There are some medical and surgical errors of which any person is competent to conclude from common experience that such things do not happen if there has been proper skill and care. An example of one of these is when an operation leaves a sponge or implement in the patient's interior, the thing speaks for itself without the aid of any expert's advice.
Defendant's doctor operated on decedent, and while decedent was unconscious, 10 pads were marked and made available for use during surgery. The surgeon placed several of the pads inside the decedent during the procedure, and accidentally left one of the pads inside the decedent. After the surgery, the decedent experienced pain, and subsequently had an 18-by-18 inch pad removed. However, the decedent died, about a month later, from infection. Plaintiffs sued defendant for medical malpractice. At trial, plaintiffs presented evidence of the similarity in size and type between the pad found in the decedent and those used in her surgery. They also provided evidence that such pads were placed only in operating rooms. Their experts testified as to the pad’s location inside the decedent and how it brought about her death. In opposition, defendants testified that all pads were properly accounted for after the surgery and that such pads were frequently left in places accessible to patients, and their experts opined that decedent had swallowed a pad. Plaintiffs’ experts, in response, stated that it would be physically impossible for decedent to have swallowed a pad and for it to have ended up in her bowel if she had swallowed it. The trial court denied plaintiffs’ request that the jury be given an instruction on res ipsa loquitur. The jury found in favor of defendants. A divided panel of the Appellate Division affirmed. Plaintiffs appealed.
Whether the lower courts should have issued a jury instruction for res ipsa loquitur?
Yes, the lower courts should have issued a jury instruction for res ipsa loquitur.
In reversing the lower courts' opinion, the court held that although in medical malpractice cases, the common knowledge of lay jurors could be inadequate to support a res ipsa loquitur inference, the oft-cited example of a surgeon leaving a sponge or foreign object inside a decedent's body was one of those examples where the inference of negligence could reasonably have been drawn upon a commonsense appraisal of the probative value of the circumstantial evidence. The court therefore reversed the orders with costs and granted a new trial.