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Banks v. Sunrise Hospital12/17/2004
ion under either (d) or (e) would have been appropriate.
The instant case is similar to Johnson and Born. James underwent surgery for treatment to his shoulder, but suffered an injury to his brain, causing his vegetative state. The brain is not directly or proximately related to the rotator cuff surgery. Therefore, the district court did not abuse its discretion when it submitted a res ipsa loquitur instruction to the jury.
Expert Testimony
NRS 50.275 provides, "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge, skill, experience, training or education may testify to matters within the scope of such knowledge." Accordingly, the district court may generally admit expert testimony on matters outside the average person's common understanding. Such testimony must also be relevant and its probative value must not be substantially outweighed by the danger of unfair prejudice. Because the admission of expert testimony is in the sound discretion of the district court, we will not reverse the district court's decision absent an abuse of discretion.
Duty to Sequester
Sunrise contends that the district court abused its discretion when it permitted Banks to introduce expert testimony on Sunrise's duty to preserve the anesthesia equipment. During the course of trial, Banks's expert witnesses, Robert Morris and Dr. Casey Blitt, testified that Sunrise had a duty to sequester the anesthesia equipment after James's cardiac arrest. At the conclusion of the case, the district court instructed the jury, as we previously discussed, that Sunrise had a duty to identify all the equipment and monitors used in James's surgery.
The evidence concerning Sunrise's duty to preserve the evidence assisted the jury in relation to its prerogative to draw a negative inference from Sunrise's consummated sale of the equipment. Consequently, this evidence assisted the jury in understanding the pertinent issue of whether the anesthesia equipment had malfunctioned during James's surgery. We note that pursuant to NRS 41A.100(1), expert testimony is required in medical malpractice actions to establish the accepted standard of care. We do not believe the district court could therefore be in error in admitting evidence concerning a duty to sequester the equipment, as the existence of such a duty seems to assume a standard of care relevant to the issues being litigated. Therefore, we conclude that the district court did not abuse its discretion when it permitted Banks's experts to testify concerning Sunrise's duty to sequester the equipment.
Opinion Testimony
Sunrise contends that the district court abused its discretion when it admitted the opinion testimony of expert Robert Morris concerning the anesthesia equipment's malfunctioning. Sunrise contends that Morris's testimony was speculative and that he could only offer opinions as to mere possibilities and not to a reasonable degree of probability.
As mentioned, NRS 41A.100(1) provides that expert testimony is required in medical malpractice cases to establish the accepted standard of care, a breach of that standard and causation. Generally, "a medical expert is expected to testify only to matters that conform to the reasonable degree of medical probability standard." In United Exposition Service Co. v. SIIS, we concluded that a finding of negligence in a medical malpractice case "cannot be based solely upon possibilities and speculative testimony." In United Exposition, we stated that " testifying physician must state to a degree of reasonable
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