James v. Wormuth

2013 NY Slip Op 4839, 21 N.Y.3d 540, 974 N.Y.S.2d 308, 997 N.E.2d 133



Ordinarily, a plaintiff asserting a medical malpractice claim must demonstrate that the doctor deviated from acceptable medical practice, and that such deviation was a proximate cause of the plaintiff's injury.


The doctor informed the patient that he had not been able to find a localization guide wire after taking a biopsy of her lung, and that he had determined that it was better to leave it rather than continue the search procedure. The patient subsequently returned to the doctor complaining of pain she attributed to the lodged wire, and that it was so significant that it disrupted her ability to work. Approximately two months after the first procedure, the doctor performed a second operation, wherein he successfully located and removed the wire with the use of a special x-ray machine. Thereafter, the patient sued the doctor for malpractice based on res ipsa loquitur. The trial court granted a directed verdict in favor of defendants, doctor and practice, in the patient's medical malpractice action. On appeal, the appellate court affirmed the trial court's decision.


Should the doctor be found liable for medical malpractice?




The Court found that whether the doctor was in control of the operation did not address the question of whether he was in exclusive control of the wire, since several others participated in the procedure. The doctor exercised his professional judgment when he chose to leave the wire in the patient after the first surgery, and the patient did not present any expert evidence that by so doing, the doctor departed from accepted standards of medical care. Therefore, the directed verdict was properly entered.

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