Kambat v. St. Francis Hosp., 1997 N.Y. Int. 15 (February 13, 1997).

MEDICAL MALPRACTICE - RES IPSA LOQUITUR - EXPERT TESTIMONY

A PLAINTIFF NEED NOT CONCLUSIVELY ELIMINATE THE POSSIBILITY OF ALL OTHER CAUSES OF THE INJURY IN ORDER TO RELY ON RES IPSA LOQUITUR

[SUMMARY] | [ISSUE & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY]

SUMMARY

In August 1986, Decedent underwent a hysterectomy during which several 18-by-18 inch laparotomy pads were placed inside Decedent's peritoneal cavity, next to the bowel. In the months following the operation, Decedent began to complain of stomach pain. On November 30, 1986 an X-ray revealed a foreign object in her abdomen which was later identified as a laparotomy pad ("the pad") and removed. Following the removal of the pad, Decedent's condition continued to deteriorate until she died on December 29, 1986.

Plaintiffs, the Decedent's family, brought a medical malpractice action. They presented evidence that the pad found inside decedent was the same type and size used during her hysterectomy. Plaintiffs also presented testimony that the laparotomy pads were inaccessible to patients. Defendants posited that decedent was depressed and had swallowed the pad. They introduced evidence that standard procedures were followed during the hysterectomy and that the number of sponges, instruments, and laparotomy pads used during the procedure were counted several times, carefully and accurately. Additionally, defendants also presented testimony that such pads were frequently left in places accessible to patients in hospitals. Plaintiff's and Defendants' expert witnesses disagreed over whether such a pad could be ingested and pass into the small bowel.

Plaintiffs wanted the trial court to instruct the jury on the doctrine of res ipsa loquitur under which the jury could have inferred negligence merely from the occurrence of an event and the Defendant's relation to it. The trial court did not give the jury a res ipsa instruction. The court reasoned that the inconsistent expert testimony rendered res ipsa inapplicable and showed that the subject matter was not within common experience. The Appellate Division upheld the trial court's refusal to instruct the jury on res ipsa loquitur.

ISSUE & DISPOSITION

Issue

Whether the need for expert testimony and presentation of alternate theories of causation preclude a res ipsa instruction in a factually simple medical malpractice action.

Disposition

No. It is enough that the evidence supporting the use of res ipsa loquitur affords a rational basis for concluding that it is more likely than not that the injury was caused by defendant's negligence. Plaintiff only needs to demonstrate that it is more likely than not that defendant caused the harm. The trial court's refusal to instruct the jury regarding res ipsa loquitur mandates reversal and a new trial as to the first two causes of action.

AUTHORITIES CITED

Cases Cited by the Court

Other Sources Cited by the Court

COMMENTARY

State of the Law Before Kambatet al.

In Critelli v. Long Island Jewish-Hillside Medical Ctr., the Appellate Division of the Second Department affirmed the denial of a summary judgment motion. Appellants had failed to refute an inference of negligence based on the appellants' lack of removal of a laparotomy pad placed in the respondent's abdomen during surgery. 496 N.Y.S.2d 290 (N.Y. App. Div. 1985). The court held that the motion was properly denied even though the respondent had not submitted an affidavit of a medical expert.

N.Y. courts have ruled inconsistently with respect to whether expert testimony can provide a sufficient basis upon which a jury can consider the doctrine of res ipsa loquitur. In Ceresa v. Karakousis, 620 N.Y.S.2d 646, 647 (N.Y. App. Div. 1994), the Appellate Division of the Fourth Department, held that the jury could "reasonably infer[]" from the plaintiff's expert testimony that the plaintiff's injury was caused by the defendants' negligent acts and that such injury would not "ordinarily" have occurred but for defendants' negligence. In contrast, the Appellate Division of the First Department, ruled that the plaintiffs' expert testimonies were insufficient to allow a jury to invoke the doctrine of res ipsa loquitur. Stanski v. Ezersky, 644 N.Y.S.2d 220 (N.Y. App. Div. 1996). The court determined the testimony of one of the plaintiff's experts was "nothing more than personal speculation", and the testimony of the latter expert "merely underscored the inadequacies presented by" the former expert. Id. at 222-223. Similarly, the Appellate Division of the Third Department held that the res ipsa loquitur doctrine could not be implemented based on the testimony of the plaintiff's expert. The court ruled the expert testimony presented did not establish the requisite prima facie case of an injury resulting from a "deviation from accepted medical practice." Schoch v. Dougherty, N.Y.S.2d 855 (N.Y. App. Div. 1986), at 469, at 858.

In two other New York medical malpractice suits involving a failed removal of a laparotomy pad during surgery, the courts have found in favor of the physician defendants on two distinct grounds. In Stafford v. Molinoff, the court permitted the expert testimony of a registered surgical nurse who testified that it is the responsibility of operating-room nurses to ensure that no foreign objects were left in the patient's body at the end of surgery. As a result, the court affirmed the jury's finding that the physician defendant was neither negligent nor liable for the patient's injuries resulting from the foreign object remaining in the patient's body after the completed surgery. 645 N.Y.S.2d 313 (N.Y. App. Div. 1996). On the other hand, the court in Flynn v. New York Hosp. held that the plaintiff's action against defendants was barred due to the expiration of the statute of limitations. 224 N.Y.S.2d 881 (N.Y. App. Div. 1962). In that case, a laparotomy pad was discovered and removed from the patient during exploratory surgery thirteen years after the patient had undergone surgery for a chronic duodenal ulcer. Although the court acknowledged the "oftentimes unjust and inequitable consequences" of the state's two year statute of limitations, it held that is was "nevertheless constrained to follow it." Id. at 883.

Effects of Kambat on Current Law

This case does not radically change existing law but instead demonstrates that in some contexts the need for expert testimony will not eliminate the res ipsa loquitur doctrine as an appropriate theory of recovery. As here, where the situation of the case is more similar to classic res ipsa scenarios and involves a sponge or pad left in the patient's body, the court is more likely to allow a res ipsa theory despite conflicting expert testimony. If the case had involved a less unusual defense theory (here, the defense posited that the deceased had swallowed an 18 inch gauze pad) or there was a more cognizable debate over why the injury occurred, a res ipsa theory might not apply.

Unanswered Questions

The Kambat decision hints at the possibility of a range of outcomes based on the relative "obviousness" of the cause of the injury. If expert testimony is required to demonstrate the defendant's exclusive control, and to show that it is unlikely that the injured party could have hurt themselves, res ipsa remains appropriate. However, if dueling experts produce more intricate explanations for the injury that move beyond the relatively uncomplicated scenario here, res ipsa is less likely to be upheld as a viable theory of recovery. If defendant's evidence was more clearly in opposition to a finding of res ipsa, would the same standard still apply? A scenario involving a patient with a history of swallowing harmful objects would present a different case.

In the same connection, the court decided that res ipsa loquitur is applicable in medical malpractice cases where "any layman is competent to ... conclude from common experience that such things do not happen if there has been proper skill and care." Prosser & Keeton, on the Law of Torts § 40 at 256 [5th ed. 1984]. The court stated that it left open the question of whether res ipsa loquitur is applicable when the jury needs to rely on the testimony of an expert witness.

Further, Prosser and Keeton enumerate a series of incidents that will allow a claim of res ipsa loquitur to be heard by the jury. Id. at § 40. The court has not stated whether or not they accept all of the categories, or only the case of a sponge left inside the patient.

Survey of the Law in Other Jurisdictions

There appears to be an overwhelming consensus among the states that the failure to remove a sponge from a patient after the completion of surgery is negligence per se. Powell v. Mullins, 479 So. 2d 1119 (Ala. 1985) (involving an 18 inch surgical laparotomy sponge); Piaccentini v. Bonnefil, 217 N.E.2d 507 (Ill. 1966) ; Grant v. Touro Infirmary, 223 So. 2d 148 (La. 1969); Hestbeck v. Hennepin County, 212 N.W.2d 361 (Minn. 1973) (finding negligence per se despite the fact that upon closing the patient's incision the physician discovered that a sponge was missing and immediately reopened the patient's incision in an unsuccessful attempt to find the sponge, which was successfully removed several days later); Rudeck v. Wright, 709 P.2d 621 (Mont. 1985); Shearin v. Lloyd, 98 S.E.2d 508 (N.C. 1957); Nicholson v. Sisters of Charity, 463 P.2d 861 (Or. 1970 ); Harle v. Krchnak, 422 S.W.2d 810 (Tex. 1967) (noting that res ipsa is not generally recognized by Texas courts except where the nature of the injury is plainly within the general knowledge of the layman); Easterling v. Walton, 156 SE.2d 787 (Va. 1967 ); Connors v. University Assocs., 4 F.3d 123 (2d Cir. 1993) (applying Vermont law) (discussing the question of whether a plaintiff may use expert testimony to support a res ipsa theory and listing how each of the state courts have resolved the issue).

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