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Tobia v. Cooper Hosp. University Medical Center6/28/1994
Per Curiam
This appeal concerns a class of medical patients whose inability to care for themselves may require an extra measure of care by health-care professionals. The medical professions recognize the existence of such a duty in the case of certain patients whose infirmity, be it the product of age, substance abuse, or mental derangement, may pose a danger of either intentional or unintentional self-injury. The issue before us is how to relate that infirmity of the patient to the doctrine of contributory negligence.
In Cowan v. Doering, 111 N.J. 451, 545 A.2d 159 (1988), we held that a health-care professional could not assert contributory negligence as a defense to a suicidal patient's claim of neglect when the professional's duty included exercise of reasonable care to prevent the patient from committing self-damaging conduct. The central question in this appeal, then, is whether that principle of law applies to other categories of patients, such as the aged, incapacitated, or infirm. We hold that when a health-care professional's duty includes exercise of reasonable care to prevent such a patient from engaging in self-damaging conduct, the health-care professional may not assert contributory negligence as a defense to a claim arising from the patient's self-inflicted injuries. Were we to rule otherwise, the law of comparative negligence would significantly undermine and dilute the duty of care that the profession itself recognizes. The subsidiary issue in plaintiffs' appeal is whether trial-court error in submitting to the jury the issue of contributory negligence of an infirm patient in removing herself from the stretcher is rendered harmless by virtue of the jury's collateral finding of no negligence on the part of the treating professionals. We conclude that the confusion that may have been created in the minds of the jurors by the erroneous
contributory-negligence charge is so inextricably intertwined with the jury's deliberations on the duty of the health-care professionals that the verdict is irreparably tainted.
I
The case arises from plaintiff Giuditta Tobia's December 1987 admission to Cooper Hospital. (We shall refer only to her claims and not her husband's derivative claim.) Mrs. Tobia was eighty-five years old and was in urgent need of medical care. She was placed on a stretcher in the emergency room, and defendant Clifford Bernstein, who was then a fourth-year medical student, attended to her. (He is now a licensed physician. When we refer to him without his title, it is in the context of the incident and subsequent proceedings.) After Bernstein took a history of plaintiff's illness and while plaintiff was waiting to be taken to the X-ray area, plaintiff told Bernstein that she needed to use the bathroom.
The versions of the parties differ respecting exactly what happened next. Bernstein claims that plaintiff changed her mind and did not wish to use the bathroom. Because she seemed reasonably alert and competent, Bernstein left plaintiff sitting on the stretcher unattended. According to Mrs. Tobia, Bernstein lowered the stretcher's side rails and did not lock the wheels. Mrs. Tobia contends that she had to jump or slide to get off the stretcher, and that she fell to the floor in the course of doing so. She asserts that Bernstein was negligent in breaching Cooper Hospital's Emergency Room Policy and Safety Procedure No. 1, which specifies the following:
Any patient not being attended, or directly supervised or observed, either by a nurse or a doctor, shall be secured by hav
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