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Scafidi (P) began the seventh month of a difficult pregnancy. On July 7th, she saw her regular obstetrician because of severe bleeding that had started that morning. The doctor warned that she 'was sitting on a time bomb and * * * [was] threatening abortion.' He prescribed bed rest and instructed her to call if any problems developed. That afternoon, P experienced intermittent abdominal cramps and attempted to communicate with her regular obstetrician, Dr. Franzoni. Between 5:00 and 6:00 p.m., D, an associate who was covering for Dr. Franzoni, returned the call. She explained her symptoms and also repeated Dr. Franzoni's admonition to her that morning. In response to Dr. Seiler's inquiries, she said that her bleeding had stopped, that the cramps were irregular, and that her next scheduled appointment with Dr. Franzoni was the following day. D informed P that he would order a medication called vasodilian to 'calm' the uterus, and told her to call back if the cramping intensified. D neither examined P nor consulted with Dr. Franzoni. P took three of the vasodilian pills during the night, but the cramping continued. Dr. Franzoni examined her the following morning, observing that her cervix was dilated three centimeters. He hospitalized her immediately and began tocolytic therapy, a means of arresting premature labor, using a solution of magnesium sulfate administered intravenously. The medication was unsuccessful. P gave birth to a twenty-eight-week gestated infant girl, weighing two pounds, six ounces. After two days of intensive care, the baby died of respiratory failure. Ps sued D seeking damages for pain and suffering and wrongful death on behalf of the deceased infant, and individually for loss of services. Ps alleged that D failed to examine, diagnose, and administer proper medication, resulting in the premature birth and death of her infant daughter. Ps' expert witness testified that vasodilian administered orally was virtually valueless as a tocolytic agent. He stated that D's failure to have examined and hospitalized P and institute proper tocolytic therapy deviated from accepted standards and 'directly related to the premature birth.' According to the expert, timely administration of tocolytic therapy was seventy-five to eighty-percent effective in arresting premature labor; 'the sooner you give tocolytic, the greater likelihood you would abort the labor.' Dr. Richard Berman testified that D's treatment was consistent with accepted standards. He stated that the outcome would not have been different even had tocolytic therapy begun after P spoke with D. He expressed the view that only twenty-five percent of patients receiving tocolytic therapy respond to it, and he could not determine whether it would have helped P. Dr. Berman agreed that 'retrospectively, the sooner it had been started, the better it would have been for P.' Ps requested a jury instruction on causation that involved a loss of chance. The trial court denied the request and instead gave the following instruction on causation: The plaintiff has the burden of proving that the injuries for which he seeks to be compensated were proximately caused by the accident in question. Now, I've used the term proximate cause. By proximate cause, we mean that the negligence of a particular party was a subsequent [sic] cause of the injury. That is, a cause which necessarily set the other causes in motion and was a substantial factor in bringing the injury complained of. It is a cause which naturally and probably led to, and might have been suspected to produce the injury complained of. P also requested that D’s liability, if found by the jury, would include all damages incurred by Ps unless D sustained the burden of proving that the damages could be apportioned between those attributable to P’s preexisting condition and those attributable to D's negligence. The trial court denied the request. The jury determined that D was negligent, but found that D's negligence was not the proximate cause of the infant's premature birth and death. The Appellate Division reversed, holding that the traditional proximate-cause charge was an inappropriate standard for determining causation, and that the 'increased risk' charge for loss of chance should have been given to the jury. D appealed.

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