September 30, 2012

A decision was reached on September 24, 2012 in a New Jersey medical malpractice case that was appealed from the Superior Court of New Jersey. The case involved the issue of whether the trial judge properly permitted the burden of proof in the medical malpractice case to shift from the medical malpractice plaintiff(s) to the medical malpractice defendant(s).

A prior appellate decision helped establish New Jersey’s medical malpractice law that provides “… 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.” Anderson v. Somberg, 67 N.J. 291, cert. denied, 423 U.S. 929, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975).

The Facts Of  This Case

On November 14, 2006, a 49-year-old woman had right knee arthroscopic surgery at the same-day surgery department of a New Jersey hospital. The defendant anesthesiologist (Dr. Saini)  administered either a spinal or epidural anesthesia. Shortly after the operative procedure began, the woman’s heart rate slowed dramatically, her blood pressure dropped, and she went into cardiac arrest. Efforts at resuscitation were begun, but the woman’s heart rhythm and cardiac output were not restored until forty-five to sixty minutes had elapsed. By then, she 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.

Intriguingly, the intraoperative anesthesia record and the code sheet regarding the woman’s care were lost.

It was the opinion of one of the plaintiffs’ medical experts that the woman’s sudden drop in blood pressure and pulse were due to a reaction to the anesthetic, and that the duration of her cardiopulmonary arrest prior to successful resuscitation was the cause of her coma and death. Another of the plaintiffs’ medical experts noted that the results of various tests largely ruled out causes of the intra-operative cardiac arrest such as brain hemorrhage, metabolic/electrolyte derangement, myocardial infarction, vasovagal process, pulmonary or cerebral embolism, or an anaphylactic reaction to Ancef administered by the anesthesiologist.

It was the opinion of one of the defendant anesthesiologist’s medical experts that cardiac arrest following spinal anesthesia is a known complication occurring in 0.1% of cases. Another defense medical expert held the opinion that the anesthesiologist did not deviate from the standard of care and that complications, although rare, do occur even when no mistakes are made.

In deciding the present case, the appellate court noted that a medical malpractice plaintiff must show three things to shift the burden of proof to the medical malpractice defendant: First, the plaintiff must herself be entirely blameless, such as when 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.

The appellate court determined in the present case that the second prong was not met: “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 … As defendants note, death was listed as a foreseeable risk of anesthesia on the consent form executed by decedent prior to her surgery.” The appellate court further stated, “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.”


If you or someone you are close to have suffered injuries or harm as a result of medical malpractice in New Jersey or in another state in the United States, you should promptly find a New Jersey medical malpractice attorney or a local medical malpractice attorney in your state to seek answers to your medical malpractice questions.

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