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Banks v. Sunrise Hospital12/17/2004
ances enumerated in NRS 41A.100(1)(a) through (e), which embody former res ipsa loquitur principles. The majority concludes that the district court properly instructed the jury under NRS 41A.100(1)(d). Paragraph (d) forgives the expert testimony requirement when the injury occurs "during the course of treatment to a part of the body not directly involved in the treatment or proximate thereto." The majority embraces this provision, reasoning that Mr. Banks's brain was not proximately or directly related to his rotator cuff surgery. I respectfully disagree.
To explain, the damage claim in this case was based upon profound and irreversible brain injury secondary to complications of general anesthesia. The use of general anesthesia, i.e., the sedation of the central nervous system, was part and parcel of the surgical treatment of the patient. Because sedation of the central nervous system constitutes treatment directly involving the brain, NRS 41A.100(1)(d) is not implicated.
CONCLUSION
In my view, the district court erred in the construct of its spoliation instruction and in its res ipsa loquitur instructions under NRS 41A.100(1)(d). Accordingly, while I agree with the majority in all other respects, I would reverse and remand this matter for retrial.
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