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Banks v. Sunrise Hospital12/17/2004
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 Kinsman 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.
DISCUSSION
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."
When a potential for litigation exists, "'the litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action.'" Here, James's cardiac arrest while under anesthesia and his subsequent persistent vegetative state put Sunrise on notice that an error may have occurred in the operating room, whether caused by the physicians or the equipment and, therefore, that litigation was foreseeable. Consequently, Sunrise had a duty to preserve information relating to the attending physicians and the equipment.
Here, although Sunrise had a prearranged contract to sell the anesthesia equipment, after James's injury , it was on notice that certain equipment could be the subject of litigation. In fact, if the equipment had been functioning properly, it is reasonable under any circumstance to infer that Sunrise would have wanted to preserve it in order to protect itself from a false claim of negligence. Moreover, the district court heard expert testimony that the medical industry was aware of a problem with Narkomed II anesthesia machines relating to improperly maintained or checked interlock devices. In addition, testimony was presented that Sunrise had a duty, when faced with a cardiac arrest for no apparent reason, to identify and sequester the equipment until Sunrise investigated and determined whether the equipment was a factor in the cardiac arrest and oxygen deprivation.
Given this evidence, the district court determined that Sunrise had, at the very least, a duty to record the machine's serial numbers. Sunrise's failure to document which machines were used in James's surgery prevented Banks from investigating the machinery's functionality as part of the investigation of James's injury. Accordingly, we perceive no abuse of discretion on the part of the district court in imposing sanctions, includin
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