Jul 2, 2019

Appellate Division Holds No Proximate Cause as a Matter of Law in Case Alleging Negligent Prescription of Medication

In a case involving the death of a person struck by an automobile, the Appellate Division recently held that there was no proximate cause as a matter of law between the prescribing of medication to the negligent driver by the defendant doctor and the death of the plaintiff.  Vizzoni v. B.M.D., J.D., et al. – N.J. Super. – (App. Div. 2019).

In Vizzoni, Judith Schrope was killed when she was struck by an automobile driven by Dr. Stefan Lerner’s patient, B.M.D.  Plaintiff argued that Dr. Lerner’s negligent prescription of medication to the defendant driver was the proximate cause of the fatal crash.  The trial Court disagreed and the Appellate Division affirmed.

The Appellate Division noted that the scope of tort liability presents a question of law.  Foreseeability of the risk of harm is the foundational element in the determination of whether a duty exists.  New Jersey Courts have recognized a mental-health professional owes a duty to take reasonable steps to protect a readily identifiable victim put at risk by their patient.  McIntosh v. Milano, 168 N.J. Super. 466 (Law Div. 1979).

The McIntosh holding led to the enactment of N.J.S.A. 2A:62A-16 which immunizes licensed medical professionals from any civil liability for a patient’s violent act against another person or against themselves unless the practitioner has incurred a duty to warn and protect the potential victim.

The trial Court had relied on McIntosh to find that there was no duty.  However, the Appellate Division, while agreeing that the case should have been dismissed, held that the proper issue was one of proximate cause not duty of care.  The Court noted that the defendant doctor could only be held liable for the foreseeable consequences of his actions and while ordinarily the issue of proximate cause is to be determined by a jury, it may be removed from the factfinder in highly extraordinary cases.  The Appellate Division noted that there was no evidence that the driver was impaired or intoxicated at the time of the crash and, therefore, the defendant doctor could not be held liable for an injury unrelated to his conduct.