Washington Law Review


John Ludlow


In November 1967, defendant Dr. Somberg performed spinal surgery, using general anesthetic, on the plaintiff. During the procedure a jaw of the pituitary rongeur he was using broke off and lodged in the plaintiff's spine. The doctor terminated the operation after numerous unsuccessful attempts to recover the fragment. Four months later he retrieved the jaw in a second operation. The plaintiff suffered permanent injuries for which he sought recovery from the following: (1) Dr. Somberg for negligently causing the rongeur to break; (2) the hospital in which the surgery was performed for negligently furnishing a defective instrument; (3) the medical supply distributor which sold the defective rongeur for breach of implied warranty; and (4) the rongeur manufacturer in strict liability for manufacturing a defective product. The jury, on special interrogatories, found that plaintiff's injury was not caused by the negligence of the doctor or of the hospital and that the rongeur was not defective, i.e., it was fit for the ordinary purpose for which it was sold and used. The court dismissed the claim as to all defendants. The New Jersey Supreme Court affirmed the appellate court's reversal and remanded for a new trial. By so doing, the supreme court made two significant changes in the state's prevailing tort law. First, the court held that the jury should have been instructed that the burden of proving nonculpability was on the defendants. Second, and more importantly, the plurality, over a strenuous dissent, held that under such circumstances at least one defendant could not sustain his burden of proof and must be found liable. Together these changes represent the most substantial recent extension of medical malpractice liability in the country. This note will examine the Anderson decision and identify the practical and theoretical implications of the court's two holdings. It will also recommend that the holdings of the Anderson court not be followed in other states, but that courts instead impose a duty on defendants to exculpate themselves, and extend strict liability theory to hospitals which provide defective medical instruments which injure innocent plaintiffs.

First Page