Although injury to adjacent structures is a recognized risk whenever surgery is done in accordance with standards of care, nerve injuries are of particular concern to the attorney defending procedure related claims. Nerves are found in or near practically every surgical field, and they do not follow the same pathways in every patient. Nerve tissue is also less resilient to injury than other types of tissue, leading to more profound consequences of inadvertent injury. Consequently, nerve injuries are a common source of medical malpractice claims.

Res Ipsa Loquitor

An important case in this area is Pipers v. Rosenow, 39 A.D.2d 240 (2d Dept. 1972) in which the simple act of drawing blood for laboratory evaluation resulted in an injury to the patient's radial nerve which impaired the use of his hand. After trial, the jury returned a verdict for the plaintiff, having been charged on the doctrine of res ipsa loquitur, but the Appellate Division reversed the judgment and remanded the case for a new trial. The court accepted the position of the defendant physician, in the absence of expert testimony to the contrary, that he had not departed from accepted standards in the performance of the venipuncture, and the doctrine of res ipsa loquitur was inapplicable to the case.

The court's opinion contains a thoughtful discussion of the elements of the doctrine of res ipsa loquitur which in some nerve injury cases raises a permissible inference of negligence, but did not in that case. The court, on the record before it, did not find that nerve injury in the course of drawing blood by needle ordinarily connoted negligence despite the fact that it does not frequently occur. The court further observed that the determination that the occurrence does not ordinarily occur in the absence of negligence (one of the three conditions for the doctrine's application) implies that the circumstances of the occurrence are within the general experience of a jury without the benefit of expert testimony.

Defense counsel will find it important to develop the record before the court when faced with the task of defending a medical professional whose patient has sustained a nerve injury. In Pipers, it was unknown what the anatomical relationship was between the patient's vein and radial nerve, but the nerve is a complex structure which is far more than the wiring which transmits impulses back and forth from the brain to the muscles and organs.

The peripheral nervous system is a web of tissue which is both elastic and mobile to accommodate movement, has its own blood supply, and is subject to its own group of age-related difficulties and diseases. Frequently a nerve which has been injured at a procedure has never been exposed during surgery, and no direct observation of its condition has been made. Nerves are usually located deep in other tissues and close to bone, as a protective mechanism. This very protection can expose the nerves to irregular prominences of bone, which under general anesthesia and during surgical manipulation may impact the nerve tissue itself.

In LoPresti v. Hospital for Joint Diseases, 275 A.D.2d 201 (1st Dept. 2000), the court faced this complexity. The patient had undergone a surgical procedure on her spine with the removal and grafting of tissue as well as the application of fixation hardware. The patient had sustained a nerve injury which was most evident in her calf, and there was no claim that the surgery had been performed in a negligent fashion. Instead, the patient argued that the nerve injury remote to the operative site was due to negligent positioning while the patient was anesthetized for the surgical procedure. Despite expert testimony on her behalf, suggesting different reasons for the nerve injury, the trial court granted the defendants' motion to dismiss the complaint at the conclusion of her proof.

In reversing the dismissal, the court revisited the elements of res ipsa loquitur because that was the theory advanced by the plaintiff. Even though the multifactorial complexity of the status of the patient's nerves had been set out by the expert witnesses (pre-existing radiculopathy, proximity to bone, herniated discs, manipulation and trauma of surgery, and general anesthesia), the court was of the opinion that the case should have gone to the jury. The court did not, however, go so far as to say that the jury should be instructed on res ipsa loquitur at the new trial.

Expert Testimony

In 2003, the Court of Appeals decided the case of States v. Lourdes Hospital, 100 NY2d 208 (2003), which established that expert testimony may be used to educate the jury on the element of res ipsa loquitur which requires that the injury would not ordinarily occur in the absence of negligence. That case had previously produced a thorough discussion by Justice Walter Relihan of nerve injury to a patient who had suffered nerve injury affecting her right arm during surgery to remove an ovarian cyst. Relihan denied the summary judgment motion of the defendant anesthesiologist. States v. Lourdes Hospital, 188 Misc.2d 420 (Sup. Ct. Tompkins County, 2001). The Appellate Division had reversed in a split decision (297 A.D.2d 450) allowing the case to reach the Court of Appeals.

The Court of Appeals made it clear in States that counsel for the plaintiff is permitted to adduce expert testimony to assist the jury's decision on whether the injury would take place in the absence of negligence, but that is not all. The court also held that the defendant must be permitted to adduce expert testimony to show that the injury “is an inherent risk of the procedure and not totally preventable with the exercise of reasonable care.”

The court set forth the three elements which give rise to the applicability of the doctrine:

(1) The injury does not ordinarily occur in the absence of negligence;

(2) The injury was caused by an instrumentality within the exclusive control of the defendant; and

(3) No act or negligence of the plaintiff contributed to the injury.

Procedurally, the court held that once the plaintiff satisfies the burden of proof on these three elements, the res ipsa loquitur doctrine permits the jury to infer negligence from the fact of the occurrence.

It is no longer the case that res ipsa loquitur is limited to the injury remote to the site of the procedure where the average layperson would conclude that the event would not have occurred in the absence of negligence. In dealing with nerve injuries in particular, the field is considerably broader. The third element, that requiring proof that the plaintiff did not contribute to the event, will not create the same level of dispute that the first two elements will. Defense counsel should be prepared to litigate the first two elements and insure that the verdict sheet reflects the jury's separate determination of these issues.

With respect to nerve injury in the immediate proximity of the procedure, expert input should be available early in the preparation for trial to demonstrate whether the nerve injury is a risk of the procedure when performed according to standards. Although this does not mean that the defendant who performed the procedure adhered to standards, it may obviate the res ipsa loquitur charge.

The second element, that the instrumentality of the injury was under the exclusive control of the defendant, necessarily involves some of the same consideration that was involved in determining that the injury could be expected to occur without negligence. The wide variety of factors involved in nerve injury include some which are not under the control of those rendering care, and disproving control or showing that the instrumentality of the injury is unknown will defeat the second element making the doctrine inapplicable.

Positioning Issue

In cases involving nerve injury not in a location near where the procedure was performed, the challenge to the defense is greater, but there are still causes of nerve injury which do not relate to the acts of the health care provider. Assumptions about how patients can be positioned, padded and moved while under general anesthesia are made in every procedure. Those assumptions may not hold true for a small percentage of patients who will be unable to perceive the pain of a stretched, compressed, or otherwise compromised nerve and unable to move to relieve the sensation from the nerve and prevent lasting impact. The very act of placing the patient under a general anesthetic deprives her of the ability to perceive that a nerve is being impacted and that a change of position is needed to protect the nerve. The observers in the procedure room should all be able to identify problematic positioning or padding, but would be incapable of determining whether the patient for any of a variety of reasons is more susceptible to nerve injury.

Recently in Pancila v. Romanzi, 140 A.D.3d 516 (1st Dept. 2016) the court unanimously affirmed the dismissal of the complaint by Justice Douglas E. McKeon in a case involving a patient who had undergone pelvic reconstruction surgery, and sustained nerve injury which was temporally related. The court held that as a matter of law the claims that equipment was not properly used and the patient was not properly positioned were not substantiated by the requisite evidence such that there was no issue for a jury to resolve.

Conclusion

Procedure-related nerve injury is frequently unrelated to deficient medical care, but the planning and execution of the defense must contend with the reality that nerve injury occurs in concealed locations where there may be little direct evidence of the cause. Careful development of the facts and expert review are needed to be able to demonstrate that factors beyond the control of the health care providers account for the unfortunate outcome. Even with the input of expert witnesses, cases in which the doctrine of res ipsa loquitur is applicable are rare.

John L. A. Lyddane is a partner at Dorf & Nelson.