Tuesday, November 12, 2013

Ostrowski v. Azzara case brief

Ostrowski v. Azzara case brief summary
545 A.2d 148 (1988)

Appellant injured party challenged the judgment of the Superior Court, Appellate Division (New Jersey), which affirmed a judgment in favor of respondent doctor in appellant's malpractice action.


Appellant was a diabetic who was referred to respondent doctor to treat an infected toe. Respondent removed the toenail, and appellant developed complications which resulted in two by-pass operations. Appellant filed suit for malpractice. At trial, the jury found appellant 51 percent negligent, and the trial court entered judgment in favor of respondent. Appellant challenged the trial court's judgment, and the lower court affirmed. Appellant challenged the lower court's judgment. 


  • The court reversed and remanded the case for a new trial. 
  • The court held that comparative negligence applied only to the appellant's conduct up to the time of the surgery, and that any actions on the part of appellant after the surgery which contributed to her worsening condition were mitigation issues to be considered in calculating damages. 
  • The court held that the jury charge regarding comparative negligence failed to distinguish between pre and post-surgery conduct; therefore, the jury could have erroneously considered the post-surgery conduct in determining comparative fault.

The court reversed the lower courts' judgments and remanded the case for a new trial. The court held that the jury charge on comparative negligence was erroneous because it failed to distinguish between appellant's pre operation conduct and post-operation conduct. The court held that post-operation conduct should not have been considered in determining comparative fault, but only in determining mitigation of damages.

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