Patient Failed to Establish Wire Left in Patient’s Body During Surgery Was Malpractice

While performing surgery to remove a node from a patient’s lung, the surgeon lost a small wire that had been inserted in order to perform the procedure. After unsuccessfully searching for the wire for 20 minutes, the surgeon chose to leave the wire inside the patient’s body, deciding that the risk of leaving the wire was less than that of extending the patient’s time under general anesthesia and making a further incision. The patient sued for malpractice, relying on the theory of res ipsa loquitur. Res ipsa loquitur is an evidentiary doctrine that merely permits the jury to infer negligence based on a well-founded understanding that the injury-causing event would not normally occur unless someone was negligent. The trial court granted the surgeon’s motion to dismiss at the close of the plaintiff’s case.


On appeal, the appellate court affirmed. The uncontroverted evidence was that the surgeon intentionally left the wire inside the plaintiff’s body. No expert testimony was elicited at trial. Instead, the plaintiff relied on the defendant’s testimony explaining the decision to leave the wire. The plaintiff did not establish either that the decision to leave the wire was a negligent exercise of medical judgment, or that the surgeon was negligent in losing the wire in the first place. Therefore, the patient failed to establish the applicable standard of care, or the physician's breach of it, as required to make out a prima facie case of medical malpractice.


See: James v. Wormuth, 2012 WL 975693 (N.Y.A.D. 4 Dept.  Mar 23, 2012) (not designated for publication).