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Res ipsa loquitur: “Foreign objects” and the inference of negligence

The doctrine

Res ipsa loquitur (Latin for “the thing speaks for itself”) is a legal doctrine frequently used in medical malpractice cases. As defined in the Encyclopedia of American Law, res ipsa is a legal presumption that the defendant is negligent that comes about upon proof that injury was caused by something that was within the exclusive control of the defendant and that the injury does not occur in the absence of negligence. A common example of res ipsa is what can happen during surgery, frequently when a “foreign object,” such as surgical scissors, etc., is unintentionally left in the patient’s body.

Court cases

In the 1997 case of Kambat v. St. Francis Hospital, a patient underwent a hysterectomy and then, following several months, a laparotomy pad was discovered inside the patient’s bowel. The defendant stated that the patient had tried to commit suicide by swallowing the pad, but the court decided that, although all other causes for the injury were not conclusively eliminated, it was rational to apply the doctrine of res ipsa.

In the 1999 case of Chisolm v. New York Hospital, a malpractice action was filed after a foreign object was left behind after surgery to remove a breast tumor. The defendants claimed that the case should have been dismissed because the statute of limitations had run. In New York, an action for medical malpractice must be filed within two years and six months from the date of the wrongful act, or one year of the discovery of that act. The court said that the statute had run because the discovery occurred after two years and six months of the surgery, and the tolling of the statute because of a “foreign object” did not apply because the defendants had not placed the object in the patient’s body and were allegedly negligent only because they had not discovered the object. This result points out the need to act quickly, in terms of filing a suit , if malpractice is suspected following a surgery.

Finally, in 2013, in James v. Wormuth, the plaintiff had a lung biopsy, during which a small part of a guide wire became dislodged. The surgeon could not find the wire and decide to leave it behind in the body. The plaintiff later experienced pain and underwent a procedure to remove the wire. He sued for malpractice under the res ipsa theory. The court stated that res ipsa, specifically the rule on “foreign objects,” did not apply, as the wire was left in the body intentionally, not unintentionally. Since there was no inference of negligence, the plaintiff would have to call expert witnesses to testify to the standard of care (that is, that the surgeon’s decision to leave the wire in the body was not in accordance with current medical professional judgment), which the plaintiff had declined to do, relying on his argument that negligence could be inferred from the facts of the situation. The plaintiff, therefore, lost his case. This case demonstrates that if you file a malpractice action, you are well advised to utilize expert witnesses to prove standard of care, even in situations that you believe involve the res ipsa doctrine.

Conclusion

If you undergo a surgical procedure, and it is later discovered that a foreign object was left behind in your body, you should immediately contact an experienced medical malpractice attorney to investigate the facts and determine whether res ipsa might be available and whether there is still time, under the statute of limitations, to file a suit for damages.

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