Weiss v. Goldfarb

713 A.2d 427, 154 N.J. 468, 1998 N.J. LEXIS 578

• Court: Supreme Court of New Jersey
• Decided: June 16, 1998
• Status: Published

Opinions

The opinion of the Court was delivered by

COLEMAN, J.

The issue raised in this medical malpractice case is whether a jury should receive an ultimate outcome instruction that, at the time of the alleged malpractice, the Charitable Immunity Act, N.J.SA. 2A:53A-8, limited a hospital’s liability to no more than $10,000. The trial court declined to give such an instruction. The Appellate Division in a published opinion concluded that the instruction should have been given. 295 N.J.Super. 212, 231-32, 684 A.2d 994 (1996). We granted St. Michael’s petition for certification, limited to the question of the ultimate outcome instruction. 150 N.J. 26, 695 A.2d 669 (1997).

We reverse and hold that an ultimate outcome instruction should not be given to a jury concerning the statutory limitations of a hospital’s liability.

I

On June 19,1989, Russell M. Wood was admitted to St. Joseph’s Medical Center (St. Joseph’s) in Paterson, New Jersey for treatment of heart disease and chronic renal failure. At the time, he was sixty-seven years old and suffered from long-term hypertension and various coronary and renal problems. Wood was diagnosed as suffering from non-sustained ventricular tachycardia, atrial fibrillation, and chronic kidney failure. An angiogram revealed some blockage of a coronary artery. He was placed on a heart monitor and began receiving dialysis treatments on a three-day-a-week schedule, remaining on the heart monitor during the treatments. Wood’s cardiologist recommended the performance of electro-physiologic cardiac studies. Because St. Joseph’s did not have the equipment needed to perform those studies, Wood was transferred to defendant St. Michael’s Medical Center (St. Michael’s) on Thursday, July 13,1989.

Upon Wood’s arrival at St. Michael’s, he was immediately admitted to the telemetry unit where he was connected to a cardiac monitor under continuous supervision. Wood missed his Friday, July 14, dialysis treatment, and his doctor arranged to have that treatment provided the next day. Wood was taken to the dialysis unit about noon that Saturday, July 15. He arrived unconnected to a cardiac monitor, notwithstanding that no order had been written in his chart discontinuing the monitor. Although the dialysis unit was equipped with a cardiac monitor, Wood was never connected to it.

During dialysis treatment on July 15, Wood’s vital signs remained normal from approximately 12:30 p.m. through 2:00 p.m. At 2:25 p.m., however, a nurse found Wood unresponsive with no blood pressure. Despite being successfully resuscitated, he sustained irreversible brain damage as a result of the loss of oxygen and remained in a coma until his death on August 28, 1989. Plaintiffs experts opined that had his heart been monitored during the dialysis treatment, the cardiac arrest could have been avoided altogether or counteracted in time to avoid brain damage.

Plaintiff instituted the present litigation against St. Michael’s, two dialysis nurses, two residents who had attended decedent in the telemetry unit, and all the attending doctors, Drs. Rubenstein, Goldfarb, Senft, Haddad, and Chenitz. Prior to trial, partial summary judgments were granted dismissing Dr. Chenitz and the two residents. Following the close of plaintiffs case, her claims against Dr. Goldfarb and the two dialysis nurses were dismissed pursuant to Rule 4:37-2(b). The case was submitted to the jury against St. Michael’s and Drs. Rubenstein, Senft, and Haddad. As noted previously, the trial court denied plaintiffs request to inform the jury that St. Michael’s liability was capped at $10,000.

The jury returned a verdict finding no cause of action against the doctors, but finding the hospital negligent. The jury awarded total damages of $150,000. The trial court molded the verdict and entered judgment for $10,000 based on the Charitable Immunity Act. Plaintiffs subsequent motion for a new trial was denied. She appealed several court rulings, including the denial of her request to give an ultimate outcome charge to the jury.

The Appellate Division affirmed the partial summary judgments in favor of Drs. Chenitz and the two residents. 295 N.J.Super. at 220, 684 A.2d 994. It also affirmed the dismissal of the complaint against Dr. Goldfarb and one of the nurses. Id. at 221-22, 684 A.2d 994. The court reversed the dismissal of the claim against Nurse Forshage at the end of plaintiffs case. Id. at 227, 684 A.2d 994. It also reversed the jury’s verdict of no cause of action in favor of Dr. Haddad. Id. at 226-27, 684 A.2d 994. The court affirmed the judgment of liability against St. Michael’s and the amount of the damages award of $150,000. Id. at 233, 684 A.2d 994. The court determined that plaintiff was entitled to an ultimate outcome charge instructing the jury on the limitation on St. Michael’s liability. Id. at 232, 684 A.2d 994. It remanded the case for a new trial on liability only against Dr. Haddad and Nurse Forshage. Id. at 233, 684 A.2d 994. The retrial, however, would require apportionment of liability if either Dr. Haddad or Nurse Forshage was found liable. Therefore, the case against St. Michael’s was remanded as well for apportionment purposes. Id. at 228, 684 A.2d 994.

II

St. Michael’s argues that the Appellate Division’s decision impermissibly interferes with its legislatively created limited immunity under the Charitable Immunity Act. The hospital asserts that by ordering an ultimate outcome charge on the statutorily limited liability, the decision conflicts with the holding in Johnson v. Mountainside Hospital, 239 N.J.Super. 312, 571 A.2d 318 (App. Div.), certif. denied, 122 N.J. 188, 584 A.2d 248 (1990).

St. Michael’s maintains that an ultimate outcome charge is distinguishable from similar charges given in comparative negligence cases and the lost-chance line of cases following Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398 (1990), because the charge in the present case does more than merely advise the jury of the legal effect of its findings. St. Michael’s argues that in comparative negligence and Scafidi-type cases, the ultimate outcome charge guides a jury in its essential function of apportioning responsibility for the total injury involved. The hospital maintains that its legislatively mandated limitation on liability is irrelevant to the role of the jury as fact-finder.

Plaintiff maintains that Johnson, supra, was wrongly decided and is contrary to the holding of Roman v. Mitchell, 82 N.J. 336, 413 A.2d 322 (1980), that required an ultimate outcome charge in comparative negligence cases. Plaintiff expresses concern that in situations in which, as in this case, both the hospital and individuals employed by it are represented by the same attorney, that in the absence of an ultimate outcome instruction, an attorney will attempt to misguide the jury into finding liability against only the hospital because of the hospital’s statutorily limited liability.

Ill

-A-

The Charitable Immunity Act was enacted by the Legislature in response to Benton v. Y.M.C.A., 27 N.J. 67, 141 A.2d 298 (1958), Collopy v. Newark Eye & Ear Infirmary, 27 N.J. 29, 141 A.2d 276 (1958), and Dalton v. St. Luke’s Catholic Church, 27 N.J. 22, 141 A.2d 273 (1958), which overruled judicially declared immunity for certain charitable organizations. In 1959, subsequent to the Collopy trilogy of cases, the Legislature passed N.J.S.A. 2A:53A-8, which provides charitable immunity for nonprofit hospitals for negligence liability exceeding $10,000. The statute states:

[A]ny nonprofit corporation, society or association organized exclusively for hospital purposes shall be liable to respond in damages to such beneficiary who shall suffer damage from the negligence of such corporation, society or association or of its agents or servants to an amount not exceeding $10,000.00, together with interest and costs of suit, as the result of any 1 accident and to the extent to which such damage, together with interest and costs of suit, shall exceed the sum of $10,000.00 such nonprofit corporation, society or association organized exclusively for hospital purposes shall not be liable therefor.

[N.J.S.A 2A:53A-8.¹]

The constitutionality of the statute, which is not before us, was upheld in Edwards v. Our Lady of Lourdes Hospital, 217 N.J.Super. 448, 526 A.2d 242 (App.Div.1987). The Legislature expressed the purpose of the Charitable Immunity Act as follows:

This act shall be deemed to be remedial and shall be liberally construed so as to afford immunity to the said corporations, societies and associations from liability as provided herein in furtherance of the public policy for the protection of nonprofit corporations, societies and associations organized for religious, charitable, educational or hospital purposes.

[JV./.S.A 2A53A-10.]

In furtherance of that purpose, this Court has held that the Act must be liberally construed to provide immunity for the protection of nonprofit corporations organized for religious, charitable, educational, or hospital purposes. Schultz v. Roman Catholic Archdiocese of Newark, 95 N.J. 530, 537-38, 472 A.2d 531 (1984). New Jersey is in the small minority of jurisdictions that have either partially or wholly retained the doctrine of charitable immunity. See Janet Fairchild, Annotation, Tort Immunity of Nongovernmental Charities-Modem Status, 25 A.L.R.4th 517, 539-46 (1983); see, e.g., Williams v. Jefferson Hosp. Ass’n, 246 Ark. 1231, 442 S.W.2d 243 (1969); Purcell v. Mary Washington Hosp. Ass’n, 217 Va. 776, 232 S.E.2d 902 (1977).

Massachusetts has statutorily limited recovery against a charitable organization to $20,000. Mass. Gen. Laws ch. 231, § 85K (1985). Although the Massachusetts law is very similar to New Jersey’s, its case law does not directly address whether juries should be apprised of the limited liability of charitable entities. See, e.g., Harlow v. Chin, 405 Mass. 697, 545 N.E.2d 602, 612-13 (1989) (finding that although trial court did not make specific finding, it was on notice that hospital was charitable organization; trial court should have entered judgment against hospital limited by statutory cap). Similarly, other states have not addressed the issue.

The two federal cases relied on by the dissent do not support an ultimate outcome instruction. Post at 490-91, 713 A.2d at 439. Unlike the present ease, those cases required the jury to resolve factual issues concerning statutory damages.

In In re Aircrash in Bali, Indonesia, 871 F.2d 812 (9th Cir. 1989), relatives of Pam Am Airline passengers sought to recover more than the $75,000 limitation imposed by the Warsaw Convention (Convention). Id. at 814. To achieve that goal, plaintiffs sought to persuade a jury that the airline engaged in willful misconduct or that it failed to notify its passengers of the $75,000 Convention limitation. Id. at 814 n. 1. The damage limitation was placed before the jury in order for it to perform its role as fact-finder. Id. at 815. Vinieris v. Byzantine Maritime Corp., 731 F.2d 1061 (2d Cir.1984), involved a jury trial for civil penalties, pursuant to 46 U.S.C.A. § 596, based on a ship captain’s alleged failure to pay earned wages to a seaman. Id. at 1062. The Court of Appeals held that because the jury had to decide whether the captain violated the statute by acting arbitrarily, unreasonably or willfully, he should have been permitted to testify that he had personal knowledge of the substantial statutory penalties, thereby inferring that he would not have violated the statute. Id. at 1064. Here, too, the statutory damages were placed before the jury because that information was essential to the jury’s fact-finding role. In the present ease, the statutory damages are irrelevant to the jury’s role.

-B-

Plaintiffs claims against the multiple defendants that each was negligent and that such negligence proximately contributed to the death of the decedent, required the jury to apportion the total negligence between all defendants found liable. Such apportionment implicates the comparative negligence statute, N.J.S.A. 2A:15-5.1 to -5.3. Plaintiffs request for an ultimate outcome instruction concerning the hospital’s limited liability was based on the ultimate outcome charge used in comparative negligence and lost-chance cases.

This Court first allowed an ultimate outcome instruction in a comparative negligence context in Roman v. Mitchell, supra, 82 N.J. at 345, 413 A.2d 322. There, the Court concluded that, in a comparative negligence case, the jury should be informed of the legal effect of its findings. Ibid. Noting that the comparative negligence statute made no mention of whether juries should be informed of the statute’s legal effect, the Court held that the jury “should be given an ultimate outcome charge so that its deliberations on percentages of negligence will not be had in a vacuum, or possibly based on a mistaken notion of how the statute operates.” Ibid.

The Court reasoned that an ultimate outcome jury instruction was not a novelty in the jurisprudence of negligence. Prior to the adoption of our comparative negligence statute, a plaintiffs contributory negligence was a complete bar to recovery if it proximately contributed to the occurrence of an accident. Dziedzic v. St. John’s Cleaners & Shirt Launderers, Inc., 53 N.J. 157, 161, 164-65, 249 A.2d 382 (1969); Kaufman v. Pennsylvania R.R. Co., 2 N.J. 318, 323-24, 66 A.2d 527 (1949). In such cases, the jury was given an ultimate outcome instruction that if it found contributory negligence on the part of a plaintiff to any degree that proximately contributed to the happening of the accident, the legal effect of that finding obligated the jury to return a verdict in favor of the defendant. Roman, supra, 82 N.J. at 345, 413 A.2d 322; O’Brien v. Bethlehem Steel Corp., 59 N.J. 114, 124, 279 A.2d 827 (1971). Moreover, the Roman Court noted that requiring an ultimate outcome instruction was consistent with the trend in other jurisdictions. Roman, supra, 82 N.J. at 346, 413 A.2d 322.

When the Court in Roman acknowledged that an ultimate outcome instruction prevents a jury from applying a mistaken notion of how a statute works, and when it agreed with plaintiff that the jury probably intended that plaintiff recover 25% even though it found plaintiff 75% negligent, the Court by implication based its decision to require an ultimate outcome instruction partly on the fact that New Jersey had adopted a modified rather than a pure comparative negligence statute. N.J.S.A. 2A:15-5.1; Van Horn v. William Blanchard Co., 88 N.J. 91, 94, 438 A.2d 552 (1981). The New Jersey comparative negligence statute provides that a contributorily negligent plaintiff may recover, “if such negligence was not greater than the negligence of the person against whom recovery is sought.” N.J.S.A. 2A:15-5.1. “New Jersey has a ‘modified’ comparative negligence system, as distinguished from a ‘pure’ system under which ‘a plaintiff may recover even if his negligence is greater than the negligence of the adverse tortfeasor,’ with the recovery ‘diminished by his degree of contributory negligence.’ ” Van Horn, supra, 88 N.J. at 94-95, 438 A.2d 552 (citation omitted).

The Roman Court relied on decisional law of Idaho, a state that also has a modified comparative negligence statute. In Seppi v. Betty, 99 Idaho 186, 579 P.2d 683 (1978), the court stated:

A jury uninformed about the precise working of the Idaho comparative negligence law, when presented with questions asking them to apportion the negligence between the parties and to fix the total amount of damages, is likely to assume that the plaintiffs recovery will be reduced in proportion to his negligence. In such situation the Idaho comparative negligence rule, which bars recovery if the plaintiffs negligence is 50% or more, poses a trap for the uninformed jury____ In the case where it is clear that both parties were negligent to some extent, a 50-50 allocation of negligence is singularly attractive to a jury.... Thus, the uninformed jury could easily deceive itself into believing that it has decided that the defendant should pay for half of the plaintiffs damages when in fact it has determined that the plaintiff will recover nothing at all.

{Id. 579 P.2d at 690.]

The Court in Roman used the Idaho Supreme Court decision as an interpretive aid for our comparative negligence statute because both states had adopted a modified version of comparative negligence that drove the ultimate outcome instruction decision. See Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 161, 406 A.2d 140 (1979).

The concern about an uninformed jury is not critical in a pure comparative negligence jurisdiction because the jury would be correct in assuming that a plaintiffs recovery simply would be reduced by the extent of that plaintiffs negligence. Thus, the Roman decision was appropriate under New Jersey’s modified comparative negligence statute because in order to make an informed apportionment of fault, the jury needed to know that a plaintiff would not recover if that plaintiff was determined to be more negligent than a defendant from whom recovery was sought.

Following the decision in Roman, the Court in Fischer v. Canario, 143 N.J. 235, 670 A.2d 516 (1996), held that in Scafiditype-lost-chance cases, the jury should be given an ultimate outcome instruction. Id. at 254-55, 670 A.2d 516. Scafidi lost-chance eases are those involving a defendant’s negligence that has combined with a preexisting condition to cause harm. Because those types of eases require use of the “substantial factor” standard of causation rather than the “but for” standard, Anderson v. Picciotti, 144 N.J. 195, 206-07, 676 A.2d 127 (1996), the legal principles that inform the determination of causation with respect to damages are quite similar to those involved in making the percentage of negligence determination under the comparative negligence statute. Ibid.; Scafidi, supra, 119 N.J. at 113, 574 A.2d 398. The comparison in Scafidi-type eases is between the preexistent condition and defendant’s conduct to arrive at the lost chance or apportionment of responsibility on a percentage basis. The rationale is based on simple justice.

In a Scq/wii-type case, as with comparative negligence, “ ‘a tortfeasor should be charged only with the value of the interest he [or she] destroyed.’ ” Scafidi, supra, 119 N.J. at 112, 574 A.2d 398 (quoting Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1356 (1981)).

[Anderson, supra, 144 N.J. at 207, 676 A.2d 127.]

Fischer required an ultimate outcome instruction so that the jury would know the legal effect of the apportionment of causation. Fischer, supra, 143 N.J. at 254, 670 A.2d 516. The apportionment is made between the harm caused by a defendant’s negligent medical treatment and that caused by the patient’s preexisting medical condition. Id. at 241, 670 A.2d 516. Once the jury has measured the lost chance on a percentage basis, the judge is required to “ ‘mold the verdict to limit defendant’s liability to the value of the lost chance for recovery attributable to defendant’s negligence.’ ” Id. at 241-42, 670 A.2d 516 (quoting Scafidi, supra, 119 N.J. at 114, 574 A.2d 398). In requiring an ultimate outcome charge, the Court in Fischer feared that without it, the jury would mistakenly reduce the damages award to reflect its apportionment of responsibility and the trial court would again reduce the damages when molding the verdict.

Johnson v. Mountainside Hospital, supra, 239 N.J.Super. 312, 571 A.2d 318, presented the identical legal issue raised in the present case. There, the plaintiffs wife died when her respirator was accidentally disconnected while receiving medical treatment at Mountainside Hospital. Id. at 317-18, 571 A.2d 318. Suit was instituted against the hospital and several hospital employees. Id. at 318, 571 A.2d 318. The jury found the manufacturer of the respirator 80% negligent and the hospital liable for 20% of the total damages awarded, which equaled $96,250. Id. at 319, 571 A.2d 318. Based on the Charitable Immunity Act, however, the hospital’s liability was reduced to $10,000. Ibid. Plaintiff argued on appeal that the jury should have been given an ultimate outcome instruction. Id. at 319-20, 571 A.2d 318.

The purpose of that requested jury instruction in Johnson and the present ease was the same: to counteract defendant’s perceived trial strategy of casting the blame, if any, for decedents’ deaths upon the hospitals which had statutorily limited liability while shielding the individual defendants who had unlimited liability exposure. Id. at 325, 571 A.2d 318.

In rejecting the request for an ultimate outcome instruction, the court in Johnson stated:

If the requested instruction was to have any effect upon a jury’s verdict, it could only be to persuade the jury to shift to the other defendants some amount for which it had concluded the hospital, and not the other defendants, was justly responsible. By the enactment of N.J.S.A. 2A:53A-8, the legislature determined that, as a matter of social policy, an injured beneficiary of the hospital’s works, can shift only a limited share of the consequences of the hospital’s negligence to the hospital itself. But there is no reason to believe that a purpose of the statute was to shift any part of those consequences to other parties merely because they happen to be caught up in the same law suit as the hospital. We agree with the trial judge that a charge leading to that result would be unfair and inappropriate. In that respect, we think that the situation presented by this ease is different from situations in which an ultimate outcome charge has been held to be required. See Roman v. Mitchell, 82 N.J. 336, 345-347, 413 A.2d 322 (1980); Dimogerondakis v. Dimogerondakis, 197 N.J.Super. 518, 485 A.2d 338 (Law Div.1984).

[Id. at 325-26, 571 A.2d 318.]

IV

We agree with the holding in Johnson and its reasoning. Neither Roman nor Fischer supports an ultimate outcome charge that informs a jury that a defendant hospital has statutorily limited monetary liability. Both Roman and Fischer were limited to comparative fault situations.

In a comparative fault situation, the jury is required to express the relative culpability of the defendants in terms of percentages. Because New Jersey does not have a “pure” comparative fault system, the ultimate outcome instruction was required so that the jury would not deliberate on the percentages of fault under some mistaken notion of how the statute that controlled its deliberations worked. Without such a charge, the jury could mistakenly assume that a finding that plaintiff was sixty percent negligent and defendant was forty percent negligent would allow plaintiff to recover forty percent.

The type of charge involved here focuses on money and not percentages of fault. The model jury charge in comparative negligence cases properly informs the jury how to handle damages. It provides that any assessment of damages for a plaintiffs injuries “should be made irrespective of which party is at fault or to what degree, or who is to ultimately pay damages to be assessed.” Model Jury Charge (Civil), 8.22, “Comparative Negligence-Interrogatories,” (pre-1985).

Furthermore, for more than three-quarters of this century our courts have held that in negligence cases, it is improper to inform the jury whether the defendant is insured or uninsured. Sutton v. Bell, 79 N.J.L. 507, 510, 77 A. 42 (E. & A.1910). Where, -as in the present case, the issue before the jury is the negligence of the defendant, whether a monetary verdict is collectable or a defendant has insurance is irrelevant to the jury. Brandimarte v. Green, 37 N.J. 557, 562-63, 182 A.2d 562 (1962); Raid v. Loderstedt, 45 N.J.Super. 547, 550-52, 133 A.2d 655 (App.Div.1957). More recently, even in the trial of verbal threshold cases before a jury to determine whether a plaintiffs alleged injuries qualify under that statute, N.J.S.A. 39:6A-8a, our courts have held that it is improper to mention verbal threshold insurance coverage. Demers v. Snyder, 282 N.J.Super. 50, 58, 659 A.2d 495 (App.Div.1995); Pickett v. Bevacqua, 273 N.J.Super. 1, 5-6, 640 A.2d 1173, (App.Div.1994). References to insurance can prejudice a defendant by suggesting that the defendant did not care whether proper care was exercised because the insurance company would pay if found to be at fault. A reference to coverage might even suggest that a larger award may be appropriate because a “deep pocket” is available. On the other hand, if a defendant is uninsured, that may engender sympathy for that defendant to the prejudice of the plaintiff.

Consistent with the principle that juries in negligence cases not be informed regarding the insured status of a defendant, our public policy has prohibited counsel in negligence cases from requesting a jury to return a damage award in a specific amount. Botta v. Brunner, 26 N.J. 82, 102-104, 138 A.2d 713 (1958). Although the strictures of Botta have been modified by Rule 1:7-1(b) to permit argument to the jury “that unliquidated damages be calculated on a time-unit basis,” reference to a specific sum may not be made.

Complementary to our decisional law and court rules precluding arguments for or against a specific sum in negligence cases, the Legislature has also addressed the issue. As part of its 1995 tort reform, L.1995, c. 142, § 9, the Legislature directed that “[t]he jury shall not be informed of the cap on punitive damages established by section 6 of this act.” N.J.S.A. 2A:15-5.16. The cap was fixed at “five times the liability of that defendant for compensatory damages or $350,000, whichever is greater.” L.1995, c. 142, § 6, codified at N.J.S.A. 2A:15-5.14b. Because a hospital can be subject to a potential claim for punitive damages, Perna v. Pirozzi, 92 N.J. 446, 461, 457 A.2d 431 (1983); Edwards, supra, 217 N.J.Super. at 459, 526 A.2d 242; Seiderman v. American Inst. for Mental Studies, 667 F.Supp. 154, 160-61 (D.N.J.1987), we believe that the 1995 legislative proscription against divulging caps to juries is relevant in the present case.

In view of the foregoing legal principles, an ultimate outcome charge, based on the Charitable Immunity Act, in a negligence suit against a hospital is not only irrelevant but has the clear potential of being highly prejudicial. We are convinced that the prejudicial effect of such an instruction could be to shift to other defendants some percentage of negligence that the jury thought should rightfully be assessed against the hospital. We find persuasive the hospital’s argument that informing a jury about a hospital’s limited liability is akin to telling a jury whether a defendant is insured and the amount of coverage and is at least as prejudicial as telling it about insurance coverage. Such a prejudicial effect would be the antithesis of what Roman and Fischer anticipated. Informing a jury of the liability cap also violates the legislative policy expressed in the Charitable Immunity Act of protecting nonprofit hospitals and the Legislature’s desire to withhold from juries the existence of statutory limits on monetary awards.

Finally, we find unpersuasive plaintiffs assertion that an ultimate outcome charge is especially needed when the same defense attorney represents the hospital and its employees. A hospital can only act through its agents, servants and employees. Schultz, supra, 95 N.J. at 538, 472 A.2d 531. Thus, a hospital can only be vicariously liable. Consequently, if each defendant-employee of a hospital was represented by separate counsel, he or she would perhaps more vigorously seek to shift responsibility to the capped defendant, the hospital. Despite plaintiffs view to the contrary, defense counsel vigorously asserted that neither the hospital nor any of its employees had been negligent in treating Mr. Wood.

That portion of the judgment of the Appellate Division requiring an ultimate outcome jury instruction is reversed. As modified, the matter is remanded to the Law Division for retrial as ordered by the Appellate Division.

1 The statute was amended effective July 31, 1991, to raise the outer limit of a hospital's liability to $250,000. L.1991, c. 187, § 48.