By Vag Krishnan, legal blogger for Michael J. Brennan

In a recent medical malpractice case - James v. David Wormuth, CNY Thoracic Surgery, P.C. (June 2013) – the Court of Appeals of New York dismissed a claim of the Plaintiff who asserted the doctrine of ‘res ipsa loquitur’ against the defendant doctor.  

In this case, a guide wire inserted by the defendant doctor into the patient to assist with a biopsy of an area in her lung dislodged.  Even though the doctor tried to locate the wire for 20 minutes, he could not locate it.  Therefore, the doctor decided to end the surgical procedure leaving the wire in plaintiff’s body.  

After the surgery, the doctor told the patient that he could not locate the wire and he decided to leave the wire inside.

Afterward, the patient claimed she suffered pain due the guide wire and it disrupted her ability to work.  Later, the doctor located the wire in a second surgery and successfully removed it from the patient's body.  

The court granted a directed verdict in favor of doctor and dismissed the patient's complaint.  

The NY Court of Appeals (the highest court in NY) affirmed the dismissal holding that the doctor exercised his professional judgment when he chose to leave the object in the patient, and the injured victim did not present any expert evidence that by so doing, the doctor departed from accepted standards of medical care. The court further held that the patient failed to demonstrate a 'prima facie case' of medical malpractice based upon the doctrine of 'res ipsa loquitur', or traditional negligence principles.  

Under the doctrine of ‘res ipsa loquitur’, a defendant’s negligence is presumed as a result of his or her actions and the burden of proof is shifted to the defendant.  Therefore, the defendant should disprove the negligence alleged against him/her.

If an injured victim asserts the doctrine of ‘res ipsa loquitur’ against a defendant, he must establish three elements to apply the doctrine: 

  1. Direct proof of negligence is wanting;
  2. The instrumentality that caused the injury was under the exclusive control of the defendant and,
  3. The injury would not, in the ordinary course of events, have occurred, but-for negligence on the part of the defendant.

In James v. Wormuth, the injured victim did not present any expert opinion regarding the doctor's action of leaving the guide wire inside the patient's body.  Had the patient presented expert evidence that the doctor's action was not the accepted practice in the medical profession, the court would likely not have dismissed the case against the injured victim.  

In all medical malpractice actions in New York, opinions of medical experts are essential.  

Usually a medical expert will address mainly two questions:

  1. Did the doctor follow the standard of care for doctors in the same position?

  2. Did the doctor’s failure to follow the standard of care harm the patient?