre-existing conditions that proximately caused the injuries she suffered when she orally ingested pain medication contained in patches prescribed for external application to the skin. The issue at trial was whether the prescribing physician was liable for the resulting injuries.

As I had previously reported in Komlodi v. Picciano, 2012 N.J.Super. Unpub. LEXIS 1498 (App. Div. June 26, 2012), Dr. Picciano prescribed Fentanyl skin patches to help alleviate lower back pain suffered by the (incapacitated) plaintiff, Michelle Komlodi, age 31. Dr. Picciano had treated the plaintiff for many years as a primary care physician and was aware of her patient’s long-term history of substance abuse, both with alcohol and drugs. Dr. Picciano testified that she believed her patient “really had back pain” and was not drug seeking. Dr. Picciano decided to treat her patient’s back pain temporarily, knowing that her patient had an appointment at a behavioral health clinic shortly thereafter.

On August 2, 2004, while drinking heavily, the plaintiff ripped open a patch with her teeth and swallowed the medication. This resulted in suppressed respiratory function and anoxic brain injury.

The plaintiff’s primary liability theory was that Dr. Picciano was negligent in prescribing the patch since, in view of the plaintiff’s history of drug and alcohol abuse, it was foreseeable that she would misuse the patch by deliberately applying the gel to her mouth or gums, or use the patch while consuming alcohol. At trial, the jury was given a Scafidi charge to consider prior alcohol abuse as a pre-existing medical condition, as well as an intervening cause charge. The jury determined that the plaintiff had proven that Dr. Picciano deviated from accepted standards of family practice during her treatment of the plaintiff’s daughter, Michelle Komlodi, and that Dr. Picciano’s deviation increased the risk of harm posed by Michelle’s pre-existing condition. However, the jury also determined that the plaintiff failed to prove that the increased risk was a substantial factor in producing the ultimate harm or injury suffered by Michelle. Thus, the jury returned with a verdict in favor of Dr. Picciano.

The Appellate Division reversed and remanded for a new trial. On appeal, the plaintiff had contended that the Scafidi charge was inappropriate, as the defendant did not prove that a pre-existing disease or condition contributed to the plaintiff’s injury. The plaintiff further contended that the judge improperly gave the “but for” proximate cause charge. The court stated:

Here, the evidence did not clearly establish a Scafidi case, the jury charge included both “but for” and pre-existing condition/increased risk instructions, and the charge barely mentioned the facts and theories of the parties. Those errors require that the case be remanded for a new trial….In the case before us, plaintiff expressly objected during the charge conference to the court giving a Scafidi charge. The application of the Scafidi causation standard was far from clear. Defendants did not specifically identify Michelle’s pre-existing condition as drug-seeking behavior, dependency on alcohol, dependency on drugs, or dependency generally. In short, defendants did not identify “the pre-existing disease and its normal consequences.” Having failed to do so, defendants were not entitled to a Scafidi charge.

The Appellate Division also found that the trial judge did not properly identify the claimed pre-existing condition to guide the jury. Instead, in the jury charge, the trial judge merely referred to the plaintiff’s “medical condition” and “problems” without reference to any defense proofs or theories This factual issue made an intervening cause charge improper if the patient’s biting the patch was a foreseeable action in view of her medical and mental history.

The appellate panel had one dissenting justice, which permitted this case to be heard by the Supreme Court as of right. On May 20, 2014, the New Jersey Supreme Court issued a unanimous decision. The decision of the Appellate Court was affirmed and modified. The no-cause at the trial level was vacated, and the case was remanded. See, Komlodi v. Picciano, 89 A.3d 1234, 1255 (N.J. 2014).

There is no question that the jury received a very complex and somewhat convoluted charge, one that even many lawyers would find difficult to follow. The Supreme Court agreed with the Appellate Division that the Scafidi charge was improperly given that the trial judge never identified for the jury what the claimed “pre-existing” condition was, although the jury was told to consider whether the prescription of the Fentanyl patch increased the risk of harm to the patient and was a substantial factor in causing the patient’s injuries. Further, the harm that was caused was not due to any progressive disease or disorder, but rather by the patient’s own conduct after the Fentanyl patch was prescribed. They further agreed that the superseding/intervening cause charge was given in error in that the standard charge of “forseeability” was a sufficient charge in this factual scenario. Moreover, the Supreme Court found that the trial judge improperly failed to mold the law to the facts of this case, confusing the jury.

*Julia is a shareholder in our Roseland, New Jersey office who can be reached at 973.618.4170 or


Defense Digest, Vol. 20, No. 3, September 2014

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

Affiliated Attorney

Julia A. Klubenspies
(973) 618-4170


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