On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Before Judges D'Annunzio, Rodr¡guez and Coburn
The opinion of the court was delivered by: D'annunzio, J.A.D.
This claim arises out of the tragic and avoidable death of Angelina Chin during a hysteroscopy, a diagnostic procedure in which death is not an anticipated risk. The trial court submitted the case to the jury under the principles announced in Anderson v. Somberg, 67 N.J. 291, cert. denied, 423 U.S. 929, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975). The jury awarded two million dollars in damages and apportioned liability as follows: twenty percent to Dr. Goldfarb; twenty percent to nurse Leib; twenty-five percent to nurse Hofgesang; thirty-five percent to St. Barnabas Medical Center; and zero percent to nurse Charles. The trial court had granted defendant C.R. Bard, Inc.'s motion for judgment at the close of the evidence.
After the jury announced its verdict, the court granted the motion of the hospital and the nurses for judgment notwithstanding the verdict. R. 4:40-2(b). The court entered judgment against Dr. Goldfarb alone for the entire amount of two million dollars plus interest. Dr. Goldfarb appeals. There are no cross-appeals. No one challenges plaintiff's right to judgment or to the two million dollar damages award. The only dispute is between the hospital and the nurses on the one hand, hereinafter sometimes referred to as the hospital defendants, and defendant Goldfarb.
A hysteroscopy is a diagnostic procedure whereby the uterus is observed utilizing a scope, a wand-like instrument with a television lens at its functioning end. The uterus can then be visualized on a television monitor. The physician's view is enhanced by stretching the uterus. This is achieved with the flow of fluid into the uterus. The flow can be by gravity or by the use of a pump which introduces the fluid into the uterus under pressure.
In the present case, the procedure was performed using a Bard Hystero-Flo Pump, a device manufactured by defendant C.R. Bard, Inc. The device consists of several tubes and a pump. Two of the tubes, located at one end of the device, are inserted into bags of fluid suspended from an IV pole. Fluid flows from the bags through the tubes to a point where they connect at what is called a Y-adaptor. Below the Y-adaptor is a diaphragm pump. A single tube leads from the pump, bringing fluid to the scope and then into the uterus.
The pump is energized by gas. In this case, defendants used a supply of nitrogen gas located in the ceiling of the operating room. The gas flows from its source to a regulator and from the regulator the gas moves through a tube, the gas line, to the diaphragm pump. Gas that has powered the pump then flows out of the system through an open exhaust line into the atmosphere.
As previously indicated, the scope has a lens on its functioning end. There are two ports in the wall of the scope upstream from the functioning end. One port is the inflow port, i.e., it is connected to the line carrying fluid from the diaphragm pump. The fluid, under pressure, enters the uterus through a fitting on the end of the scope. The second port is the outflow port. Excess fluid is evacuated from the uterus through suction tubing attached to the outflow port. *fn1 Sometimes gravity is used to evacuate the fluid, and the excess fluid flows through the suction tubing into a pail. On other occasions, a suction canister is used to facilitate evacuation.
In the present case, gas entered through Angelina Chin's body cavity and into her circulatory system. Air bubbles formed in her blood vessels and killed her almost immediately. All parties accept the theory that the exhaust line was the source of the gas which killed Mrs. Chin.
The evidence established that the exhaust line, when it comes from the manufacturer, is clipped to the gas line, i.e., the line that carries gas from the regulator to the diaphragm pump. The exhaust line begins at the diaphragm pump, and it is forty-five inches long. Three clips hold the exhaust line to the gas line and the last clip is within an inch of the outflow end of the exhaust line. The evidence established that the exhaust line was properly clipped when it left the manufacturer, but the last clip was not on the apparatus when it was used in the Chin procedure. The absence of the last clip caused twenty-seven inches of the exhaust line to hang loose. The theory is that in its loose state the exhaust line could have been mistaken for a suction line. A jury could conclude that one of the nurses removed the clip or caused it to come off the line. There is evidence from which a jury could conclude that Dr. Goldfarb attached the loose exhaust line to the outflow port, although Dr. Goldfarb denied that he did so. There is evidence from which a jury could conclude that one or more of the nurses assisting in the procedure unclipped the exhaust line and made it possible for that line to be within the operative field, thereby facilitating its erroneous connection to the outflow port. There is also evidence to support a finding that one of the nurses connected the loose exhaust line to a suction canister which may have been connected to the scope through suction tubing.
The evidence established that the two nurses the hospital assigned to assist in the procedure, nurse Charles and nurse Leib, had no experience regarding the use of the Bard apparatus and had not attended hospital training sessions regarding its use. The evidence established that the supervising nurse who made the assignments was unaware of the experience or lack thereof of nurses Charles and Leib regarding this equipment. The evidence also established that, because of their inexperience, Charles or Leib asked nurse Hofgesang to assist them. During the procedure, Hofgesang, located to the patient's left, received the apparatus from Charles, the scrub or sterile nurse, who was located on the patient's right. Charles had removed the equipment from the Bard package, which Leib had opened, and handed the apparatus to Hofgesang who connected the tubes to the fluid bags and also connected the hospital's gas line to the regulator.
As previously indicated, the trial court ruled that this case is governed by the principles of Anderson v. Somberg, supra, and we begin our analysis with a Discussion of it. Anderson arose out of back surgery performed by defendant, Dr. Somberg. During the procedure the tip of an instrument, an angulated pituitary rongeur, broke off in Anderson's spinal canal and lodged in his spine. 67 N.J. at 294. He sued Dr. Somberg, the hospital, the manufacturer of the rongeur and the rongeur's distributer. Id. at 295.
A jury returned a verdict of no cause as to each defendant. The Appellate Division reversed, on the ground that the trial court's instruction to the jury was inadequate. Anderson v. Somberg, 134 N.J. Super. 1, 5 (App. Div. 1973). The majority opinion stated:
Reason and common sense dictate that the jury additionally should be charged that under the peculiar circumstances of this case the occurrence itself indicates liability on the part of one or more of the defendants, and that the burden should be shifted to defendants as they are most likely to possess knowledge of the cause of the accident. Each defendant has the duty to come forward with explanatory evidence. NOPCO Chemical Div. v. Blaw-Knox ...