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Banks v. Sunrise Hospital12/17/2004
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.
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
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