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Res Ipsa Loquitur Not Persuasive for Packing Left in Surgical Wound


A woman underwent a right hemicolectomy, which involves removing the right side of the colon and attaching the small intestine to the remaining portion of the colon. Following the surgery, the woman's surgical wound was cared for at the medical center where the procedure was performed by the surgeon and hospital staff under his supervision, at a rehabilitation facility, at the woman’s home by visiting nurses, and at the surgeon's private office. Almost a year after the procedure, a piece of “old packing” was discovered in the surgical wound.

 

The woman filed a medical malpractice claim alleging that the surgeon, medical center, rehabilitation facility, and visiting nurse provider were negligent in leaving the packing inside the wound, asserting that it delayed the healing of the wound. After the woman died, the administrator of her estate was substituted as plaintiff. The administrator then served an amended complaint adding a cause of action alleging wrongful death. The Queens County Supreme Court granted summary judgment in favor of the medical center, rehabilitation facility, and visiting nurse provider.

 

The Appellate Division of the New York Supreme Court, Second Department, affirmed the trial court. The court held that the medical center, rehabilitation facility, and visiting nurse provider established their prima facie entitlement to judgment as a matter of law as the administrator failed to come forward with any evidence raising a triable issue of fact as to a specific negligent act or omission of an employee of the medical center, rehabilitation facility, or visiting nurse provider that caused the woman's alleged injuries and death. Also, the administrator’s reliance on the doctrine of res ipsa loquitur was found unpersuasive.

 

The medical center and the visiting nurse provider established their prima facie entitlement to judgment as a matter of law by submitting affidavits from a general surgeon and from a registered nurse demonstrating, prima facie, that their treatment of the woman conformed to good and accepted medical and nursing practice. Additionally, they submitted an expert affidavit from an oncologist demonstrating, prima facie, that any departure from the standard of care was not the proximate cause of her injuries or death. The medical center established that it could not be held vicariously liable for any purported malpractice committed by the surgeon, as it was undisputed that he was a private attending physician whose services had been retained by the woman, and that he was not an employee of the medical center. Additionally, the medical center could not be held answerable for any acts performed by its professional staff in accordance with the instructions of her private physician.

 

The rehabilitation center established its prima facie entitlement to judgment as a matter of law by submitting an affidavit of its clinical director of nursing, excerpts of the surgeon's deposition testimony, and its medical records concerning the treatment rendered to the woman which demonstrated, prima facie, that its treatment of her conformed to good and accepted medical and nursing practice.

 

In opposition, the administrator failed to come forward with any evidence raising a triable issue of fact as to a specific negligent act or omission of an employee of the medical center, rehabilitation facility, and visiting nurse provider which caused the woman's alleged injuries and death. The plaintiff's expert surgeon did not offer any opinion as to whether the medical center, rehabilitation facility, or visiting nurse provider departed from good and accepted medical or nursing practice in their treatment of the woman, nor was the expert able to opine with any degree of medical certainty when and by whom the packing was inadvertently left in the wound.

 

The court found the administrator’s reliance on res ipsa loquitur unpersuasive. Although res ipsa loquitur may be utilized where more than one defendant may have been in control, the responsible defendants must share exclusive control of the instrumentality causing injury. Here, the medical center, rehabilitation facility, and visiting nurse provider were not acting jointly or concurrently with each other. They did not have concurrent control of the surgical packing that allegedly caused the injury. The treatment was performed by different entities at different times in different locations. This was not a situation where several physicians participated in a single surgical procedure and, as a result, have the burden to explain their actions and conduct in the operating room wherein plaintiff was injured. Accordingly, under these circumstances, the administrator's reliance upon the doctrine of res ipsa loquitur in opposition to the motion was misplaced, inasmuch as he failed to raise a triable issue of fact as to the applicability of the requisite elements of the doctrine. Moreover, the doctrine of res ipsa loquitur is inapplicable to the defendants' alleged failure to discover that the packing had not been removed.

 

The Appellate Division of the New York Supreme Court, Second Department, affirmed the judgment of the trial court granting the medical center’s, rehabilitation facility’s, and visiting nurse provider's motions for summary judgment.

 

See: Bucsko v. Gordon, 2014 WL 2504687, 2014 N.Y. Slip Op. 03969 (N.Y.A.D. 2 Dept., June 04, 2014) (not designated for publication).

 

 

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