Appellate Division Rules that “Anderson v. Somberg” Applies
On March 12, 2007 the Appellate Division decided the case of Gronostajski v. Sabin, et al., confirming that the principles of Anderson v. Somberg would apply even in a emergent “Code” situation. In Anderson, the patient was having back surgery, and, during the operation, a piece of one of the surgical instruments broke off and lodged in the spinal canal. None of the defendants, including the surgeon, the hospital, the manufacturer and/or the distributor of the instrument, accepted responsibility for the fact that it broke during the surgery. There, the Court held that if a patient is unconscious or helpless and suffers from a mishap not reasonably related to the surgery (such as in the case of a foreign body left in a patient), then it is up to the defendants to prove that each was not at fault for causing the injury. In other words, the burden of proof shifts from the plaintiff to the defendants.
In Gronostajski, the patient ‘coded’ and during the code a guide wire was inserted in the groin to introduce a catheter. Unfortunately, the guide wire was mistakenly never removed, and, the patient alleged he suffered numerous complications and died as a result. No one who participated in the ‘code’ admitted responsibility for leaving the guide wire behind. The defendants argued, in part, that the principles of Anderson do not apply in a sudden, emergency situation like a ‘code,’ and, that the failure to remove the guide wire constituted ‘excusable neglect’ in such a setting. The Court disagreed, finding that Anderson applies, as the patient was both unconscious and helpless when the guide wire was left in his groin, and, that all of the people who participated during the ‘code’ were named as defendants. Further, the Court ruled that merely because this was an emergency did not mean the defendants could exonerate themselves as the hospital, Robert Wood Johnson University Hospital, is a major teaching institution and there were numerous experienced physicians and medical personnel present who are paid and trained to deal with such emergencies. In such a situation, the burden of proof then switched to the defendants to essentially disprove that each was at fault for leaving the guide wire behind.
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