In its unpublished opinion dated November 17, 2021, the Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) stated: “As noted above, we assume, as plaintiff argues, that Marilyn fell from the operating table. That at best means she was entitled to the benefit of a shifting of the burden to those in the operating room to demonstrate they were not negligent. Anderson, 67 N.J. at 302. That does not mean plaintiff was entitled to an assumption that all her later physical complaints about rib fractures, chest pains, or a facial bruise were caused by the fall. That is, Anderson does not shift the burden to defendants to show what injuries were or were not either caused or aggravated by the fall; it only relieves an unconscious patient from proving the negligence of those around her when some presumptively negligent act occurred. Id. at 298. Even if Anderson applied here – a question we need not decide – plaintiff remained obligated to prove that whatever injuries Marilyn complained of were caused by the fall and not by some other force.”
“This is particularly true when considering the surrounding circumstances. There is no dispute that within a very short time before the fall, both plaintiff and hospital staff performed CPR on Marilyn. Dr. Hecht has asserted that for someone of Marilyn’s age the type of rib fractures revealed in the x-rays and CT scan are common. To the extent there is evidence that Marilyn complained of chest pains after the fall, plaintiff has provided nothing to link those complaints to the fall instead of the CPR or the surgery itself. No jury should be permitted to speculate – without the assistance of expert testimony – that any fractures or chest pains resulting from one force instead of another.”
The New Jersey Appellate Court held: “In light of the particular factual circumstances presented in this case, we conclude that the trial judge correctly granted summary judgment dismissing the complaint. Affirmed.”
The Underlying Facts
On November 26, 2017, eighty-one-year-old Marilyn was found unconscious in her home. She was slapped on her face in an attempt to revive her. CPR was performed, which brought Marilyn back to consciousness. Marilyn was transported to the defendant hospital. While at the hospital, Marilyn again lost consciousness. Hospital staff revived Marilyn after performing CRP for about eight minutes. The next day, Marilyn underwent a dual chamber pacemaker procedure that took approximately four hours. Before the procedure was concluded, a technician was called in to take chest x-rays while Marilyn was still unconscious. While sliding an x-ray plate underneath Marilyn, the technician felt a “shift towards the left side of the table,” and immediately asked for assistance from nurses.
According to the technician, they conducted a “controlled descent” of Marilyn’s body from the table to the floor at a physician’s suggestion. Plaintiff asserted that Marilyn fell from the operating table – and wasn’t lowered by a controlled descent – and that the occurrence was a result of negligence of those present.
Marilyn died a few months later for unrelated reasons.
Source Pepperman v. Robert Wood Johnson University Hospital New Brunswick, Docket No. A-1177-20.
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