## Facts

- James Lee Banks Jr. (age 51) was admitted to Sunrise Hospital for elective rotator cuff surgery.
- During surgery, Banks suffered cardiac arrest and severe brain damage, leaving him in a permanent vegetative state.
- Surgery occurred in a hospital operating room using hospital equipment, including a Narkomed II anesthesia machine.
- Sunrise engaged an anesthesiologist, Dr. Robert Kinsman, as an independent contractor to administer anesthesia and monitor Banks; an orthopedic surgeon, Dr. James Manning, performed the procedure.
- After the incident, Sunrise sold the anesthesia machine under an equipment-sale arrangement and did not record serial numbers or otherwise track which machine had been used, preventing later testing of the specific machine.
- Banks alleged negligence, including that equipment malfunction and Sunrise’s conduct regarding the equipment contributed to the cardiac arrest and resulting injury.

## Issues

1. Whether the district court abused its discretion by giving a spoliation-type instruction permitting an adverse inference from Sunrise’s failure to preserve the anesthesia machine.
2. Whether res ipsa loquitur was properly submitted to the jury to infer negligence from a severe, unexpected brain injury occurring during routine shoulder surgery while the patient was unconscious.
3. Whether the court erred by admitting expert economic testimony quantifying loss of enjoyment of life (hedonic damages) and by allowing the jury to consider such damages.
4. Whether the district court properly reduced the verdict by settlement amounts paid by other defendants to prevent double recovery.

## Decision

- The Nevada Supreme Court affirmed the judgment and post-trial order.
- The spoliation sanction and permissive adverse-inference instruction were within the trial court’s discretion given Sunrise’s notice of potential litigation and the centrality of the machine’s condition.
- Res ipsa loquitur was properly applied under Nevada law because the type of injury ordinarily does not occur absent negligence and occurred while the patient was unconscious and under the management of medical providers and equipment.
- The trial court did not abuse its discretion by admitting economist testimony valuing loss of enjoyment of life; the jury could accept or reject the valuation.
- The verdict was properly reduced by the amounts paid in settlement by the surgeon and anesthesiologist.

## Legal Principles

- A trial court may impose spoliation sanctions, including a permissive adverse-inference instruction, when a party with notice of potential litigation fails to preserve material evidence.
- Under Nevada’s res ipsa loquitur framework, negligence may be inferred when the injury is of a kind that ordinarily does not occur without negligence and the relevant instrumentalities were under defendants’ management while the plaintiff was unable to identify the precise negligent act.
- Loss of enjoyment of life is compensable as non-economic damages in Nevada; such loss is treated as part of pain and suffering rather than a separate, additive category.
- Expert testimony that assigns a monetary value to loss of enjoyment of life may be admitted in the trial court’s discretion to assist the jury, which remains free to reject the opinion.
- To avoid double recovery for an indivisible injury, a court may reduce a jury award by amounts received in settlements from other alleged tortfeasors.

## Conclusion

The Nevada Supreme Court upheld a medical malpractice verdict against the hospital, sustaining the adverse-inference instruction for missing equipment, permitting res ipsa loquitur, allowing expert testimony valuing loss of enjoyment of life as part of non-economic damages, and approving a setoff for prior settlements to prevent duplicative recovery.


Banks v. Sunrise Hosp., 120 Nev. 822, 102 P.3d 52 (Nev. 2004)