James v. Wormuth

New York Court of Appeals · 2013 · Torts

TortsMedical MalpracticeRes Ipsa Loquiturmedical malpracticeres ipsa loquiturforeign objectexpert testimonyprofessional judgment

Facts

During a lung biopsy, a localization guide wire inserted into plaintiff dislodged, and defendant surgeon was unable to find it after a 20-minute search. Defendant decided to end the procedure and leave the wire in place because, in his judgment, continuing the search would increase risk by prolonging anesthesia and requiring a larger incision. Plaintiff later complained of pain and returned about two months later, when defendant removed the wire during a second procedure using a C-arm. At trial, plaintiff pursued the theory that defendant was negligent in failing to remove the wire during the first surgery, but presented no expert testimony on the standard of care.

Issue

Whether plaintiff established a prima facie medical malpractice case without expert testimony by relying on res ipsa loquitur or the mere fact that a guide wire remained in her body after surgery. More specifically, the question was whether res ipsa loquitur applied where plaintiff's theory challenged the surgeon's intentional medical decision to leave the wire in place, or alternatively where plaintiff suggested the wire's dislodgment itself implied negligence.

Rule

A medical malpractice plaintiff ordinarily must prove that the doctor deviated from accepted medical practice and that the deviation proximately caused the injury. Res ipsa loquitur permits an inference of negligence only when the event ordinarily does not occur absent negligence, the instrumentality was within the defendant's exclusive control, and the event was not due to plaintiff's voluntary action; in medical malpractice foreign-object cases, the doctrine applies where the object is unintentionally left in the patient after surgery. When the claim attacks a doctor's exercise of professional judgment, expert testimony is required unless the matter can be understood through the common knowledge of laypersons.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a hospital in Albany, surgeon Nina Patel was removing a small metal marker placed near a patient's kidney lesion. Mid-procedure, the marker migrated deeper into tissue, and after a brief search Patel decided to end the surgery because extending the operation would require a larger incision and additional anesthesia time. The patient later sued, offering no expert testimony and arguing that leaving the marker inside the body was obviously negligent.

Should the court allow the claim to go to the jury without expert testimony?

Explanation. A medical malpractice plaintiff ordinarily must prove a deviation from accepted medical practice and causation. When the theory attacks a physician's intentional choice made as a matter of professional judgment—here, ending the operation rather than continuing the search—expert testimony is required unless the matter is within common knowledge. Under the majority opinion, the mere fact that an object remained in the body does not dispense with expert proof when the object was intentionally left there based on medical judgment.