On appeal from Superior Court of New Jersey, Law Division, Bergen County.
The opinion of the court was delivered by Coleman, J.h., P.J.A.D.
One of the pivotal issues raised in this medical malpractice case is whether the judge should have instructed the jury pursuant to Anderson v. Somberg, 67 N.J. 291, 338 A.2d 1, cert. denied, 423 U.S. 929, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975), that each defendant had the burden to exonerate himself from liability. The judge declined to give such an instruction to the jury after insisting that he would throughout most of the trial. Another issued raised is whether reallocation of the burden of proof to plaintiff after essentially all the evidence had been presented so prejudiced plaintiff that a reversal is required. For the reasons which follow, we reverse the judgment of nonliability and remand for a new trial.
Plaintiff Sidney Blitz was admitted to the Hackensack Medical Center on August 25, 1985, with a history of cardiovascular problems. On September 3, 1985, defendant Dr. Hutchinson, a cardiothoracic surgeon, headed a surgical team which performed triple bypass surgery on plaintiff. Defendant Dr. Harris, also a cardiothoracic surgeon, was the first assistant who removed the saphenous vein from plaintiff's leg so it could be used as the conduit to bypass the blockage in the coronary artery. Defendant Dr. Arif, a fellow in cardiac surgery, was the second assistant. Once the bypass procedures were completed,
plaintiff's chest cavity was closed and he was placed in the recovery room.
While in the recovery room, it was observed that plaintiff suffered a sudden drop in blood pressure which caused him to go into shock. Plaintiff was returned to the operating room where an exploratory laparotomy was performed by Dr. R. Keys, a general surgeon, who was assisted by Dr. Hutchinson. Dr. Hutchinson found excessive bleeding into the abdominal cavity from a laceration in the right lobe of the liver that measured approximately one-half centimeter. The laceration was sutured by Dr. Hutchinson and plaintiff stabilized after blood transfusions. Plaintiff learned of the second surgical procedure four days later.
The medical malpractice complaint was filed on August 18, 1987, alleging that during the course of the triple bypass surgery, one, some or all of the defendants negligently lacerated plaintiff's liver. All defendants filed answers denying any malpractice. On June 7, 1990, counsel for defendant Dr. Arif was relieved from further representation of him. A jury trial was conducted over a four day period during which Dr. Arif did not participate.
Special interrogatories were propounded to the jury. The first question asked the jury to decide whether either one or more of the defendants were negligent "while performing coronary bypass surgery upon Plaintiff Sidney Blitz on September 3, 1985, which negligence was a proximate cause of injury to plaintiff's liver"? The jury was asked to answer "yes" or "no" as to each defendant. The jury answered five to one "No" as to each defendant. A judgment of no cause was entered based on the verdict of the jury.
Dr. Howard G. Greene, a board certified general surgery surgeon, testified as an expert for plaintiff. He stated that although it was obvious plaintiff's liver was lacerated during
the bypass operation, he had no way of knowing how the laceration exactly occurred because the cause of the laceration was not mentioned in the hospital records. Dr. Greene testified further that based on his own experience, a review of the medical literature and various reports, a laceration of the liver is not an accepted or recognized complication of coronary bypass surgery.
Dr. Greene testified further that a surgeon who properly performs a bypass operation will not injure the patient's liver because generally the surgeon will not be working near that organ. It was his view that there is no medically probable way that the liver can be lacerated while inserting a pericardial drainage tube, i.e., a tube which is inserted into the pericardium and into either one or both of the pleural spaces that is opened during the bypass surgery in order to allow drainage of any excess fluid. Beyond that, Dr. Greene maintained that based on plaintiff's hospital record, no pericardial tube was used during his operation. Dr. Greene opined that it was Dr. Hutchinson who deviated from accepted standards of medical care in the course of plaintiff's coronary bypass operation.
Dr. Hutchinson testified on his own behalf. He is a board certified general and thoracic surgeon and, since 1985, the Director of Cardiac Surgery at defendant hospital. He approximated that, prior to the date of plaintiff's surgery, he had performed 9,000 to 11,000 bypass operations, at the rate of three to four per day, and he explained that the risks commonly associated with such a procedure are: death, stroke, central nervous system problems, excessive bleeding, infection and post-pericardiotomy syndrome, such as febrile illness.
Dr. Hutchinson testified that during the bypass procedure, he stood on plaintiff's left side while Dr. Arif was on the right side. While the two of them were working as a team in plaintiff's chest cavity, Dr. Harris removed the vein from plaintiff's leg and then left the operating room, returning after the heart-lung machine had been turned off. He further stated
that if he inserted a pericardial tube it would have been inserted on the left side of plaintiff's chest. The record did not disclose whether he did or did not insert such a tube. To position such a tube into the pericardium, an incision has to be made on one side and a clamp with tube attached is blindly passed through the incision and maneuvered until it reaches the corresponding side of the heart. He stated that only a person on the left side of the patient's body can insert a tube on that side of the patient. He testified that Dr. Arif would have been the person to insert a pericardial tube into the right side of plaintiff's chest. However, on cross-examination, Dr. Hutchinson stated that he could not recall whether Dr. Arif actually inserted such a tube and there was no indication one way or the other in the hospital record.
In addition, Dr. Hutchinson explained that a patient's liver is occasionally exposed during a bypass operation. When opening the chest, if the lower part of the initial incision opens into the lower part of the peritoneum, the liver may be, but is not usually, exposed. Most importantly, counsel for the parties never asked Dr. Hutchinson how the laceration to plaintiff's liver actually occurred during the operation performed on plaintiff.
Dr. Harris testified and corroborated Dr. Hutchinson's account of his whereabouts and actions during plaintiff's operation. He also stated that, because he only removed the saphenous vein from plaintiff's leg, he did ...