Carton, Mintz and Seidman.
Plaintiff appeals from a judgment entered in favor of all defendants following a jury trial. His motion for a new trial was denied.
On November 14, 1967 plaintiff was operated on by defendant Dr. Somberg at St. James Hospital (hospital) for the removal of an intravertebral disc at the L4-5 level. During the course of the surgery the cup of one of the jaws of the metal pituitary rongeurs (forceps) being used to remove disc material broke off and remained within the surgical cavity. Dr. Somberg testified that he immediately went into the cavity with a straight pituitary and felt metal hitting metal. He tried grasping but he could not come up with the cup. After about 30 minutes of attempting to recover the cup, and no longer being able to feel metal, Dr. Somberg decided that the best course to follow at this point would be to sew up plaintiff, which he did.
The instrument in question was an angulated pituitary rongeur manufactured by defendant Lawton Instrument Company (Lawton) who sold it to defendant Reinhold-Schumann, Inc. (Reinhold). Reinhold, in turn, sold the instrument to the hospital on or about August 25, 1963. It appears that the pituitary rongeur was used only in laminectomies, perhaps five times a year. The instrument was kept in a special drawer because it was rarely used. Plaintiff's basic complaint against Dr. Somberg is for malpractice. Dr. Somberg testified that he made no inspection of the rongeur prior to the surgery. However, he stated that in the course of the surgery when the instrument was handed
to him by the hospital nurse he made an observation of it to see if the cup or jaw of the rongeur was present, that the edges met and also that the scissor-like jaws of the forceps closed and opened. When he held his hand out for the instrument during surgery his left hand at that time was inserted deep within the wound to hold the nerve root retractor in place on the nerves. He stated: "The inspection is limited to mobility of the handle and -- I don't have to look at the handles to feel the degree of resistance. I look at the cups and see that the edges meet. There was no other component of my examining the instrument beyond those two aspects." This examination took only a few seconds and he noticed nothing unusual about the instrument.
Dr. David Graubard, whose specialty is general surgery, testified as an expert for plaintiff. He stated that if the particular rongeur was used properly, i.e., avoiding excessive strain and tortion or twisting, and was not defective, it would not break.
Plaintiff's claim against the hospital was apparently predicated upon negligence in the maintenance and inspection of the rongeur. Plaintiff's claim against Lawton and Reinhold was essentially predicated upon a breach of implied warranty of merchantability. John Carroll, an expert witness for Lawton, testified that he examined the instrument in question, performed laboratory tests upon it and found no evidence of faulty workmanship. He was of the opinion that the failure was a result of the instrument being overstrained. He said that the pattern of fracture of the rongeur indicated that the strain was caused by a twisting motion (which Dr. Graubard testified should be avoided in the use of this instrument). Carroll said that the strain could have occurred during the course of one operation or many operations. He also indicated that if the instrument had previously suffered the strain, it could thereafter break even through normal use. He could not pinpoint the time when the instrument was strained.
Testimony was presented regarding the injury to plaintiff as a consequence of the unfortunate incident to which we have alluded. Dr. Somberg performed a subsequent operation for the sole purpose of removing the metal fragment that had remained in plaintiff's back.
The trial judge instructed the jury as follows:
The right of the defendants to have the plaintiff bear the required burden is a substantial one and not a mere matter of form. This burden may be sustained however, on the basis of all of the evidence in this case and the legitimate inferences to be drawn from it. And in this connection you may consider that the defendants were the only ones shown to have any relationship with the pituitary rongeur which broke during the course of the operation. And you may infer that the breaking was attributable to dereliction on the part of one or other of the defendants in this case.
At the conclusion of the trial the judge submitted special interrogatories to the jury. The jury found that the injuries and damages suffered by plaintiff were not proximately caused by the negligence or malpractice of the doctor; that they were not proximately caused by the negligence of the hospital in inspecting and furnishing the instrument to Dr. Somberg, and that the rongeur was not ...