Benson not to prescribe and use the Prolift system or Linda Gross not to agree to the use of the Prolift system.
No objection was lodged before the jury began deliberations.
Jury instructions, of course, should correctly state the law in clear and understandable language. Mogull v. CB Commercial Real Estate Grp., Inc., 162 N.J. 449, 464 (2000); Boryszewski v. Burke, 380 N.J. Super. 361, 374 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). When reviewing jury instructions, we are required to read the charge as a whole and will not intervene if the charge “adequately conveys the law and does not confuse or mislead the jury.” Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997). Our standard of review prevents us from intervening unless the jury could have reached a different result had the court provided the correct instruction. Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002). Absent an objection, an appellant must convince us that the error was clearly capable of producing an unjust result. R. 2:10-2.
Causation is “an essential element in a failure[-]to[-]warn claim,” Burley v. Kytec Innovative Sports Equip., Inc., 737 N.W.2d 397, 410 (S.D. 2007), and “ultimately rests with the patient’s decision to take or reject” the product offered, Payne v. Novartis Pharm. Corp., 767 F.3d 526, 532 (6th Cir. 2014) (applying Tennessee law). See also In re Prempro Prods. Liab. Litig., 586 F.3d 547, 570 (8th Cir. 2009) (finding, pursuant to Arkansas law, sufficient evidence for a jury to determine a failure to warn was the proximate cause of the plaintiff’s injuries and that the patient would not have chosen hormone replacement therapy if she had known of the risk of breast cancer); Restatement (Third) of Torts: Products Liability § 6 cmt b (1998) (explaining that a health care provider has a duty “to supply to the patient such information as is deemed appropriate under the circumstances so that the patient can make an informed choice as to therapy”). The South Dakota Supreme Court has emphasized a similar “patient-oriented” standard in informed consent cases. Savold v. Johnson, 443 N.W.2d 656, 659 (S.D. 1989) (holding that the rule to determine whether adequate information was provided to a patient was whether a reasonable person would not have agreed to the proposed treatment if told beforehand of the risk which resulted in injury); Wheeldon v. Madison, 374 N.W.2d 367, 374 (S.D. 1985) (holding “the right to know — to be informed — is a fundamental right personal to the patient and should not be subject to restriction by medical practices that may be at odds with the patient’s informational needs”).