Banks ex rel. Banks v. Sunrise Hosp.
| Decision Date | 17 December 2004 |
| Docket Number | No. 38801.,38801. |
| Citation | 102 P.3d 52,120 Nev. 822 |
| Parties | Otho Lee BANKS, as Guardian Ad Litem for James Lee BANKS, Jr.; and James Lee Banks, Jr., Individually, Appellants/Cross-Respondents, v. SUNRISE HOSPITAL, Respondent/Cross-Appellant. |
| Court | Nevada Supreme Court |
Albert D. Massi, Ltd., and Patricia J. Bowling, Las Vegas; Myers & Gomel, P.C., and Jeffrey R. Gomel, Las Vegas, for Appellants/Cross-Respondents.
Dennett & Winspear, LLP, and Ryan L. Dennett, Las Vegas; Hall, Prangle & Schoonveld, LLC, and Kenneth M. Webster, Las Vegas; Cooper & Scully, P.C., and R. Brent Cooper and Diana L. Faust, Dallas, Texas, for Respondent/Cross-Appellant.
Before the Court En Banc.
On August 25, 1995, James Banks, Jr. (James), while undergoing rotator cuff surgery at Sunrise Hospital, suffered cardiac arrest. James has since that time persisted in a permanent vegetative state. James and his guardian ad litem, Otho Lee Banks (collectively, Banks) sued Sunrise Hospital, the surgeon and the anesthesiologist. The surgeon and anesthesiologist settled with Banks shortly before trial. A jury found Sunrise liable for James's injury and awarded substantial damages. Subsequently, the district court reduced the jury award by the sums paid by the surgeon and the anesthesiologist in settlement of Banks's claims against them and entered judgment in that amount. It later denied Sunrise's motion for a new trial.1 Sunrise appeals, alleging that various reversible errors occurred at trial, and Banks cross-appeals, challenging the district court's reduction of the jury award.
We conclude that Sunrise has failed to demonstrate error that would entitle it to a reversal or a new trial. We also conclude that the district court properly reduced the jury award by the sums paid in settlement by the surgeon and the anesthesiologist. Accordingly, we affirm the district court's judgment and order.
On August 25, 1995, fifty-one-year-old James Banks, Jr., was admitted to Sunrise Hospital for rotator cuff surgery. Prior to the surgery, the orthopedic surgeon, Dr. James Manning, discussed with James the risks of the surgery. Additionally, Dr. Robert L. Kinsman, the anesthesiologist, discussed the risks associated with the use of anesthesia. James signed an informed consent form that detailed the risks associated with surgery and with anesthesia.
Doctors performed surgery on James in operating room number 8, utilizing the hospital's equipment, which included a Narkomed II anesthesia machine. The Narkomed II provides oxygen and anesthetic agents to patients. Only anesthesiologists are qualified to operate the Narkomed II. Dr. Kinsman, an independent contractor hired by Sunrise to operate the equipment during James's surgery, utilized the equipment to anesthetize James and to monitor his physiological condition.
Immediately before James's surgery, Dr. Manning performed surgery on a different patient in operating room number 8, for which Dr. Kinsman was also the anesthesiologist and had used the same equipment. During the course of the first surgery, the equipment presented no problems. Dr. Kinsman checked the anesthesia and monitoring equipment before using it in James's surgery. During the course of James's surgery, Dr. Kinsman monitored James's condition continuously. Near the end of surgery, Dr. Kinsman noticed a decrease in James's blood pressure. Concerned that the blood pressure would continue to decrease, Dr. Kinsman turned off the nitrous oxide, decreased the anesthesia and increased the oxygen. About a minute later, James's blood pressure dropped again. Dr. Kinsman administered Robinal to increase the heart rate, which would then increase blood pressure, but to no avail. As James's blood pressure was still dropping, Dr. Kinsman turned off all of the anesthetic agents and gave James one hundred-percent oxygen. He also administered ephedrine to increase the pulse rate and blood pressure. Dr. Kinsman checked the endotracheal tube, the circuit ventilation of the Narkomed II and the placement of the intravenous tube (IV) in an attempt to find out what was wrong. After a second administration of ephedrine, James went into cardiac arrest. Dr. David Navratil, a cardiologist, was summoned and assisted Doctors Manning and Kinsman in an effort to resuscitate and stabilize James. Physicians attempted a precordial thump to shock James's heart back to a normal rhythm, attempted cardiopulmonary resuscitation, gave James atropine to get his heart started and administered electrical shock twice before James was finally resuscitated. Concerned that the open shoulder wound would become infected, and to alleviate the need for future surgeries, physicians finished the surgery. Dr. Kinsman was unsure of the cause of James's cardiac arrest but stated that James was stable for completion of the shoulder surgery. The physicians continued to use the same equipment to complete the surgery. Following surgery, James failed to regain consciousness and has since persisted in a permanent vegetative state.
Immediately after the incident, Sunrise completed an occurrence report. The report did not indicate any problems with the anesthesia equipment, and therefore, the equipment continued to be used in Sunrise's operating rooms for several months following James's injury until November 1995, when Sunrise sold the Narkomed II anesthesia machine involved in James's surgery, along with several other Narkomed II machines, to the same buyer. The sale was pursuant to a contract executed by Sunrise several months before James's surgery. As part of the construction of new operating rooms, Sunrise's parent corporation had contracted to purchase new anesthesia equipment to standardize the equipment and as part of the normal replacement of equipment. Prior to the transfer, Sunrise received no complaints concerning any of the equipment.
On April 24, 1996, James and Otho Lee Banks, as guardian ad litem for James, brought negligence claims against Sunrise, Dr. Kinsman and Dr. Manning in a complaint to the Medical Legal Screening Panel. Banks did not allege negligent maintenance or any cause of action concerning equipment malfunction. Banks relied upon an affidavit of anesthesiologist Dr. Casey Blitt, who stated that Dr. Kinsman's care fell below the standard of care in that he failed to "recognize, respond to and reverse decreasing blood pressure and pulse rate in the absence of blood loss," and that he failed "to use appropriate resuscitation protocol including, but not limited to[,] failure to use the appropriate drugs of choice in this setting." Dr. Blitt further opined that James "sustained permanent, irreversible hypoxic brain damage." The Panel determined that there was no reasonable probability of medical malpractice on the part of Dr. Manning or Sunrise, but was unable to reach a decision as to Dr. Kinsman. Shortly thereafter, Banks sued Dr. Manning, Dr. Kinsman and Sunrise. The complaint did not allege negligent maintenance against Sunrise, although it did contain a Doe/Roe allegation of negligent maintenance of the equipment.2
On March 2, 1999, nearly four years after James's injury and more than two years after filing the complaint, Banks was granted leave, over Sunrise's objection, to file a first amended complaint in which Banks asserted an additional claim of negligence pertaining to the anesthesia equipment. The district court directed Banks to file a second amended complaint alleging faulty or negligent maintenance of equipment and to also include the previously alleged res ipsa loquitur claim. The district court dismissed all other claims. On the eve of trial, Banks settled with both Dr. Manning and Dr. Kinsman.
Before trial, Banks sought sanctions against Sunrise based upon Sunrise's failure to preserve the anesthesia equipment that had been used during James's surgery. The district court determined that Sunrise's failure to identify the specific machines used during James's surgery before selling the anesthesia equipment constituted spoliation of evidence and so, as a sanction the district court instructed the jury that:
Sunrise Hospital had a duty to identify all of the anesthesia equipment and monitors which were used in the Banks surgery. Defendant Sunrise failed in this duty and because of its failure, no independent review or inspection of the equipment could ever be done. You may infer that had the equipment been preserved and tested that it would have been found to be not operating properly.
The first jury trial resulted in a mistrial because of a hung jury. The case was reassigned to another judge, who, over Sunrise's objection, refused to reconsider the above-described sanction excluding evidence. At the second trial, the jury rendered a verdict in favor of Banks, awarding $5,412,030.88 in damages, which totaled $6,903,044.61 after adding the prejudgment interest on the past damages. The district court subsequently reduced the jury award by the combined $1.9 million paid in settlement by Doctors Manning and Kinsman3 and entered a second amended judgment in the amount of $4,825,450.17. The district court then denied Sunrise's motion for judgment notwithstanding the verdict or a new trial. Sunrise thereafter timely appealed from the second amended judgment and the order denying its new trial motion, assigning numerous errors in the district court proceedings. Banks also appealed, contesting the district court's reduction of the jury award by the sums paid in settlement of his claims against Doctors Manning and Kinsman.4
Sanctions and adverse inference instruction
Sunrise contends that the district court abused its discretion when it imposed sanctions against Sunrise for spoliation of evidence. We have held that "discovery sanctions are within the power of the district court and this court will not reverse the particular sanctions imposed absent a showing of abuse of discretion."5
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