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Alcalde v. Kipiani


May 5, 2008


On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2522-02.

Per curiam.


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 which fits the doctrine. Allendorf v. Kaiserman Enterprises, 266 N.J. Super. 662, 669 (App. Div. 1993).

However, if res ipsa is to be relied upon, there must be expert opinion to the effect that the medical community recognizes that the injury would not have occurred without negligence, so as to establish the first element of res ipsa. Roper v. Blumenfeld, 309 N.J. Super. 219, 231 (App. Div. 1998).

In 1993 the Appellate Division reviewed the -- the issue of the application of res ipsa to medical malpractice cases. In Smallwood v. Mitchell, 264 N.J. Super. 295 (App. Div. 1993), the Court said, I'm going to quote to some extent, summarize to some extent from Page 298, the decision in Buckelew was not an invitation to a broader use of res ipsa in medical malpractice cases than occurs in ordinary negligence matters.

Res ipsa is a doctrine fashioned for limited application, in special situations. It is not meant to be applied in every situation in which a medical procedure has an untoward result with an unknown cause. Rather, in the Supreme Court's terms, the expert testimony introduced to satisfy the first element of the doctrine must be, quote, and the quote is from the Buckelew case, "to the effect that that medical community recognizes that an event does not ordinarily occur in the absence of negligence," omission marks.

His orientation is especially useful in the type of case presented here and where there's evidence that the type of untoward result experienced by the plaintiff occurs in a small percentage of cases with no known cause.

We emphasize, the res ipsa doctrine does not bespeak an independent cause of action. It does not create liability. It is a device, the sole purpose of which is to place the issue of negligence before the jury in special situations where there's no direct evidence of negligence but where common experience suggests that the cause of the injury does not occur except as the result of negligent conduct.

Here the question of negligence was squarely before the jury with appropriate expert testimony addressing the issue, and the jury simply rejected plaintiff's thesis that the defendant had been professionally negligent. Smallwood, Page 298, 299.

Applying these principles here, the record is bereft [ ], of any evidence that the medical community recognizes that injury to the spleen does not ordinarily occur in the absence of negligence.

In fact, the evidence is to the contrary, namely, that injury to the spleen does occur in a number of cases and without any negligence on the part of the surgeon.

Further, the evidence as a whole would not permit a reasonable inference that injury to the spleen in an operation of this type ordinarily bespeaks negligence.

The Court is mindful that Dr. Betheler's testimony could be parsed, [ ] to mean that a serious injury of the spleen, which is not recognized when the surgeon is over the abdomen, ordinarily does not occur without negligence.

However the Court is also mindful of the admonitions in the Smallwood decision that the res ipsa doctrine should not be expanded, that it does not bespeak an independent cause of action. That's generally applied where there's no direct evidence of negligence. That is a limited doctrine, special situations, limited applications.

The present case is, in this Court's opinion, a very close case. The jury could go either way. Adding a res ipsa charge could put the Court's heavy thumb on the case in favor of the plaintiff.

The jury has the testimony of the experts on this issue. They have extensive cross-examination of the experts. They don't need, and they should not have a charge in this case which might push the jury one way or the other. For those reasons, the res ipsa charge or a conditional res ipsa charge, both of those are denied.

We are in complete agreement with Judge Humphreys's analysis and ultimate conclusion. Plaintiff's argument attacking as a net opinion the testimony of defendant's expert, Dr. Ronald A. White, lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


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