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Samuel Feika, Sr., Administrator Ad Prosequendum To the Estate v. Dr. Balwant Saini

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 24, 2012

SAMUEL FEIKA, SR., ADMINISTRATOR AD PROSEQUENDUM TO THE ESTATE OF KHADIJATU SAVAGE AND SAMUEL FEIKA, SR., IN HIS OWN RIGHT, AND SAMUEL FEIKA, JR., IN HIS OWN RIGHT, PLAINTIFFS-RESPONDENTS,
v.
DR. BALWANT SAINI, M.D., JFK MEDICAL CENTER, JAMES STREET ANESTHESIA ASSOCIATES, MARILYN BIEN-AIME, R.N., AGNES ROMULO, R.N., NARCISO MAGSINO, R.N., ROEL-PAULO AMPERIO, R.N. (I/P/A ROEL-PAULL IMPERIO, R.N.), GALE WASYLYK, L.P.N., AND KELLY HAYES, DEFENDANTS-APPELLANTS.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8425-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 17, 2012

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.

I.

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 timely and aggressive pressor therapy been employed.

d. The failure to safeguard the airway with intubation prior to the patient's having sustained loss of protective airway reflexes, thereby sustaining likely aspiration of gastric contents.

2. The preventable aspiration was the direct cause of Ms Savage's subsequent pneumonia, resulting sepsis, and dependence on assisted mechanical ventilation.

Neither expert opined that the conduct of any of the nurses was negligent.

Experts retained on behalf of Dr. Saini reached different conclusions. Albert N. Ferrari, Jr., M.D., noted that:

Cardiac arrest following spinal anesthesia is a known complication occurring in 0.1% of cases. The etiology of the cardiac arrest in this setting is poorly understood although fluid balance is considered a possibility.

The doctor opined that Dr. Saini had complied with accepted standards of care both in maintaining an appropriate fluid balance and in his immediate response to decedent's cardiac arrest. The doctor also offered point-by-point rebuttals to the allegations of negligence contained in Dr. McAlary's report.

Marc Melamed, M.D., another of Dr. Saini's experts, discussed and ruled out various causes of decedent's cardiac arrest, concluding: "Unfortunately, Ms. Savage had a disastrous outcome following an anesthetic procedure despite no deviation from the standard of care. Although rare, complications do occur even when no mistakes are made." Dr. Gerald S. Lefever, M.D., rebutted the opinions of Dr. McAlary, and he found no negligence on the part of Dr. Saini. He offered no opinion as to the cause of decedent's cardiac arrest.

Following the completion of discovery, JFK Medical Center and the nurses moved for summary judgment on plaintiff's claims of medical/nursing malpractice, arguing that none of plaintiffs' experts had found negligence on their part, and for summary judgment on behalf of nurses Bien-Aime, Romulo and Imperio, nurses who had not been in the operating room, on plaintiffs' claims of spoliation of evidence. Following argument, the court found Anderson v. Somberg to apply to plaintiffs' action, and thus denied defendants' motion for summary judgment on claims arising from allegations of medical/nursing malpractice. The court granted summary judgment on plaintiffs' claims of emotional distress and the spoliation claims against Bien-Aime, Romulo and Imperio. Additionally, it granted summary judgment on direct claims against James Street Anesthesia Associates, preserving any claims of vicarious liability for trial. These last three rulings are not subjects of the present interlocutory appeal.

II.

On appeal, all defendants urge us to find Anderson v. Somberg to be inapplicable to the present action. We agree with defendants' position.

In Anderson, the plaintiff was undergoing spinal surgery, performed by Dr. Harold Somberg, when the tip of a pituitary rongeur used by the doctor in the surgery broke off in the plaintiff's spinal canal, causing medical complications that required further surgery. Suit was filed on the plaintiff's behalf against Dr. Somberg, alleging medical malpractice by causing the rongeur to break; against the hospital, alleging that it had furnished the doctor with a defective instrument; against the rongeur's distributor, alleging breach of warranty; and against the rongeur's manufacturer, alleging strict liability for product defect. Anderson, supra, 67 N.J. at 294-95. Following trial, the jury found no liability on the part of any of the defendants. Id. at 297. On appeal, we ordered a new trial. Ibid. A plurality of the Supreme Court affirmed, agreeing that "at the close of all the evidence, it was apparent that at least one of the defendants was liable for plaintiff's injury, because no alternative theory of liability was within reasonable contemplation." Id. at 298. Adopting a theory akin to res ipsa loquitur and shifting the burden of proof, the Court held:

In the ordinary case, the law will not assist an innocent plaintiff at the expense of an innocent defendant. However, in the type of case we consider here, where an unconscious or helpless patient suffers an admitted mishap not reasonably foreseeable and unrelated to the scope of the surgery (such as cases where foreign objects are left in the body of the patient), those who had custody of the patient, and who owed him a duty of care as to medical treatment, or not to furnish a defective instrument for use in such treatment can be called to account for their default. They must prove their nonculpability, or else risk liability for the injuries suffered. [Ibid.]

The Court limited its holding by stating that the rule it had adopted "would have no application except in those instances where the injury lay outside the ambit of the surgical procedure in question; for example, an injury to an organ, when that organ was itself the object of medical attention, would not by itself make out a prima facie case for malpractice or shift the burden of proof to defendants." Id. at 302 (citing Farber v. Olkon, 40 Cal. 2d 503, 254 P.2d 520, 524 (1953)). Significantly, the Court also stated: "we note that at the close of all the evidence, no reasonable suggestion had been offered that the occurrence could have arisen because of . . . some act of nature; that is, there was no explanation for the occurrence in the case save for negligence or defect on the part of someone connected with the manufacture, handling, or use of the instrument." Id. at 303.

The Court followed Anderson in Estate of Chin v. St. Barnabas Medical Center, 160 N.J. 454 (1999), a case in which a fatal injury resulting from the mis-connection of a nitrogen line to a hysteroscope prior to a surgical procedure causing an embolism "was certainly the result of the negligent use of a medical instrument, but it was unclear who was at fault." Id. at 459. There, the Court held that the trial judge had erred, after instructing the jury to shift the burden of proof to the defendants pursuant to Anderson and to apply their common knowledge in determining the nurses' liability for the mis-connection, in reversing himself and granting judgment notwithstanding the verdict to the defendant hospital and nurses and imposing full liability solely on the defendant doctor. Id. at 465-66, 471. Significantly, the Chin Court held that, under principles established in Anderson, a plaintiff must show three things to shift the burden of proof:

First, the plaintiff must herself be entirely blameless. The fact pattern to which the principles of Anderson most readily apply is where a plaintiff was "clearly helpless or anesthetized" when her injury occurred. Second, the injury must be one that bespeaks negligence on the part of one or more of the defendants. Third, all the potential defendants must be before the court. [Id. at 465 (citations omitted).]

Contrary to plaintiffs' position in the present matter, we are satisfied that the second of Anderson's conditions has not been met here, and that there is inadequate proof that decedent's injury was one that bespoke negligence. Although the experts for Dr. Saini may not have been able to explain the mechanisms that caused decedent's cardiac arrest, we cannot conclude that the risk of such an event was not a reasonably foreseeable risk of the procedure. Anderson, supra, 67 N.J. at 298; see also Blitz v. Hutchinson, 252 N.J. Super. 580, 588-89 (App. Div. 1991). As defendants note, death was listed as a foreseeable risk of anesthesia on the consent form executed by decedent prior to her surgery. And Dr. Ferrari observed: "Cardiac arrest following spinal anesthesia is a known complication occurring in 0.1% of cases. The etiology of the cardiac arrest in this setting is poorly understood[.]" Plaintiff's experts did not contest this point.

As a consequence, we find that the court was mistaken to find Anderson to be available to plaintiffs as a means for obtaining a verdict against one or more of the defendants because, in this case, burden shifting might act to "impose an equal hardship on an innocent defendant as on an innocent plaintiff." Anderson, supra, 67 N.J. at 302. We do not find that the loss of evidence affects our decision since, as defendants point out, the loss of the evidence may elucidate the origins of decedent's condition, but it in no way contributed to its occurrence.

III.

We are also satisfied that the court erred in declining to grant summary judgment to the defendant nurses and to the hospital insofar as its liability was premised on negligence by the nurses. Unlike Chin, a case in which hoses were wrongly connected, whether the nurses breached their duty of care in connection with their treatment of decedent in the present matter is not susceptible to lay evaluation, since their carelessness would not be "'readily apparent to anyone of average intelligence and ordinary experience.'" Chin, supra, 160 N.J. at 469-70 (quoting Rosenberg v. Cahill, 99 N.J. 318, 325 (1985)). Rather, any issue of the nurses' negligence would be related to "'technical matters peculiarly within the knowledge'" of practitioners in the nursing field. Chin, supra, 160 N.J. at 470 (quoting Sanzari v. Rosenfeld, 34 N.J. 128, 142 (1961)). But as the nurses noted in arguing their motion, no expert even mentions their conduct. Accordingly, summary judgment in their favor should have been entered.

We do not regard the loss of the intraoperative anesthesia records and the code sheet as affecting this result. We conclude that it would be appropriate for the trial court to instruct the jury that it can draw a negative inference as the result of the absence of the records. State v. Clawans, 38 N.J. 162, 170 (1962) (establishing principle applicable to evidence or witnesses); Cohen v. Cmty. Med. Ctr., 386 N.J. Super. 387, 401 (App. Div. 2006) (applying Clawans in a civil context); Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir. 2002) (applying principle regardless of moral culpability). Nonetheless, we are not satisfied that such an inference can be drawn in circumstances in which the experts have posited no basis for liability. As the result of the absence of such evidence, any verdict against the nurses would, perforce, be based on speculation. We therefore find that summary judgment was mistakenly denied to the hospital and defendant nurses in this matter.

Reversed and remanded for trial.

20120924

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