On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8425-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Simonelli and Hayden.
By leave granted, defendants JFK Medical Center, and Marilyn Bien-Aime, R.N., Agnes Romulo, R.N., Narciso Magsino, R.N., Roel-Paulo Imperio, R.N., Gale Wasylyk, L.P.N., and Kelly Hayes (collectively, the nurses) appeal from an order of January 6, 2012 denying the nurses' motion for summary judgment as the result of a ruling that the burden-shifting analysis adopted by the Court in Anderson v. Somberg, 67 N.J. 291, cert. denied, 423 U.S. 929, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975), was applicable to plaintiffs' case. The nurses have been joined in their appeal by defendants Balwant Saini, M.D. and James Street Anesthesia Associates insofar as the court's order was based upon the applicability of Anderson v. Somberg. We reverse.
The facts of the matter are exceedingly unfortunate. On November 14, 2006, decedent, Khadijatu Savage, a forty-nine year old woman, was scheduled to undergo right knee arthroscopy by Dr. Walter Urs at the same-day surgery department of JFK Medical Center. The anesthesiologist for the procedure was defendant, Dr. Balwant Saini, who administered either a spinal or epidural anesthesia. Shortly after the operative procedure was commenced, decedent's heart rate slowed dramatically, her blood pressure dropped, and she went into cardiac arrest. Efforts at resuscitation were commenced, but decedent's heart rhythm and cardiac output were not restored until forty-five to sixty minutes had elapsed. By then, decedent had sustained profound hypoxic-ischemic encephalopathy. As the result of her brain injury, she remained in a persistent vegetative state until her death on April 3, 2009 as the result of pneumonia.
Investigation of the cause of decedent's cardiac arrest has been made difficult as the result of the fact that the intraoperative anesthesia record and the code sheet pertaining to decedent's care have been lost. Nonetheless, expert reports have been exchanged by plaintiffs and defendants.
Plaintiffs' expert, Michael J. Partnow, M.D., has opined that decedent's sudden drop in blood pressure and pulse were, within reasonable medical certainty, a reaction to the anesthetic, and that the duration of her cardiopulmonary arrest prior to successful resuscitation was the cause of decedent's coma and death.
Plaintiffs' expert, Brian G. McAlary, M.D., also discussed in his report the causes of decedent's cardiac arrest, noting that the results of various tests largely ruled out causes of the intra-operative arrest such as brain hemorrhage, metabolic/electrolyte derangement, myocardial infarction, vasovagal process, pulmonary or cerebral embolism, or an anaphylactic reaction to Ancef administered by Dr. Saini. The doctor noted that the admitting ICU physician had written in his admitting note that he saw no apparent etiology other than "reaction to the epidural anesthesia." Reaching specific conclusions regarding liability, Dr. McAlary stated:
1. It is probable that the cardiopulmonary arrest sustained by Ms Savage was preventable, and due to substandard care on the part of Dr. Saini, including:
a. The failure to appreciate the risks associated with her obesity and decreased intra-vascular volume (IVV).
b. The failure to provide adequate expansion of IVV pre and post the neuraxial anesthetic.
c. The failure to maintain adequate perfusion to the brain and heart in a patient having a post neuraxial anesthetic induced sympothectomy that was clearly both foreseeable, and treatable had ...