Trial Court Could Grant New Trial Instead of JNOV When Jury Finds Hospital Negligent for Left-Behind Sponge Without Improperly Admitted Evidence

After two previous abdominal surgeries, a woman underwent a hysterectomy. Subsequently, a surgical sponge was discovered in the woman’s abdomen.


The woman sued the hospital where the surgery took place for medical malpractice. At trial, x-rays of the patient’s abdomen were not properly authenticated prior to their admission into evidence. The first trial ended in a jury verdict for the patient. The hospital moved for a judgment notwithstanding the verdict (JNOV) or a new trial on the grounds that the x-rays had not been properly authenticated. The trial judge granted a new trial due to the evidentiary error. The trial court denied the motion for a JNOV finding that even without the x-rays there was ample evidence on which the jury could find sponge was left in the plaintiff during the surgery at defendant hospital.


At the second trial, the hospital objected to the x-rays’ admission. The trial court found that the reasons the x-rays had been inadmissible at the first trial had been remedied and the plaintiffs had properly authenticated the x-rays. The x-rays were admitted into evidence. The second trial ended in a jury verdict for the plaintiffs. Specifically, the jury awarded $65,968.70 for past medical expenses; $1,934,031.30 for the patient’s past and future pain and suffering; and $500,000.00 to the patient’s husband for loss of consortium. The hospital appealed. The court of appeals reversed the trial court’s judgment holding that the trial court erred in granting a new trial instead of a JNOV. The patient appealed and the hospital cross-appealed.


The Supreme Court of Kentucky reversed the court of appeals. The Supreme Court concluded that the trial court properly exercised its discretion when it ordered the new trial and denied the hospital’s request for a JNOV. Moreover, the Supreme Court concluded that the trial court’s verdict should not be set aside as there was no error. The court held that the standard for awarding a JNOV instead of a new trial, when the post-trial exclusion of inadmissible evidence results in the failure of an important element of the prevailing party's case, but the remaining evidence is sufficient grounds for a jury’s decision. The court of appeals erred in assuming that if the plaintiffs’ x-ray evidence was not sufficient to sustain their burden of proof, then the only option available to the trial court was to grant a JNOV.


The trial court committed no error that might justify setting aside its verdict for the plaintiffs in the second trial. Because two prior surgeries were not ruled out as possible sources of the sponge negligently left in the patient's body, the court of appeals was correct that the doctrine of res ipsa loquitur could not be applied to permit the inference that the surgery that took place at the defendant hospital was the source of the negligently caused injury. Nonetheless, the trial court made no reversible error.


The x-rays were properly admitted into evidence in the second trial. A nurse practitioner could be an expert witness concerning her interpretation of the x-rays. Moreover, the nurse practitioner’s testimony was cumulative to a radiologist's testimony. The trial court did not abuse its discretion when it rejected the hospital’s proposed jury instruction which would have permitted the jury to assign a portion of the fault to the surgeon who performed the operation. There was insufficient evidence presented at trial to establish the surgeon was liable at all, so there was no fault on his part to apportion. The damages were not excessive because, while the trial court did find the damages excessive, it declined to set aside the verdict. To the extent that the trial court found the damages excessive, the Supreme Court of Kentucky reversed the trial court for abusing its discretion.


See: Savage v. Three Rivers Medical Center, 2012 WL 5274645 (Ky., October 25, 2012) (not designated for publication).