On certification to the Superior Court, Appellate Division, whose opinion is reported at 312 N.J. Super. 81 (1998).
The opinion of the court was delivered by: Handler, J.
This case requires the Court to consider the application of the doctrine first developed nearly twenty-five years ago in Anderson v. Somberg, 67 N.J. 291, cert. denied, 423 U.S. 929, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975). In that decision, a medical malpractice case, the Court held that where a blameless and unconscious patient suffers an injury, the defendants charged with malpractice or fault bear the burden of proving their non-culpability for the plaintiff's injury.
The case before the Court involves a patient who died from an air embolism when gas was introduced into her bloodstream during a surgical procedure. The nature of the fatal injury was such that it was certainly the result of the negligent use of a medical instrument, but it was unclear who was at fault. This medical malpractice suit was brought against all the defendants who had a possible role in the events leading to the patient's death: the doctor who performed the procedure; the nurses in the operating room; the hospital; and the manufacturer of the medical instrument used in the operation.
The central issue posed in this appeal is to what extent the burden of proof in respect of liability should shift to defendants rather than remain with plaintiff. In addition, we are asked to consider whether the doctrine of common knowledge, which allows the jury to determine the negligence of professionals without expert testimony concerning professional standards of care, is applicable to this case.
Angelina Chin died at the age of forty-five from a massive air embolism during a diagnostic hysteroscopy at St. Barnabas Medical Center. An hysteroscopy is a procedure used to determine abnormalities in a woman's uterus. The doctor uses an hysteroscope, a wand-like instrument with a lens at one end, to view the walls of a woman's uterus on a television monitor. The physician's view of the uterus is enhanced by stretching the uterine walls with a continuous flow of fluid into the uterus. Typically, this type of medical procedure involves minimal risk. In the case of Ms. Chin, however, gas was pumped into her uterus rather than fluid, causing the gas to be introduced into her coronary arteries and resulting in the air embolism that killed her. The record clearly demonstrates that the embolism was the direct result of an incorrect hook-up of the hysteroscope.
Ms. Chin's treating physician, defendant Dr. Herbert Goldfarb, performed the procedure using an hysteroscope manufactured by defendant C.R. Bard, Inc. This type of hysteroscope, called the Hystero-Flo Pump, uses a pump driven by compressed nitrogen to create a vacuum that forces fluid to be drawn into a tube. The fluid passes through the tube, into the hysteroscope unit and finally into the patient's uterus. In order to perform this function, the Bard Hystero-Flo Pump has several tubes. An "irrigation tube" draws fluid into the woman's uterus and a "suction tube" draws waste fluid out of the uterus. Both are connected to the pump. A third tube connects the nitrogen source to the pump. Lastly, an "exhaust hose" carries the by-product of the nitrogen that drives the pump; it is attached to the gas line coming off the pump. When the exhaust hose arrives from the manufacturer, it is attached by three wire clips to indicate that it should remain away from the operating field and remain non-sterile.
In addition to Dr. Goldfarb, three nurses were in the operating room during this procedure. Defendants Nurse Teresa Leib and Nurse Immacula Louis-Charles were assigned to the procedure. Because Leib and Louis-Charles had no experience, familiarity, or training on the Hystero-Flo Pump, they asked defendant Nancy Hofgesang, a nurse who had some experience with the equipment, to assist. She acted as circulating nurse, although she was not officially scheduled by the hospital to be there.
During Ms. Chin's operation, one of the tubes was incorrectly connected to the hysteroscope, causing a closed circuit pathway that permitted the nitrogen gas to enter Ms. Chin's uterus and resulted in the embolism. Defendants presented several theories regarding which tube was wrongly attached. Because Dr. Goldfarb removed the tubes from the pump shortly after Ms. Chin went into cardiac arrest, their exact configuration was ascertainable only by inference.
Plaintiff Robert Chin, individually and as administrator ad prosequendum of the Estate of Angelina A. Chin, brought suit against defendants Dr. Goldfarb, Nurses Leib, Louis-Charles, and Hofgesang, St. Barnabas Medical Center and C.R. Bard for the death of his wife. At trial, defendants presented conflicting testimony regarding which party or parties incorrectly hooked up the apparatus. At the close of evidence, defendant C.R. Bard moved for a directed verdict. The trial court granted the motion and none of the remaining parties argue that C.R. Bard is liable for the death of Ms. Chin.
The trial court submitted plaintiff's case to the jury under the principles set forth in Anderson v. Somberg, supra, 67 N.J. 291. The court instructed the jury that the entire burden of proof shifted to defendants, explaining that "there must be a verdict against at least one defendant in this case because obviously somebody did something wrong." The court also instructed the members of the jury that they were permitted to use their common knowledge as lay persons in deciding whether the nurses had in fact breached their duty of care to the decedent in this case. No expert testimony on the appropriate nursing standards of care was presented at trial.
The jury awarded plaintiff two million dollars in damages. It apportioned liability against the several defendants: Dr. Goldfarb, 20% liable; Nurse Leib, 20% liable; Nurse Hofgesang, 25% liable; St. Barnabas Medical Center, 35% liable. Nurse Louis-Charles was found not liable for the death of Ms. Chin. The trial court thereafter granted the hospital and nurses' motion for judgment notwithstanding the verdict, reasoning that the case was improperly submitted under Anderson v. Somberg, supra, and the doctrine of common knowledge. The trial court then entered a judgment against Dr. Goldfarb alone for the entire two million dollar judgment, plus interest.
Dr. Goldfarb appealed, and the Appellate Division reversed, ruling that the jury was properly instructed both in the doctrine of Anderson and in the doctrine of common knowledge. 312 N.J. Super. 81 (1998). The hospital and Nurses Leib and Hofgesang (hospital defendants) petitioned for certification, and plaintiffs cross-petitioned. ...