For affirmance -- Chief Justice Hughes, and Justices Jacobs, Sullivan and Pashman. For reversal -- Justices Mountain and Clifford, and Judge Collester. The opinion of the Court was delivered by Pashman, J. Jacobs, J., concurs in the result but votes to affirm on the majority opinion rendered in the Appellate Division. Mountain, J., dissenting. Clifford, J., and Judge Collester join in this dissenting opinion.
[67 NJ Page 294] These negligence-products liability actions had their inception in a surgery performed in 1967 on the premises of defendant St. James Hospital (Hospital). Plaintiff was undergoing a laminectomy, a back operation, performed by defendant Dr. Somberg. During the course of the procedure, the tip or cup of an angulated pituitary rongeur, a forceps-like instrument, broke off while the tool was being manipulated in plaintiff's spinal canal. The surgeon attempted to retrieve the metal but was unable to do so. After repeated failure in that attempt, he terminated the operation. The imbedded fragment caused medical complications and further surgical interventions were required. Plaintiff
has suffered significant and permanent physical injury proximately caused by the rongeur fragment which lodged in his spine.
Plaintiff sued: (1) Dr. Somberg for medical malpractice, alleging that the doctor's negligent action caused the rongeur to break: (2) St. James Hospital, alleging that it negligently furnished Dr. Somberg with a defective surgical instrument; (3) Reinhold-Schumann, Inc. (Reinhold), the medical supply distributor which furnished the defective rongeur to the hospital, on a warranty theory, and (4) Lawton Instrument Company (Lawton), the manufacturer of the rongeur, on a strict liability in tort claim, alleging that the rongeur was a defective product. In short, plaintiff sued all who might have been liable for his injury, absent some alternative explanation such as contributory negligence.
Dr. Somberg testified that he had not examined the rongeur prior to the day of surgery. He inspected it visually when the nurse handed it to him during the operation, and manipulated its handles to make certain it was functional. The doctor stated that he did not twist the instrument, and claimed that the manner in which the instrument was inserted in plaintiff's body precluded the possibility of twisting. He noted the absence of one of the rongeur's cups when he withdrew the instrument from plaintiff's spinal canal, but his efforts to retrieve the fragment proved of no avail.
Dr. Graubard, a general surgeon, testified as an expert witness for plaintiff. He stated that the rongeur was a delicate instrument, a tool not to be "used incorrectly or with excessive force or to be used against hard substances." He claimed that a twisting of the instrument might cause it to break at the cups. Dr. Graubard stated that a "rongeur used properly and not defective would not break."
The deposition of the operating room supervisor of defendant hospital, Sister Carmen Joseph, was read into the record. She was responsible for visually examining and
sterilizing all instruments prior to surgery. The rongeur in question was used about five times a year, and had been used about 20 times before this operation. She did not know who had taken out the rongeur for this operation; she had not worked the day of plaintiff's operation.
The hospital's purchasing agent testified that the rongeur had been purchased from the distributor, Reinhold, about four years prior to plaintiff's surgery and was received in a box bearing the name of the manufacturer, Lawton. The owner of Reinhold testified that the rongeur was not a stock item and had to be specially ordered from Lawton upon receipt of the hospital purchase order. The box was opened at Reinhold's warehouse, to verify that it was a rongeur and it was then forwarded to the hospital.
Defendant Lawton called a metallurgist, a Mr. John Carroll, as an expert witness. He testified that an examination of the broken rongeur revealed neither structural defect nor faulty workmanship. He said that the examination (conducted at an optical magnification 500 times normal size) revealed a secondary crack near the main crack but he could not suggest how or when that crack formed. Mr. Carroll offered an opinion as to the cause of the instrument's breaking: the instrument had been strained, he said, probably because of an improper "twisting" of the tool. The strain, however, could have been cumulative, over the course of several operations, and the instrument could conceivably have been cracked when handed to Dr. Somberg and broken in its normal use.
In short, when all the evidence had been presented, no theory for the cause of the rongeur's breaking was within reasonable contemplation save for the possible negligence of Dr. Somberg in using the instrument, or the possibility that the surgeon had been given a defective instrument, which defect would be attributable to a dereliction of duty by the manufacturer, the distributor, the hospital or all of them.
The case was submitted to a jury on special interrogatories, and the jury returned a finding of no cause as to each defendant. On appeal, the entire Appellate panel concurred in an order for a new trial. A majority held that the verdict represented a miscarriage of justice, and that on the facts of this case it was clear that one of the parties was liable and the jury should have been told that it had to return a verdict against at least one of the defendants. The concurring opinion writer argued that the jury had not been properly instructed on its prerogatives to find for plaintiff; but he felt that the order for a directed verdict against an unnamed defendant was an invitation to the jury to guess which defendant was liable. Accordingly, the concurrence urged that the case be remanded for trial, and that the jury be instructed that plaintiff had made out a very strong prima facie case. Certification was granted. 63 N.J. 586 (1973).
First, we note that the suggestion in the concurring opinion that the case be sent back on "strengthened" instructions is little more than a pretext for giving plaintiff a second chance before a jury. Neither in the Appellate Division nor before this Court has it been alleged, let alone demonstrated, that the charge did not comport with the standard charge for a "strong" prima facie case made out by res ipsa loquitur (thought to be appropriate here). Indeed, the trial judge very adequately explained to the jury that plaintiff, given all favorable inferences, could be said to have proved his case.*fn1 See Vespe v. Di Marco, 43 N.J. 430, 439 (1964).
The position adopted by the Appellate Division majority seems to us substantially correct: that is, at the close of all the evidence, it was apparent that at least one of the defendants was liable for plaintiff's injury, because no alternative theory of liability was within reasonable contemplation. Since defendants had engaged in conduct which activated legal obligations by each of them to plaintiff, the jury should have been instructed that the failure of any defendant to prove his nonculpability would trigger liability; and further, that since at least one of the defendants could not sustain his burden of proof, at least one would be liable. A no cause of action verdict against all primary and third-party defendants will be unacceptable and would work a miscarriage of justice sufficient to require a new trial. R. 2:10-1.
In the ordinary case, the law will not assist an innocent plaintiff at the expense of an innocent defendant. However, in the type of case we consider here, where an unconscious or helpless patient suffers an admitted mishap not reasonably foreseeable and unrelated to the scope of the surgery (such as cases where foreign objects are left in the body of the patient), those who had custody of the patient, and who owed him a duty of care as to medical treatment, or not to furnish a defective instrument for use in such treatment can be called to account for their default. They must prove their nonculpability, or else risk liability for the injuries suffered.
This case resembles the ordinary medical malpractice foreign-objects case, where the patient is sewn up with a surgical tool or sponge inside him. In those cases, res ipsa loquitur is used to make out a prima facie case. Martin v. Perth Amboy General Hospital, 104 N.J. Super. 335, 342 (App. Div. 1969); Gould v. ...