On appeal from Superior Court of New Jersey, Law Division, Ocean County.
J.h. Coleman and Dreier. The opinion of the court was delivered by J.h. Coleman, P.J.A.D.
This appeal requires us to decide whether the res ipsa loquitur doctrine is available to a plaintiff in a medical malpractice suit against a cardiothoracic surgeon who intentionally leaves inside the surgical wound a small piece of a stainless steel surgical needle which broke off while defendant was stitching the halves of the sternal bone together following triple bypass surgery.
Plaintiff John W. Wagner, Jr.'s (plaintiff) theory of liability during the trial was based exclusively upon the assertion that the cardiothoracic surgeon was negligent because of his decision to leave the tip of the surgical needle in the sternum.
Plaintiff does not contend there is any negligence associated with the needle breaking or that the needle was defective.*fn1 After plaintiff rested his case without calling an expert witness to establish the standard of care required and any deviation, and after defendants had produced an expert, the trial judge concluded that res ipsa loquitur did not apply. The judge therefore entered a judgment of involuntary dismissal. R. 4:37-2(b). We here affirm.
The facts are not complicated. In 1982, plaintiff age 56, was referred by his family physician to defendant Deborah Heart & Lung Center (Deborah) for a heart problem he had for some time. He was admitted to Deborah where a cardiac work-up was done. Following the work-up, he was told he needed open-heart surgery. On March 8, 1982, defendant Dr. Javier Fernandez, a cardiothoracic surgeon, performed a triple bypass surgery. In order to perform the open heart surgery, the sternum had to be split into halves and cranked open. Once the bypass procedures were completed, the closure procedure was commenced.
As part of the closure procedure, the halves of the sternum had to be positioned properly and stitched together with suture wires. To stitch the halves together, a surgical needle called an awl was used. The awl was made of special stainless steel. One end has a sharp cutting edge used to puncture holes through the sternal bone into which stainless steel suture wires were inserted to hold the sternal halves together. While Dr. Fernandez
was manipulating the awl needle through the sternal bone, a piece of the awl needle measuring about one-third of an inch in length by one-tenth of an inch in diameter broke off and lodged in the bone marrow inside the sternal bone. This was recorded on the hospital chart, and Dr. Fernandez testified that on March 10, 1982, he informed plaintiff that the "tip of the sternal needle broke off inside the sternum and he left it there since it would be [an] inert object, an object causing no harm."
Rather than interrupt the closure procedures, Dr. Fernandez purposely decided to leave the awl needle fragment in the sternum. The sternum was closed with six wire sutures, and the needle fragment was left inside the sternum. Plaintiff was discharged from the hospital on March 15, 1982.
Shortly after the bypass surgery, plaintiff experienced pain on the left side of his chest which was described by some physicians as "strain-on-incision" type pain. Plaintiff was readmitted to Deborah on March 24, 1982, with surgical complications related to some blood around the heart, a condition called post-carditis syndrome. He was treated and discharged on April 2, 1982. In May 1982, Dr. Dryden Morse felt that the prednisone medication plaintiff was taking may have been slowing the healing of the sternum. Plaintiff continued treatment at Deborah's outpatient department through the end of 1982 while still complaining of chest pain.
On February 1, 1983, a nuclear bone scan and special x-rays of the sternum disclosed nonunion of the sternum. Plaintiff was readmitted to Deborah on February 9, 1983, and Dr. Fernandez performed a sternal revision and removed five of the six stainless steel wire ...