A patient underwent a biopsy of an area in her lung. The doctor performing the biopsy inserted a guide wire into the woman to assist with the procedure. The guide wire dislodged. The doctor proceeded with the biopsy but could not find the guide wire. After an unsuccessful twenty-minute manual search for the wire, the doctor decided that it was better for the patient to leave the wire in and end the surgical procedure, rather than to extend the amount of time she was in surgery for him to continue searching for the wire. The doctor informed the woman after the surgery that he could not find the wire, and that he had determined that it was better to leave it.
The woman returned to the doctor complaining of pain she attributed to the wire. She said the pain was so significant that it disrupted her ability to work. Approximately two months after the first procedure, the doctor performed a second operation during which he successfully located and removed the wire with the use of a special x-ray machine known as a C-arm.
The woman sued the doctor and his practice for medical malpractice. At trial she presented her own testimony, the doctor’s testimony, a pathology report, and an x-ray taken between the two procedures. The defendants moved for a directed verdict at the close of the plaintiff’s case arguing that she failed to establish a prima facie case of medical malpractice due to her failure to present any expert proof on the standard of care and that res ipsa loquitor did not apply because there was no evidence of any error by the doctor that caused the wire to become dislodged.
The woman argued that she did not present any expert proof on the standard of care because res ipsa loquitor applied. Specifically, she argued that the doctor admitted that he intentionally left the wire in her, and, therefore, a jury could infer negligence given that there was no medical reason to leave the wire lodged in plaintiff, and the defendant could have obtained a C-arm to locate and remove it. The trial judge granted the defendants’ motion for a directed verdict. The appellate court affirmed.
The Court of Appeals of New York affirmed holding that the plaintiff failed to establish a prima facie case by not presenting any expert evidence that the physician departed from the accepted standards of medical care, and res ipsa loquitur did not apply. The court noted that the woman chose to pursue a theory of the case which focused on the doctor's intentional choice to leave the wire in, rather than on the initial dislodgment of the wire. As the theory of the case hinged on the doctor’s professional judgment, the court reasoned that the woman was required to establish that the doctor's judgment deviated from accepted community standards of practice, and that such deviation was a proximate cause of her injury.
To the extent the woman argued that res ipsa loquitur applied because the wire could only have dislodged due to the doctor's negligence, the court held that the woman failed to establish the elements of res ipsa loquitor. Specifically, the woman failed to establish that the doctor had exclusive control. Whether the doctor was in control of the operation does not address the question of whether he was in exclusive control of the instrumentality, because several other individuals participated to an extent in the medical procedure. Given that the woman failed to produce any evidence that the doctor had exclusive control of the wire, or sufficient proof that eliminated within reason all explanations other than the doctor's negligence, the court held that the control element was not established.
See: James v. Wormuth, 2013 WL 3213341, 2013 N.Y. Slip Op. 04839 (N.Y., June 27, 2013) (not designated for publication).