A 78-year-old man is scheduled to undergo elective cataract extraction with intraocular lens placement and excision of an eyelid papilloma in a one-room freestanding ophthalmologic surgery center. He is in excellent medical condition, regularly followed by his internist and is on no medications. He's a retired engineer, an avid snow skier and bicyclist, and a licensed private pilot.

The anesthesiologist obtains and reviews a medical clearance. As is the custom for this center, topical anesthesia will be used with minimal to no sedation. Staff place the patient on the operating room table, apply routine monitors and administer nasal oxygen at three liters per minute.

Drape bursts into flames
The cataract extraction and IOL placement go routinely. The surgeon then prepares to remove a small papilloma from the patient's lower eyelid. Things do not go nearly as well.

In order to control bleeding from a small vessel, the surgeon uses a bipolar cautery. Immediately upon energizing the cautery, the paper surgical drape bursts into flames. Mesmerized by the sight of the fire, the operating room staff stand frozen. A quick-thinking scrub technician dumps her basin of saline over the patient's face and extinguishes the flames.

Staff remove the soggy remains of the drape. Fine black soot covers the patient's face, as do first- and second-degree burns. The patient is wheezing mildly. Staff administer blow-by oxygen and call an ambulance to transport the patient to a nearby emergency department (and for a consultation with a general or plastic surgeon). Oxygen saturation measurements are within normal limits.

In the emergency department, an arterial blood gas reveals an increased level of carboxyhemoglobin consistent with acute smoke inhalation. The patient, who by now is wheezing more vigorously, is sedated and intubated. Subsequent bronchoscopy reveals burn injury to the bronchial tree. Although he's treated aggressively, the patient requires almost three weeks in the hospital before he is discharged to home.

"Loss of enjoyment"
The patient recovers from his burns with minimal facial scarring, but he suffers from severe shortness of breath on exertion that limits his ability to participate in the physical exercise he previously enjoyed. He files suit against the anesthesiologist, surgeon, surgical facility (including its staff), and the manufacturers of the electrocautery and the drape, seeking recovery for his "loss of enjoyment." It's noteworthy that the plaintiff patient advanced two separate theories of liability: professional and product. While related, there are important differences in the proofs that the plaintiff must offer in order to prove his case. Who do you think a jury holds responsible for the patient's injuries and how much, if anything, does it award him in damages?

Answer and Explanations
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