Scafidi v. Seiler

The Appellate Division held that the trial court committed reversible error by refusing to give the jury an Evers v. Dollinger charge, 225 N.J. Super. 576, 582, 543 A.2d 95 (1988), but sustained the trial courts refusal to impose on defendant the burden of proving that damages could be apportioned. Id. at 584, 543 A.2d 95. We granted certification, 114 N.J. 471, 555 A.2d 599 (1989), and now affirm the judgment of the Appellate Division. We hold, however, that any damages awarded to plaintiffs on retrial, assuming that defendants proofs include evidence that the infants premature birth and death might have occurred even if defendants treatment had been proper, should be apportioned to reflect the likelihood that the premature birth and death would have been avoided by proper treatment. Thus, plaintiffs damages will be limited to the value of the lost chance for recovery attributable to defendants negligence.