On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2522-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 30, 2007
Before Judges Coburn and Fuentes.
Plaintiff Richard Alcalde*fn1 appeals from a no-cause verdict delivered by a jury in this medical malpractice suit against defendant Dr. Bernard Henson. Plaintiff argues on appeal that the trial court erred by refusing to charge the jury on the legal concept of res ipsa loquitur, and by denying his motion to exclude defendant's expert's testimony as a net opinion. We reject these arguments and affirm.
The claims against Dr. Henson stem from the first of two surgical procedures performed on plaintiff by defendant Dr. Hooshang Kipiani.*fn2 Both surgeries took place at St Joseph's Wayne Hospital; Dr. Kipiani was the primary surgeon, with Dr. Henson assisting. The first surgery was intended to address plaintiff's diverticulitis, a medical condition described as an inflammation and/or infection of the colon.
From the medical evidence presented to the jury concerning the actual operation, it appears that the two physicians did not have any reason to suspect that anything had gone wrong during the first surgery. Plaintiff's heart rate and blood pressure were stable and within normal range; there were no visible signs of unexpected trauma or unusual bleeding. Despite the absence of such evidence, it is clear that in the course of this surgery plaintiff's spleen was perforated, causing internal bleeding, and requiring a second operation to correct the problem.
Dr. Mohammad S. Ibrahim*fn3 was the physician who first detected the signs of trouble. When Dr. Ibrahim examined plaintiff after the surgery, plaintiff was in severe pain, had low blood pressure, an accelerated heart rate, and his abdomen was distended. He also had a high hemoglobin count which is indicative of massive post-surgical abdominal bleeding.
Dr. Kipiani returned to the hospital about two hours after Dr. Ibrahim reported the problem to him. In the interim, plaintiff received a transfusion of ten units of blood, along with intravenous antibiotics, fluids and pain medication. Dr. Kipiani concluded that the unexplained internal bleeding required emergency surgery. In the course of this second surgery, Dr. Kipiani discovered that the source of the bleeding was a tear or fracture in the spleen.
In his cause of action against Dr. Henson, plaintiff alleges that Henson deviated from the standard of care applicable to an assistant-surgeon, by failing to detect the perforation to his spleen. Specifically, plaintiff argued that the post-operative symptoms described by Dr. Ibrahim are indicative of a massive trauma to the spleen, easily detectable by any competent surgeon. In response, Dr. Henson presented evidence that plaintiff's vital signs and other relevant medical data during the first surgery failed to show any signs of the type of trauma described by plaintiff's expert.
During the charge conference, plaintiff's counsel requested that the trial court charge the jury on the legal concept of res ipsa loquitur. After hearing argument on the matter, Judge Humphreys reserved decision. He delivered the following oral opinion from the bench two days later:
The Court has considered the arguments of counsel on the record. The request is denied. Negligence ordinarily must be proved and never presumed. Buckelew v. Grossbard, 87 N.J. 512, 525 (Sup. Ct. 1981). However the doctrine of res ipsa permits an inference of negligence where, one, the ordinance itself ordinarily bespeaks negligence, two, the instrumentality was within the defendant's exclusive control, and, three, there is no indication of circumstances that the injury was the result of the plaintiff's own voluntary act or neglect. Buckelew at Page 525, see also Szalontai, v. Yazbo, 183 N.J. 386 (Sup. Ct. 2005).
The res ipsa has been applied in a medical malpractice context. For example, where a surgical sponge is left in a patient after an operation it's reasonable to say that someone has been negligent. Buckelew at Page 526.
If the evidence presents a factual issue as to how an accident or incident occurred, and the res ipsa applies only to one version of the accident or incident, the Court should give a conditional res ipsa instruction under which the jury is instructed to decide how the accident or incident happened and to consider res ipsa only if it finds that the accident or incident occurred in a manner ...