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Banks v. Sunrise Hospital12/17/2004
g the court's decision to instruct the jury that it could draw an adverse inference concerning the functionality of the equipment based upon Sunrise's failure to preserve it. We note, in passing, that the district court did not instruct the jury that it shall draw an adverse inference from Sunrise's disposal of the equipment, only that it may draw an adverse inference. Under the facts of this case, the district court did not abuse its discretion in imposing sanctions even though there was no evidence that Sunrise willfully disposed of the machines in order to frustrate discovery in subsequent litigation proceedings. We emphasize that our holding is limited to the facts of this case, considering the catastrophic nature of James's injury, the unique position of Sunrise and its knowledge concerning the incident, and should therefore be narrowly construed.
Resipsa Loquitur
Sunrise contends that the district court abused its discretion when it submitted a res ipsa loquitur instruction to the jury. " party is entitled to jury instructions on every theory of her case that is supported by the evidence." We will review a district court's decision to give a particular instruction for an abuse of discretion or judicial error.
NRS 41A.100 has replaced the doctrine of res ipsa loquitur in medical malpractice cases. A rebuttable presumption of medical malpractice applies when the plaintiff has provided some evidence of one of the factual predicates enumerated in NRS 41A.100(1). NRS 41A.100(1)(d) provides that a rebuttable presumption of medical malpractice arises when the patient suffers an injury "during the course of treatment to a part of the body not directly involved in the treatment or proximate thereto."
In Johnson v. Egtedar, we held that the district court erred in refusing the appellant's proffered jury instruction on res ipsa loquitur. During surgery to appellant's lower back, the surgeon operated at the wrong level of appellant's spine, puncturing her spinal dura, psoas major muscle, colon and left ureter, causing severe personal injuries. We concluded that the circumstances justified an instruction on NRS 41A.100(1)(d) because the appellant had sought treatment to her lower back but suffered injury to her colon and ureter, parts of the body not directly or proximately related to lower back surgery.
Similarly, in Born v. Eisenman, we concluded that the district court erred when it precluded the appellant from presenting a res ipsa loquitur theory to the jury. Several days after Born underwent surgery to have her uterus and ovary removed, she complained of severe pelvic pain. Doctors determined that Born's left ureter had been ligated during surgery. About a week later, Born underwent a second surgery to repair the ligated ureter. During that procedure, the surgeon also removed a partially diseased right ovary. Over two years later, Born sought treatment for pain in her abdomen, which she had experienced since the second surgery. Doctors discovered that a portion of her small bowel had been cut during the closure procedure from the second surgery.
We concluded in Born that the district court should have instructed the jury based upon NRS 41A.100(1)(e) "because a surgical procedure was performed on the wrong organ or the wrong part of a patient's body." Although Born was decided based upon NRS 41A.100(1)(e) rather than NRS 41A.100(1)(d), the case is nonetheless instructive and its reasoning applies here. Born suffered an injury to her ureter during the course of treatment to her uterus and ovary and later suffered an injury to her bowel during the course of treatment to her ureter and ovary. These facts demonstrate that submission of an instruct
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