## Facts

- Eleanor Ostrowski, an insulin-dependent diabetic with hypertension and peripheral vascular disease, was obese and a heavy smoker.
- She sought treatment from Dr. Lynn M. Azzara, a podiatrist, for a sore left big toe and calluses and reported symptoms consistent with circulatory problems.
- Azzara’s testing indicated very high blood sugar and some peripheral vascular disease.
- Azzara diagnosed a fungal nail condition and performed a toenail removal procedure on the left great toe.
- The toe did not heal properly and became painful and discolored, progressing toward gangrene due to inadequate blood flow.
- Ostrowski later underwent major vascular procedures (including bypass surgeries and a vein transplant) to restore circulation and prevent limb loss.
- Evidence showed she continued smoking despite medical warnings, but no medical expert testified that post-treatment smoking or noncompliance caused the need for bypass surgery six weeks after the procedure.
- The jury found Azzara negligent and found the procedure was a proximate cause of the bypass surgery, but denied recovery after attributing greater “fault” to Ostrowski based largely on her health habits.

## Issues

1. Whether a medical malpractice plaintiff’s pre-treatment health habits (such as smoking and poor diabetic control) may be treated as comparative negligence that reduces or bars recovery.
2. How to distinguish comparative negligence from avoidable consequences (mitigation of damages) when a patient’s conduct or condition affects the severity of harm.
3. How the “take the plaintiff as found” principle and the doctrine of aggravation of preexisting conditions apply when malpractice worsens an existing disease process.
4. Whether jury instructions improperly allowed the jury to convert pre-treatment health status and habits into comparative fault.

## Decision

- The New Jersey Supreme Court reversed and remanded for a new trial.
- The Court held that a plaintiff’s pre-treatment health habits and chronic conditions are not comparative negligence for purposes of apportioning fault for negligent medical treatment.
- The Court ruled that such evidence may be relevant to the patient’s baseline condition, proximate cause, and the extent of aggravation attributable to malpractice.
- The Court recognized that post-treatment conduct may limit damages under avoidable-consequences principles only if supported by competent proof of causation.
- The Court found the jury instructions conflated comparative negligence with mitigation, permitting an improper no-recovery outcome despite findings of negligence and proximate cause.

## Legal Principles

- A health-care provider must treat the patient as presented; the defendant “takes the plaintiff as found,” including vulnerabilities created by disease and longstanding habits.
- Comparative negligence concerns a plaintiff’s responsibility for the occurrence of the injury-producing wrong and can bar or reduce recovery under a comparative-fault regime.
- Avoidable consequences addresses unreasonable post-wrong conduct and limits damages only to the extent the defendant proves the plaintiff’s post-treatment conduct caused additional harm.
- A defendant who aggravates a preexisting condition is liable only for the incremental harm proximately caused by the negligence, not for the underlying disease’s natural progression.
- Clear jury instructions must separate (a) baseline condition and susceptibility, (b) proximate cause and aggravation, and (c) mitigation based on proven post-treatment conduct, from comparative fault for the malpractice event.

## Conclusion

The court ordered a new trial because the jury was permitted to treat pre-treatment health habits as comparative negligence, improperly barring recovery despite findings that negligent podiatric treatment proximately caused additional harm; preexisting conditions inform causation and damages, and only proven post-treatment conduct can mitigate damages.


Ostrowski v. Azzara, 111 N.J. 429, 545 A.2d 148 (N.J. 1988)