Res ipsa loquitur under New York law of medical malpractice: Of things that do NOT speak for themselves

June 27, 2013

James v. Wormuth, — N.E.2d —, 2013 WL 3213341 (N.Y. 2013)

The New York Court of Appeals has delivered today a casebook decision on the following set of facts:

During a biopsy of the plaintiff’s lung area, a localization guide wire was dislodged and the defendant surgeon was unable to locate it. He decided to keep the wire inside the plaintiff’s body because he believed it to be the best call under the circumstances. He also informed the plaintiff about that decision. Two months later, the defendant manage to locate and remove the wire with the use of a special x-ray machine known as a C-arm. Between the two surgeries, the plaintiff experienced pain and anxiety, for which she sued the defendant.

The plaintiff decided not to call an expert to testify about the applicable standard of practice. Instead, she claimed that her suit falls into the “foreign object” category governed by the res ipsa loquitur presumption. According to the plaintiff, this presumption should give her a jury trial.

The Court of Appeals disagreed: it reasoned—properly—that the “foreign object” rule doesn’t apply because the wire was not left in the plaintiff’s body unintentionally. Rather, it was designated to stay there by the defendant’s professional judgment. To prove that this judgment was a bad call, the plaintiff needed an expert witness. Without an expert, the jury could not properly evaluate the defendant’s professional judgment. The plaintiff therefore failed to establish the core element of res ipsa, namely, that the damaging event she came to court to complain about “is of a kind that ordinarily does not occur in the absence of someone’s negligence.”

Thus far, the Court’s reasoning was flawless. Based on that reasoning, the Court should have affirmed the direct dismissal of the plaintiff’s suit without further discussion.

But the Court didn’t stop here. It went on to say that the plaintiff also failed to establish another element of res ipsa: “exclusive control.” How come?

According to the Court, the defendant’s exclusive control wasn’t established because “several other individuals participated to an extent in the medical procedure.” This reasoning resembles the critique of the classic Ybarra decision (Ybarra v. Spangard, 154 P.2d 687 (1944)) that erroneously applied res ipsa to a medical procedure that involved eight professionals. But the present facts were different from Ybarra’s: in Ybarra, the court could not figure out who put the pressure against the patient’s shoulder, whereas in the present case, the court made a positive determination that it was the defendant who inserted the wire into the plaintiff’s body and decided to keep it there for two months.  So with all my respect to our highest court here in New York, I cannot agree with this part of its decision. So let’s call it an obiter!