Collester, Leonard and Halpern. The opinion of the court was delivered by Halpern, J.A.D.
This is a medical malpractice suit by plaintiff against defendants Peck, a plastic surgeon, and Beth Israel Hospital. At the close of plaintiff's proofs the trial judge dismissed all claims against Beth Israel Hospital. At oral argument plaintiff and Peck stipulated that the appeal as to the hospital be dismissed with prejudice. The present appeal by plaintiff, for all practical purposes, is from the judgment entered on the jury's verdict of no cause for action in Peck's favor, based on the grounds that the trial court erred in denying her motions for a directed verdict, for judgment n.o.v. or, in the alternative, a new trial.
A distillation of the undisputed facts, as testified to by Peck, indicates that plaintiff was admitted to the Beth Israel Hospital as Peck's patient for three operative procedures by him: (a) to excise and suture a scar on her forehead; (b) debride scars on her cheek, and (c) to remove a mole or lesion on her neck with a Bovie Electric Cautery which emits a spark when a foot pedal is activated by the surgeon. After plaintiff was anesthetized Peck personally prepped her for the operation by wiping down or painting
the areas involved with gauze soaked in pure alcohol and draping them with sterile towels. He first excised and sutured the scar on her forehead, which took about 10 to 15 minutes. He then debrided the scars on her cheek, which took about 10 minutes. Finally, as he turned on the electric current to utilize the cautery and neared the neck area with it to commence removing the lesion, "* * * a spark emitted from the needle to the skin and there was a flash over the entire area causing a burn of this area." It was to recover for the resulting injuries that this suit was commenced.
Peck further testified it was the alcohol that started the fire, and although he knew alcohol was inflammable he had used it as a prep in over 3,000 operations without any untoward result. It was his opinion, corroborated by his medical expert, Dr. Frederick Coester, that it was standard operating procedure to use alcohol as a prepping agent if you wait at least ten minutes for its fumes to evaporate. Having waited beyond the prescribed time, he could not explain the flash fire which resulted. He acknowledged the existence of other nonflammable preps, and frankly admitted that ever since plaintiff's injury he has not used alcohol as a prep.
Plaintiff's medical expert, Dr. Marvin A. Stevens, testified that Peck's use of alcohol as a prep was a deviation from approved medical standards. He was of the opinion that the humidity in the operating room, or the towels draped over the operative area, could have affected the rate of the alcohol's evaporation. In any event, it was Peck's obligation to be sure the operative area was safe and dry before proceeding. While Dr. Coester testified that Peck's use of an alcohol prep was not a deviation from approved medical standards if ten minutes were allowed to elapse after application, he normally used non-alcoholic preps. He agreed with Dr. Stevens that it was Peck's responsibility to be sure the operative area was dry, and that the time it takes for alcohol to evaporate varies according to existing conditions.
In light of these facts the trial judge charged the jury, based on the doctrine of res ipsa loquitur , that they could infer Peck to have been negligent, although not required to do so, if they determined that (1) the incident here involved ordinarily does not occur in the absence of negligence; (2) it was caused by an instrumentality within the exclusive control of Peck, and (3) it was not due to any voluntary act or neglect on plaintiff's part. This instruction was in line with reported New Jersey medical malpractice cases. See Sanzari v. Rosenfeld , 34 N.J. 128 (1961); Terhune v. Margaret Hague Maternity Hospital , 63 N.J. Super. 106 (App. Div. 1960); Becker v. Eisenstodt , 60 N.J. Super. 240 (App. Div. 1960); Toy v. Rickert , 53 N.J. Super. 27 (App. Div. 1958); Steinke v. Bell , 32 N.J. Super. 67 (App. Div. 1954); Gould v. Winokur , 98 N.J. Super. 554 (Law Div. 1968), aff'd 104 N.J. Super. 329 (App. Div. 1969). As indicated, the doctrine permits an inference of negligence, but does not mandate it even though, as here, Peck was unable to explain the cause of the accident. The doctrine, when applicable, is used to avoid a dismissal at the close of a plaintiff's proofs. Sanzari, supra , at 141.
We find it difficult, if not inadvisable, to instruct juries in terms of legal doctrines such as res ipsa -- this is especially true in medical malpractice cases where the facts differ so widely from other types of negligence or products liability cases, and expert medical testimony is normally required. Instructing juries as to permitted inferences, presumptions, prima facie cases, burden of proof, shifting of burden of proof, as is often done in non-medical malpractice cases, even though the same principles may be applicable, rarely is helpful to a jury in a medical malpractice case -- particularly where no explanation for the accident is given. See, for example, Prosser, Law of Torts (4th ed.) at 231-235; 1 Louisell and Williams, Medical Malpractice , § 1503; Kahalili v. Rosecliff Realty, Inc. , 26 N.J. 595, 604-608 (1958), and Vespe v. Di Marco , 43 N.J. 430 (1964). This
difficulty was recognized by the court when confronted with a case involving an allowable inference of negligence. In Rose v. Port of New York Authority , 61 N.J. 129 (1972), Justice Mountain pointed out:
Traditionally an allowable inference of negligence on the part of a defendant is justified if (a) the occurrence itself ordinarily bespeaks negligence, (b) the instrumentality was within defendant's exclusive control, and (c) there is no indication that the injury is attributable to plaintiff's voluntary act or neglect. Kahalili v. Rosecliff Realty, Inc. , 26 N.J. 595, 605-607 (1958); Bornstein v. Metropolitan Bottling Co. , 26 N.J. 263, 269-273 (1958). Whether we refer to this as the rule of res ipsa loquitur or simply say that the circumstances are ...