Even where the defense is mostly not negligent, plaintiff can walk away with satisfaction if the ultimate harm can be apportioned. Mr. Koseoglu became ill in September, 2007 and he complained that he had a fever and felt tired. Three days later, his exhaustion persisted and his temperature reached 103.6 degrees. He also noticed white spots on his throat and felt weak without an appetite. His wife called Dr. Wry, and left a voicemail message explaining Mr. Koseoglu’s symptoms. A secretary at the doctor’s office, told Ms. Koseoglu that she spoke with Dr. Wry and was advised that an office visit was unnecessary, explaining that “because he had similar symptoms back in January . . . [he was going to be] prescribe[d] antibiotics. . . .”
An authorization for the prescription for Augmentin was recorded on Mr. Koseoglu’s chart maintained by Dr. Wry’s office, but there were no records of his wife’s call or of his symptoms. A few hours after Mr. Koseoglu fell asleep that evening, his wife noticed that his feet and lips were “blotchy and blue” and that he was not responsive. Ms. Koseoglu called 911, but by the time emergency personnel arrived it was too late and he was pronounced dead. The cause of death was cardiac arrhythmia due to inflammation of the heart muscle.
Ms. Koseoglu subsequently instituted suit against Dr. Wry on behalf of her deceased husband’s estate. The plaintiff argued that Dr. Wry’s negligence was the proximate cause to her husband’s death. Dr. Wry argued that he was not negligent and contrary to what plaintiff claimed, his office told Ms. Koseoglu that her husband could come in for a visit.
A battle of the experts ensued and at the close of evidence, the jury instructions were provided allowing the jury to weigh the probative value of the evidence and the credibility of the expert witnesses’ and their statements. The judge advised, “[I]f you find that defendant has deviated from the standard of care resulting in injury or damage to plaintiff, then you should find defendant negligent and return a verdict for plaintiff.” The instructions also detailed the respective burdens of proof to guide the jury. The judge instructed the jury that:
(1) The plaintiff must prove that the defendant’s negligence increased the risk of harm posed by plaintiff’s preexisting condition;
(2) The plaintiff must prove that the increased risk was a substantial factor in producing the ultimate harm (in this case, death). If the negligence was only remotely or insignificantly related to the ultimate harm, then the negligence does not constitute a substantial factor. “However, the defendant’s negligence . . . need not be the only cause, or even a primary cause, of his death for the negligence to be a substantial factor in producing the ultimate harm. Whether the increased risk was a substantial factor is to be reflected in the apportionment of damages between the increased risk and the pre-existing condition. . . .”
Moreover, in cases where the defendant’s negligence accelerated or worsened the plaintiff’s pre-existing condition, the defendant is responsible for all of plaintiff’s injuries, unless the defendant is able to reasonably apportion the damages.
The defendant has the burden to prove what percentage of plaintiff’s injuries would have occurred if the defendant claims that all or part of plaintiff’s injuries would have occurred anyway if the defendant was not negligent. “If the injuries can be so apportioned, then the defendant is responsible only for the amount of ultimate harm caused by the negligence.”
The jury returned a verdict in favor of plaintiff, finding that defendant’s negligence caused 20% of the ultimate harm to Mr. Koseoglu. The jury awarded the Estate one million dollars in damage to be divided between the plaintiff and her children.
Both sides appealed the verdict when their post-trial motions to set the verdict aside were denied in Koseoglu v. Wry, Superior Court of New Jersey, Appellate Division, Docket No.: A-1008-11T4, the Appellate Division upheld the verdict.