Born v. Eisenman, 29303
| Decision Date | 01 September 1998 |
| Docket Number | No. 29303,29303 |
| Citation | 114 Nev. 854,962 P.2d 1227 |
| Parties | Sharon BORN, Appellant, v. Eugene EISENMAN, M.D., and Sheldon Freedman, M.D., Respondents. |
| Court | Nevada Supreme Court |
Two surgeries were performed on appellant Sharon Born in January 1986. The first was a hysterectomy performed by respondent Dr. Eugene Eisenman during which complications developed because the right ureter had been ligated. The second surgery was performed by both Dr. Eisenman and respondent Dr. Sheldon Freedman to repair the ligated ureter. Born continued to experience pain in her abdomen and exploratory abdominal surgery was performed more than two years later. The surgeon who performed the exploratory surgery testified that he discovered that Born's small intestine was almost severed and opined that it was probably transected or transfixed in the surgery to repair the ureter, eventually causing the small intestine damage. It was his opinion that other internal bodily tissue surrounded the perforated intestine and permitted it to function substantially as it would have without the opening.
At trial, the district court precluded Born from presenting evidence to establish the applicability of the res ipsa loquitur doctrine as now codified in NRS 41A.100. The district court also prohibited Born or her medical experts from referring to a case where a similar phenomenon was observed, but permitted the respondents to present testimony and argue that this condition could not have occurred as it is unknown to medical science.
We conclude that both rulings of the district court were erroneous. This compels us to reverse the judgment entered in this case and remand for a new trial.
On January 8, 1986, respondent Dr. Eugene Eisenman performed an abdominal hysterectomy (removal of the uterus) and left salpingo oophorectomy (surgical removal of a uterine tube and ovary) on appellant Sharon Born. Born was discharged on January 13, 1986. On January 16, 1986, Born presented to Sunrise Hospital emergency room complaining of severe pelvic pain. Dr. Eisenman ordered tests which indicated that Born's left ureter had a blockage.
Dr. Eisenman requested that respondent Dr. Sheldon Freedman, a board certified urologist, consult on Born's case. Dr. Freedman determined that Born's left ureter had been ligated by a suture at the time of the January 8, 1986 surgery. Dr. Freedman performed a left ureteroneocystostomy (surgical transplantation of the ureter to a different site in the bladder). During this procedure, Dr. Eisenman noticed that Born's right ovary was more diseased than originally thought and Dr. Eisenman performed a right oophorectomy (removal of the right ovary) Dr. Freedman and Dr. Eisenman testified that they both participated in the closure of the patient's abdomen after completing the surgery.
After the January 16, 1986 surgery, Born began complaining of pain. During the next two and one half years, Born continued to feel ill and specifically complained of pain in the left side of her abdomen. She sought treatment at both the UCLA Medical Center and the Mayo Clinic. On August 3, 1988, an exploratory laparotomy was performed by Dr. Donald Pointer and Dr. Richard Groom. During this procedure Dr. Pointer encountered a portion of the small bowel that was open. It was Dr. Pointer's opinion that the bowel had been transected or transfixed during the closure procedure performed by respondents on January 16, 1986. Dr. Pointer found that through the body's natural healing process, the bowel had been sealed by the omentum (internal tissue). Later in August 1988, a procedure was performed to repair the opening in Born's small bowel.
Born filed a complaint against Dr. Eisenman for negligently ligating her ureter during her hysterectomy, and a second complaint against Drs. Eisenman and Freedman for transecting or transfixing her small bowel during the surgical procedure to repair the ligated ureter. The complaints were consolidated for pretrial discovery and trial.
On March 14, 1996, a pre-trial conference was held, and the parties filed pretrial statements which set forth the facts each expected to prove at trial. Born stated in her pretrial memorandum the factual basis of the claims, and asserted that Dr. Eisenman was negligent in ligating her ureter when performing the hysterectomy, and that Drs. Eisenman and Freedman were negligent in transecting or transfixing the small bowel when the surgery to repair the ligated ureter was performed. Born asserted that the doctrine of res ipsa loquitur was applicable to both cases.
Drs. Eisenman and Freedman filed a joint pretrial memorandum and asserted that neither surgery was negligently performed. Respondents further asserted that if the small bowel was damaged, it was done by Dr. Pointer during the exploratory surgery and not during the second surgery performed by respondents, because it is difficult to identify the organs in an abdomen that has developed adhesions from prior surgeries. The respondents' primary defense was to dispute Born's condition as described by Dr. Pointer; they asserted that Born's
In their pretrial memorandum the respondents also asserted that the doctrine of res ipsa loquitur was not applicable to either surgery and that the district court should preclude reference to a medical case described in Edwards v. Quackenbush, 112 Colo. 337, 149 P.2d 809 (1944), where a similar condition to the one alleged by Born was discussed. A motion in limine was also filed to prohibit any reference to the Quackenbush case. After the pretrial conference, the district court entered an order precluding Born from presenting a res ipsa loquitur theory to the jury, and also ordered that the Quackenbush case would not be referred to or mentioned at trial.
Trial commenced on April 15, 1996, and continued through April 24, 1996. Born's expert witness, Dr. Joseph Schmidt, testified that Born's allegations of medical negligence were valid. Dr. Schmidt opined that during the surgery to repair the ligated ureter a suture was completely placed through the small bowel and within six to eight weeks after the surgery, the suture had worked all the way through the small bowel, leaving a gaping hole in the small bowel. The respondents' expert witnesses testified that if the suture had gone through the small bowel and then been tied off to close the incision, it would close the small bowel and cause an immediate bowel obstruction, and that such an obstruction would cause a distended abdomen, excruciating pain in the abdomen, projectile vomiting, and peritonitis. Because Born did not experience any of these extreme symptoms, respondents' experts stated that it was medically impossible to live for two-and-one-half years in the condition Dr. Schmidt described. They further stated that such a development as Born alleged was unknown to medical science.
After a short deliberation, the jury found in favor of respondents on both of the consolidated cases. Born filed a motion for a new trial asserting that Dr. Eisenman's attorney, Neil Galatz, made derogatory comments about Born's counsel and medical experts at the trial and that the remarks, in all probability, were heard by the jury.
We conclude that the district court erred in denying the application of the doctrine of res ipsa loquitur to the facts of the two surgeries and in prohibiting Born from referring to the Quackenbush case.
Applicability of the res ipsa loquitur doctrine.
The doctrine commonly known as res ipsa loquitur has been codified in NRS 41A.100(1)(d) and (e) and reads as follows:
1. Liability for personal injury or death is not imposed upon any provider of medical care based on alleged negligence in the performance of that care unless evidence consisting of expert medical testimony, material from recognized medical texts or treatises or the regulations of the licensed medical facility wherein the alleged negligence occurred is presented to demonstrate the alleged deviation from the accepted standard of care in the specific circumstances of the case and to prove causation of the alleged personal injury or death, except that such evidence is not required and a rebuttable presumption that the personal injury or death was caused by negligence arises where evidence is presented that the personal injury or death occurred in any one or more of the following circumstances:
....
(d) An injury was suffered during the course of treatment to a part of the body not directly involved in the treatment or proximate thereto; or
(e) A surgical procedure was performed on the wrong patient or the wrong organ, limb or part of a patient's body.
This court recently decided the case of Johnson v. Egtedar, 112 Nev. 428, 915 P.2d 271 (1996), and had occasion to review whether a res ipsa loquitur instruction should be given when similar facts to the case at bar were presented. In that case, we stated that the more traditional res ipsa loquitur doctrine has been replaced by NRS 41A.100, and we explained that the circumstances upon which the instruction should be given is governed by that s...
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