Marguerite James, Appellant,v.David Wormuth, M.D., and CNY Thoracic Surgery, P.C., Respondents.BriefN.Y.May 28, 2013ARGUMENT TIME REQUESTED: 15 MINUTES ORAL ARGUMENT BY WOODRUFF CARROLL BREIF COMPLETED ON SEPTEMBER 23, 2012 STATE OF NEW YORK COURT OF APPEALS _______________________________________________________________ Marguerite James Plaintiff-Appellant v. David Wormuth and CNY Thoracic Surgery Inc. Defendants-Respondent ________________________________________________________________ BRIEF OF PLAINTIFF APPELLANT MARGUERITE JAMES 2005 2858 ________________________________________________________________ Woodruff Lee Carroll Esq. Attorney for Marguerite James The Galleries 441 South Salina St. Syracuse, N.Y. 13202 1-315-474-5356 1-315-474-5451 FAX Mark Dunn Esq. Attorney for Defendant David Wormuth and CNY Thoracic Surgery Inc. Martin, Ganotis, Brown, Mould, Currie 5790 Widewaters Parkway Syracuse, N.Y. 13214 1-315-449-2616 1-315-449-4315 FAX BENCH PRESS JURISDICTION STATEMENT The New York State Court of Appeals has jurisdiction over this claim pursuant to Civil Practice Law and Rules 5601 because this is an appeal from a final judgment of dismissal with a two judge dissent on the law. TABLE OF CONTENTS QUESTION PRESENTED 1 SHORT STATEMENT OF FACTS 2 STATEMENT OF FACTS 3 OUTLINE OF THE ARGUMENTS AND PROCEDURAL HISTORY 7 POINT I A JURY COULD INFER WITHOUT AN EXPERT THAT THE WIRE WOULD NOT HAVE BEEN LEFT IN THE PATIENT ABSENT NEGLIGENCE WITHOUT AN EXPERT 10 POINT II THE CASE IS SIMPLE ENOUGH FOR A JURY TO UNDERSTAND WITHOUT AN EXPERT 16 POINT III NO EXPERT IS NEEDED BECAUSE THE JUDGMENT DEFENSE IS NOT COMPATIBLE WITH RES IPSA LOQUITUR 18 POINT IV NO EXPERT IS NEEDED BECAUSE THE JUDGMENT CHARGE DOES NOT APPLY TO THE PHYSICIAN DECIDING WHICH OF TWO FORESEEABLE EVILS THAT RESULTED FROM HIS NEGLIGENCE IS THE LESSOR EVIL 20 POINT V NO EXPERT IS NEEDED BECAUSE THERE IS NO LIMIT TO THE FACTS THAT RES IPSA LOQUITUR CAN BE APPLIED TO 22 RES IPSA LOQUITUR IS MERELY A RULE OF EVIDENCE THAT IS APPLIED ALMOST UNIVERSALLY TO LIMITED FACTS THAT USE COMMON SENSE TO PROVE A LEGAL POINT 22 POINT VI THE JURY DECIDES THE IMPORTANCE OF THE STATE OF MIND AND INTENT OF THE DEFENDANT IN DECIDING IF THERE IF NEGLIGENCE ON THE FACTS OF THE CASE 26 POINT VII THE STATE OF MIND OF THE DEFENDANT AND HIS INTENTION ARE JUST ONE MORE PEICE OF CIRCUMSTANTIAL EVIDENCE FOR THE JURY TO CONSIDER IN DETERMINING FAULT WITHOUT AN EXPERT 27 POINT VIII THE CASES WHERE THE DEFENDANT INTENTIONALLY LEFT A FOREIGN OBJECT IN THE PATIENT AS PART OF THE AGREED TREATMENT HAVE NO RELEVANCE HERE AND NO EXPERT IS NEEDED TO EXPLAIN THIS 30 POINT IX PRIOR CASES OF THE COURT OF APPEALS RECOGNIZE A CLEAR DISTINCTION BETWEEN ITEMS LEFT IN THE PATIENT AFTER THE OPERATION THAT WERE INTENDED TO BE REMOVED (FOREIGN OBJECT CASES) AND ITEMS THAT WERE INTENDED TO BE LEFT IN THE PATIENT BUT WERE NOT REMOVED. (FIXATION CASES) 31 POINT X THE PLAINTIFF PROVED A CASE OF GROSS NEGLIGENCE/WILLFUL MISCONDUCT ON HER PRIMA FACIE CASE 36 POINT XI THE PLAINTIFF USED THE DEFENDANT PHYSICIAN AS AN EXPERT TO EXPLAIN CIRCUMSTANCES SURROUNDING THE 36 OPERATION POINT XII THE LOWER COURT ERRED IN NOT SENDING QUESTIONS OF FACT TO THE JURY 38 POINT XIII THERE ARE NO CREDIBILITY ISSUES IN FOREIGN OBJECT CASES FOR AN EXPERT OPINION 38 POINT XIV THE LOWER COURTS ERRED AS A MATTER OF LAW THE PLAINTIFF DID NOT WAIVE HER CLAIM 40 POINT XV THE COURT SHOULD AFFIRM THE DISSENT IN THE APPELLATE DIVISION 41 POINT XVI THE PLAINTIFF IS ENTITLED TO EVERY FACTUAL INFERENCE IN HIS FAVOR 41 POINT XVII THE PLAINTIFF PROVED RES IPSA LOQUITUR 44 POINT XIII THE ELEMENTS OF RES IPSA LOQUITUR 44 POINT XIX THE OPERATION WAS UNDER THE CONTROL OF THE DEFENDANT 44 POINT XX THE PLAINTIFF WAS ANESTHETIZED WHILE THE WIRE WAS LOST AND COULD BE NOT CONTRIBUTORILY NEGLIGENT 45 POINT XXI THE DEFENDANT OWES A DUTY TO THE PLAINTIFF AS A PHYSICIAN TO A PATIENT 45 POINT XXII CONCLUSION 47 TABLE OF CASES AND AUTHORITIES TABLE OF CASES Byrne v Boadle 2 Hurl. & Colt. 722, 159 Eng. Rep. 299, 1863 22, 25 Condit v. Baldwin 21 NY 219 25 Connors v. University Associates & Obstetrics and Gynecology 4 F3d 123, 2nd Cir. 1993 14 Crittelle v. Long Is.Jeswish-Hillside Med. CTR, 115 A.D.2d 632 [2d Dept. 1985] 14, Gravitt v. Newman, 114 A.D.2d 1000 [2d Dept. 1985] 14 Griffen v. Manice 166 N. Y. 192, 59 N. E. 926 1901 23, 24 Josephine Flanagan v. Mouint Eden General Hospital et al. 24 N.Y.2d 427 38 Kambat v. St Francis Hospital 89 N.Y.2d 489 (1997) 678 N.E.2d 456, 655 N.Y.S.2d 844 12, 13, 16, 23, 26, 41, 42, 44 Louis Goldstein v. The Pullman Company L.R.A. 1918B, 1060, 20 N.Y. 549, 116 N.E. 376 (1917) 24 Mark Rockefeller et al. v. George P. Moront et al. 81 N.Y.2d 560, 601 N.Y.S. 2d 86, 618 N.E.2d 119 10, 16, 30, 32 Mullen v. St. John 57 NY 567; 12 Sickles 567 (1874) 25 Nestorowich v. Ricotta 97 NY2d 393; 740 N.Y.S. 2d 668; 767 N.E. 2d 125 (2002) 18, 19 Palsgraf v Long Island RR 248 NY 339; 162 NE 99 27 Pike v Conslidated Edison Co 303 NY 1, 99 NE 2d 885 27 Szczerbiak v. Pilat, 90 N.Y.2d 553 (1997) 41 686 N.E.2d 1346, 645 N.Y.S.2d 252 43 States v Lourdes Hospital 100 N.Y. 2d 208, 762 N.Y.S. 2d 1, 792 N.E. 2d 151 12, 16, 30, 36 TABLE OF AUTHORITIES Pattern Jury Instructions 2:10A 35 Pattern Jury Instruction 2:12 21 Pattern Jury Instructions 2:56 Res Ipsa Loquitur 14 Pattern Jury Instructions 2:150 27 Prosser & Keeton sect 40 5th edition 12, 14, 26, 41 The Restatement of Torts 2d 328 D page 159 12, 13, 14, 26, 41 QUESTIONS PRESENTED 1. Physicians and Surgeons- Malpractice- wire fragment knowingly left in patients body following surgery- whether Plaintiff could rely on the Doctrine of res ipsa loquitur to establish prima facie case of medical malpractice or was required to establish the applicable standard of care and breach thereof through expert medical testimony The lower court dismissed a medical malpractice foreign object case because the Plaintiff did not have an expert to prove standard of case, judgment and intentional conduct 2. Was the Lower Court decision correct in all respects? Yes, but the Plaintiff disagrees and has brought the whole decision up for review. 3. Does the judgment charge apply to res ipsa loquitur? The lower court held: The judgment charge is grounds for dismissing a res ipsa loquitur case. 4. Does Res ipsa loquitur apply to these facts? The lower court held: No: the camera guide wire that was left in the Plaintiff did not allow an inference of negligence because of the intentional conduct of the Defendant and his professional judgment,the Plaintiff had to prove a case of ordinary negligence, 5. What is the effect of intentional conduct/judgment of the defendant by the Defendant on the res ipsa loquitur? The lower court held: Such conduct requires and expert and it is grounds for dismissal without one in a foreign object case. 1 SHORT STATEMENT OF FACTS The Defendant physician accidentally lost the guide wire for the biopsy camera in the patient. (R. 389, 393) He was unable to find the wire by searching with his eyes, gloves and metal clamps for 20 minutes. (R. 393, 389) An x-ray was taken the day of the operation and the wire was located on that x-ray. (R. 305, 306) The doctor knew or could have known where the wire was but did not remove it the day of the operation. (R. 305, 306) The physician decided to abandon removing the wire and leave the wire in the patient. (R. 292) After several months of increasingly excruciating pain the Plaintiff demanded another operation to remove the wire. (R. 191-197, 252, 253, 210-214) The wire was found in the chest wall with a kink in it around a muscle part of which had to be removed to remove the wire. (R. 304, 395) This would explain why the wire pulled out of the lung when the lung was deflated and remained in the chest wall, the wire had a kink around a muscle. The wire was very painful and ruined the Plaintiffs Christmas holiday and caused her to lose customers at her hairdressing salon. (R. 191-197, 252, 253, 210-214) Eventually, unable to take the pain any more she persuaded the doctor to remove the wire. (R. 191-197, 252, 253, 210-214) Dr. Wormuth had been telling her it was just the pain from the operation. (R. 242) The second operation was simple, not especially painful and involved several small (3 mm) incisions. (R.289,214-216) The pain from the wire was gone immediately after the operation. (R. 216) Additionally, the doctor did not know you could use a c-arm to locate the wire until mid December. (R. 295) 2 STATEMENT OF FACTS The Plaintiff was diagnosed with a lesion on her lung. (R. 379) Fearing a potential cancer the parties agreed to a lung biopsy to determine if the lesion was cancerous. (R. 379-381) The Plaintiff retained the Defendant to do the operation. (R. 297-298) The patient was told to expect half her lung to be removed (lobectomy) in this operation if the test came back positive for cancer. (R.259, 203, 380) Because of the location of the lesion a different biopsy procedure was used than normal. (R. 271, 272, 273) The procedure was the same one used in a breast biopsy. (R. 273) In this procedure a wire is inserted by radiologist into the chest of the patient in the area adjoining the node. (R. 273) The wire is used to locate the node. (R. 273) The patient is transported from the CT scanner to the operating room with a cup over the wire. (R. 274, 275) In this case the wire was trimmed to the body of the patient. R. 275 The lung is deflated and the wire is supposed to pull through the chest wall of the patient attached to the lung. (R. 275, 276) Then the wire lies on the deflated lung and is localized using a camera. (R. 275) Then a stapler takes the node and a sample of adjoining skin and removes the wire. (R. 275, 303) The sample is sent up to the laboratory for a biopsy to see if it is cancerous. (R. 275) If the sample was cancerous the Plaintiff had signed a release for and the doctor was prepared to perform a loboectomy and remove the cancerous material from the lung during this operation up to half of the lung. (R.259, 203, 380) In this case the procedure went awry. The wire was present and trimmed after transport to the operation room. (R. 275) But when the lung was deflated, the wire was retained in the wall of the chest (R. 281) and had pulled out of the lung. (most probably due to a kink in the wire that 3 was found attached to a muscle on removal (R. 304, 395)) The doctor was unable to localize the wire on the lung. (R. 275, 393, 389, 355) The wire was useless for locating the node on the lung because it was retained in the chest wall instead of being visible on the lung. (R. 281, 275, 393, 389, 355) However, the site of the wire insertion in the lung was visible. (R. 282, 356, 389) This area was removed and the tested and came back negative. (R. 283, 356, 389) While waiting for the biopsy sample to be tested the doctor attempted to locate and remove the missing guide wire. (R. 355, 389, 282) He searched with his eyes, gloved hands and clamps for 20 minutes but the wire was not able to be located. (R. 355, 389, 282) It was not the doctors original intention to leave the wire in the patient nor was it part of the operation procedure. (R. 291, 292) While the patient was still unconscious on the day of the operation an x-ray was done that located the wire. (R. 305) The doctor decided not to remove the wire and left it in place because his experience was that if the wire became a problem then it could be removed and a larger painful incision was need to remove it. (R. 292) Therefore he "abandoned" the wire. (R. 292) Between operations in Mid December the doctor stated the he had learned that a c-arm (a portable x-ray machine) could locate the wire. (R. 289-291, 295) The machine was available the day of the first operation but was not requested or used. (R. 291, 215) The doctor testified that the same incision might be used to retrieve the wire. (R. 294) After the operation the patient was in extreme pain, several months later she was unable to stand the pain and demanded the wire be removed. (R. 191-197, 252, 253, 210-214) The pain 4 ruined her holidays, taking care of her kids and lost her customers at the hairdressing studio because she could not work. (R. 191-197, 252, 253, 210-214) A second operation was scheduled to remove the wire. (R. 252, 253) The wire was located with a portable c-arm x-ray machine. (R. 289-291) A small 3 mm incision was made (R. 289). The wire was removed with mosquito clamps. (R. 289) The wire had wrapped itself around a muscle at a kink in the wire, a portion of which remained on the wire after its removal from the patient. (R. 304, 395) The second operation was not very painful. (R. 215, 216) The pain ceased when the wire was removed. (R. 216) The following questions of fact, inconsistencies and contradictions exist in the doctors testimony as to his reasons for leaving the wire: 1. The physician stated that patients tolerate wires. (R. 292) Then he states: if not the wire could be removed (R. 292) but on removal the wire had muscle tissue attached to it when removed from being wrapped around a muscle. (R. 304, 395) This is not tolerating a wire. 2. He states that a larger incision was need to locate and remove the wire (R. 292, 390) but the removal operation only required on a 3 MM incision (R. 289) and the wire removal might have been done with the original cuts on the day of the operation. (R. 294) A jury could reasonably infer that: something went wrong with operation because there was a wire left in the patient, the kink was created in the wire during or after insertion and trimming. This caused the wire to be attached to and retained in the chest wall and pull out from the deflating lung. Further, the doctor was untrained in how to locate the wire once lost because he did not know to use a c-arm, the doctor did not learn of the c-arm procedure until six week 5 after the operation (R. 289-291, 295), that he had failed to consult with persons who did know how to locate the wire such as a radiologist, that searching with fingers, clamps and eyes was improper due to the availability of the C-arm machine, and he had trimmed the wire to the skin instead of leaving a long tail on it for retrieval. (R. 275, 277) The trial was terminated at the close of plaintiff proof and a verdict directed for the defense. As such we are dealing with half a record and no cross examination of the physician or expert. 6 OUTLINE OF THE ARGUMENTS AND PROCEDURAL HISTORY The defendant lost the camera guide wire in the Patient and had to do a second operation to retrieve it. The Plaintiff is entitled to every factual inference in his favor. He only need prove that the wire was lost in the patient and that she needed a second separate operation, that she was anesthetized during the operation and that she retained the Defendant doctor who was in complete control of the operation for a jury to decide the case. All of these were admitted by the Defendant doctor. Based on the doctors admissions of Res Ipsa loquitur the Plaintiff did not produce an expert. The Plaintiff also questioned the Defendant Doctor on the facts and circumstances surrounding the operation, the availability of equipment to locate the wire after it was lost, his state of mind at the time and more. eliciting additional proof does not require an expert. In addition to the normal Res ipsa Loquitur case the foreign object was intentionally left in the patient after it was located by the physician. Plaintiff contends the physician was reckless and grossly negligence to leave the foreign object in after it was found. This issue first appeared on trial with an undisclosed x-ray. The Defendant defended on the grounds of medical judgment and a foreign object that was left in intentionally and that the case required an expert. The Plaintiff replied that: the case only required common sense in that the wire would not be present in the Plaintiff absent negligence and an expert was not necessary as stated by every state, commentator and the Court of Appeals. 7 The Plaintiff contends that medical judgement is irrelevant under prior Court of Appeals cases and was by definition not compatible with Res Ipsa Loquitur. The alleged Physicians judgment/intention to leave the wire in was a foreseeable result of his own negligence in previously losing the wire and his subsequent decisions and judgements were really attempts to mitigate damages not subject to physicians judgment/intention. The Plaintiff contends that there is a well established legal distinction between foreign objects (intended to be removed) and (fixation devices) intended to be left. This is a foreign object case not a fixation case because a camera guide wire was not intended to be left in the patient. As a foreign object case no expert is necessary. The state of mind and intention of the physician are just one more fact to be considered in the circumstantial evidence of the case by the jury. The Plaintiff asserted two theories at the close of his direct case one based ordinary negligence and one based on res ipsa loquitur. He did not waive the res ipsa loquitur claim or any part of it. This issue is however irrelevant as on any set of facts and circumstances in this case the Plaintiff goes to the jury for the reasons stated herein. The case was dismissed on summary judgment and reversed by the Appellate Division because defendants expert affidavits were insufficient. (James v. Wormuth 74 AD3d 1895) On trial the case was dismissed at the end of Plaintiffs case on the grounds that this was not a res ipsa loquitur case because the wire had been left in intentionally and a jury needed expert testimony regarding the c-arm. The Lower Court ignored the distinction between the separate claims of the ordinary negligence case and separate res ipsa case being asserted.(R. 47-61). 8 The Appellate Division affirmed with two dissents stating since the wire was not unintentionally left inside the patient but intentionally left by the Doctor as a matter of his professional judgment to save the Plaintiff the pain of removal. The dissent stated "although the search for the foreign object lost inside Plaintiff was intentionally abandoned, it cannot be said object itself was intentionally left in the plaintiff during the procedure." The dissent also correctly read the motion to dismiss debate to say that the Plaintiff abandoned no argument at all including and especially res ipsa loquitur on the entirety of the facts of the case. (R. 25-28) 9 POINT I A JURY COULD INFER WITHOUT AN EXPERT THAT THE WIRE WOULD NOT HAVE BEEN LEFT IN THE PATIENT ABSENT NEGLIGENCE WITHOUT AN EXPERT The camera guide wire is a foreign object under the law of the State of New York. Mark Rockefeller et al. v. George P. Moront et al. 81 N.Y.2d 560, 601 N.Y.S. 2d 86, 618 N.E.2d 119 states: In determining whether an object which remains in the patient constitutes a **122 ***89 “foreign object,” the courts should consider the nature of the materials implanted in a patient, as well as their intended function. Objects such as surgical clamps, scalpels, and sponges are introduced into the patient's body to serve a temporary medical function for the duration of the surgery, but are normally intended to be removed after the procedure's completion. Clearly, when such objects are left behind, no assessment of the medical professional's expert judgment or discretion in failing to remove them is necessary to establish negligence. The physician Defendant admitted that he did not intend the wire to be left in permanently stating (R. 291, 292): Q. So it was not a normal part of the operation procedure, then, to leave this five centimeter wire in Marguerite James? A. My intent when I started the procedure was not to do that, but part of my job is to respond - - Q. YOU got --. MR. DUNN: Excuse me, your Honor. Again, I ask that the doctor be able to answer the question. THE COURT: Again, it's direct examination. Ask the question. I think he should have an opportunity to answer it. Q. Okay. 10 A. My intent at the beginning of the procedure was not to leave the wire, but part of my job is to respond to new information and continuing to reevaluate............ Initially, the doctor lost the wire, when it did not appear on the camera. (R. 275, 393, 389, 355) After searching for the wire, the wire continued to be lost. (R. 355) The 10/28/04 operating report states (R. 355): We used a CT guided needle localization technique in order to mark the area of the lung. At the time we inducted pneumothorax and examined the lung we were unable to visualize the wire or the needle. The needle had been trimmed at the skin. Subsequent efforts to localize the needled feeling both beneath the skin above the muscle beneath the muscle and above the rib and beneath the rib in the lateral pleural surface we were unable to localize approximately 4 cm segment of wire. ......................... The lung was visualized. We immediately noticed that we were unable to visualize the wire, The pleural space was searched for the wire and it was unable to be found. We palpated underneath the skin, above the muscle, below the muscle, above the rib below the rib without being able to identify any wire nor feel it with an instrument. Rather than extend this incision and cause further discomfort we opted to leave the wire in place. 12/28/04 (R. 393) The patient is a 47 year old female who at the end of October underwent thorascopic excision of a small lesions in the right lower lobe. This was localized with a needle. During the procedure the needle could not be found. We made the decision to leave it it as we did not think it would cause any harmful effects and thought the bigger incision to remove it would be more deleterious. Subsequently the Patient developed post operative pain and has requested that the wire be removed and she presents for this procedure. 11 The courts do not require extensive complicated expert testimony to determine that absent negligence the wire would not have been found in the body of the Plaintiff after completion of the operation. The wire does not occur there naturally and there is only one possible source: the operation. In cases where a foreign body was left in the patient during surgery the courts only require a common sense inference from the circumstantial evidence of the case that the injury could not happen absent negligence. (Kambat v. St Francis Hospital 89 N.Y.2d 489 (1997) 678 N.E.2d 456, 655 N.Y.S.2d 844) Experts are used to inform the jury about things that are outside of their ordinary experience. In a res ipsa case the purpose would be to educate the jury as to the likelihood that the occurrence would take place without negligence where a basis of common knowledge is lacking. (States v Lourdes Hospital 100 N.Y. 2d 208, 762 N.Y.S. 2d 1, 792 N.E. 2d 151) But: "A narrow category of factually simple medical malpractice cases requires no expert to enable the jury reasonably to conclude that the accident would not happen without negligence” (States v Lourdes Hospital 100 N.Y. 2d 208, 762 N.Y.S. 2d 1, 792 N.E. 2d 151) There are two recognized groups of cases requiring no expert 1) injuries away from the operation site 2) foreign objects in the patient after completion of the operation. (Kambat v. St Francis Hospital 89 N.Y.2d 489 (1997) 678 N.E.2d 456, 655 N.Y.S.2d 844) In the case of a foreign body left in a patient no expert is needed to say that the doctor was negligent leaving the foreign body in the patient. (Prosser & Keeton sect 40 5th edition, the PJI 2:56 the prior decision of Kambat v. St Francis Hospital 89 N.Y.2d 489 (1997) 678 N.E.2d 456, 655 N.Y.S.2d 844 etc) The Court of Appeals and the The Restatement of Torts 2d 328 D page 159 concur that foreign objects left in a patient require no expert to prove a prima facie case 12 of negligence. (See supra for cites) The prima facie case can be inferred from the presence of the foreign object in the Plaintiff. Foreign objects have been held to be scalpels, hydrostats, needles, laparotomy pads, sponges etc. The prima facie case is proven by the inference of negligence by common sense without expert testimony from presence of the foreign object in the Plaintiff. (See Kambat Kambat v. St Francis Hospital 89 N.Y.2d 489 (1997) 678 N.E.2d 456, 655 N.Y.S.2d 844) The burden then shifts to the defendant to create an explanation. The following support this approach: Kambat v. St Francis Hospital 89 N.Y.2d 489 (1997) 678 N.E.2d 456, 655 N.Y.S.2d 844 states: Here, the Appellate Division majority concluded that plaintiffs' proof at trial failed to satisfy any of the three conditions. With regard to the first requirement in particular, the appellate court agreed with the trial court that a lay jury could not determine whether the occurrence was of a kind that ordinarily does not occur in the absence of negligence without evaluating the parties' expert testimony and, therefore, res ipsa loquitur did not apply. .................................... Widespread consensus exists, however, that a narrow category of factually simple medical malpractice cases requires no expert to enable the jury reasonably to conclude that the accident would not happen without negligence. Not surprisingly, the oft-cited example is where a surgeon leaves a sponge or foreign object inside the plaintiff's body (see, e.g., Connors v University Assocs. in Obstetrics & Gynecology,, 4 F.3d at 127, supra; Haddock v Arnspiger, 793 S.W.2d at 951, supra; Wasem v Laskowski, 274 N.W.2d at 225, supra; Todd v Eitel Hosp.,306 Minn at 260, 237 N.W.2d at 361, supra; Restatement [Second] ofTorts §328 D, comments d, g, illustration 9). As explained by Prosser and Keeton in their classic treatise: "There are, however, some medical and surgical errors on which any layman is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care. When an operation leaves a 13 sponge or implement in the patient's interior, * * * the thing speaks for itself without the aid of any expert's advice."(Prosser and Keeton, Torts § 40, at256-257 [5th ed][emphasis added].) Manifestly, the lay jury here did not require expert testimony to conclude that an 18-by-18-inch laparotomy pad is not ordinarily discovered inside a patient's abdomen following a hysterectomy in the absence of negligence. Thus, plaintiffs' undisputed proof that this occurred satisfied the first requirement of res ipsa loquitur. We therefore need not resolve today the question whether res ipsa loquitur is applicable in medical malpractice cases in which the jury is incapable of determining whether the first res ipsa loquitur condition has been met without the aid of expert testimony. The Restatement of Torts 2d 328 D page 159 states: On the other hand there are other kinds of medical malpractice , as where a sponge is left in the plaintiff''s abdomen after an operation, where no expert is needed to tell the jury that such events do not usually occur in the absence of negligence. The cases have recognized items left in people after operations such as sponges, pads and needles etc. as appropriate foreign bodies for res ipsa loquitur. (See PJI 2:56 Res Ipsa Loquitur: Crittelle v. Long Is. Jeswish-Hillside Med. CTR, 115 A.D.2d 632 [2d Dept. 1985] (laparotomy pad), Gravitt v. Newman, 114 A.D.2d 1000 [2d Dept. 1985] (tip of a vein stripper) Connors v. University Associates & Obstetrics and Gynecology 4 F3d 123, 2nd Cir. 1993: Prosser & Keeton sect 40 5th edition.) The claim is recognized in 50 states and Prosser and Keeton, Torts § 40 [5th ed]. The wire was not harmless. The Defendant testified (R. 304 see also R. 395): Q. It says there was attached a piece of red-tan soft tissue. What is that? A. This wire had acquired a slight kink in it at one point either where the hook was or where it might have been angled during 14 retrieval, and that brought out a very small piece of tissue, muscle tissue, most likely it was red and tan. Q. So it was actually stuck on something? A. Yeah. It wasn't free floating. This was sort of lodged in muscle layers, and so the act of drawing it out, the wire has memory, so if it gets bent around something, when you pull on it, it may pull a little piece of something when it comes out. An x-ray done the day of the operation was produced on trial, that had not been seen before, and the wire was circled in black on it. (R. 306) On trial the Defendant Physician stated: R. 305 A. This is a chest x-ray taken the day of surgery. ..................... And then someone has made a black circle and in the center of the black circle is a very faint white line that represents the wire that we could not find. It is well below about an inch apparently an inch or so below the level of the tip of the scapula with the arm down. 15 POINT II THE CASE IS SIMPLE ENOUGH FOR A JURY TO UNDERSTAND WITHOUT AN EXPERT The liability case is nothing more than the wire and its story as testified by the Defendant Physician. (See Wormuth Direct 260-308) The Doctor stated to who put the wire in, who lost the wire, why the wire was put in, how the wire was put in, why the wire was not removed the equipment and training needed for removing the wire, the physicians training etc. An expert adds nothing to the knowledge of the jury on these facts. States v Lourdes Hospital 100 N.Y. 2d 208, 762 N.Y.S. 2d 1, 792 N.E. 2d 151 states: The purpose of expert opinion in this context is to educate the jury, enlarging its understanding of the fact issues it must decide. However, the jury remains free to determine whether its newly- enlarged understanding supports the conclusion it is asked to accept Only common sense is needed to determine that the wire should not have been lost or, knowingly sewn up in the patient and a second operation done to remove it. Nothing more need be shown. This is all standard proof in a res ipsa loquitur case. The wire just like the scalpels, sponges, pads, needles etc that were lost in the other cases. ( See Point V, XIII) The courts and commentators have repeatedly held that: The foreign object would not have been present in the Plaintiff absent negligence. (Kambat v. St Francis Hospital 89 N.Y.2d 489 (1997) 678 N.E.2d 456, 655 N.Y.S.2d 844, States v Lourdes Hospital 100 N.Y. 2d 208, 762 N.Y.S. 2d 1, 792 N.E. 2d 151) 16 Mark Rockefeller et al. v. George P. Moront et al. 81 N.Y.2d 560, 601 N.Y.S. 2d 86, 618 N.E.2d 119 states that experts are used to inform the jury about things that are outside of their ordinary experience. Jurors are more than capable of understanding that if an item was supposed to be removed in an operation it should be removed and not left in the patient. 17 POINT III NO EXPERT IS NEEDED BECAUSE THE JUDGMENT DEFENSE IS NOT COMPATIBLE WITH RES IPSA LOQUITUR The judgment charge is unavailable in a res ipsa case. So no expert is needed to explain medically acceptable alternatives. The Court of Appeals has ruled Mark Rockefeller et al. v. George P. Moront et al. 81 N.Y.2d 560, 601 N.Y.S. 2d 86, 618 N.E.2d 119 states: In determining whether an object which remains in the patient constitutes a **122 ***89 “foreign object,” the courts should consider the nature of the materials implanted in a patient, as well as their intended function. Objects such as surgical clamps, scalpels, and sponges are introduced into the patient's body to serve a temporary medical function for the duration of the surgery, but are normally intended to be removed after the procedure's completion. Clearly, when such objects are left behind, no assessment of the medical professional's expert judgment or discretion in failing to remove them is necessary to establish negligence. The judgment charge requires two medically acceptable alternatives to choose from. (Nestorowich v. Ricotta 97 NY2d 393; 740 N.Y.S. 2d 668; 767 N.E. 2d 125 (2002)) If you have res ipsa loquitur case based on a foreign body such as a scalpel, wire or a pad when the court rules on res ipsa loquitur that ruling holds that this is obvious negligence and below the standard of care as part of the prima facie case. The courts have routinely held that a scalpel or wire or a sponge is not a medically acceptable to be left in the patient. (See Point V, III, IV) So there are not several medically acceptable alternatives for the physician to choose from. Res ipsa loquitur by definition is based on common sense that the foreign object (a scalpel, a laparotomy pad, a needle, a wire, sponge etc) is obviously medically unacceptable 18 being left in the patient and therefore the judgment charge cannot not apply. The same is true with the application of the rule to other res ipsa claims such a porn movie involving bestiality, a barrel or building falling into a busy street etc. Judgment is excluded by the nature of the case and the ruling that the facts of the case speak for themselves. Nestorowich v. Ricotta 97 NY2d 393; 740 N.Y.S. 2d 668; 767 N.E. 2d 125 (2002) requires two or more medically acceptable treatment alternatives to give the judgment charge to the jury. Nestorowich states: As it has developed, the charge has been appropriate in instances where parties present evidence of a choice between or among medically acceptable alternatives or diagnoses (Oelsner v. State of New York, 66 N.Y.2d 636, 495 N.Y.S.2d 359, 485 N.E.2d 1024 [1985]; Martin, 281 A.D.2d at 866, 727 N.Y.S.2d 836; 1A N.Y. PJI3d 701, caveat 2 [2001] ). The “error in judgment” charge, as articulated in PJI 2:150, paragraph (5), states: “[a] doctor is not liable for an error in judgment if [the doctor] does what (he, she) decides is best after careful evaluation if it is a judgment that a reasonably prudent doctor could have made under the circumstances” (PJI 2:150, ¶ [5]). Absent a showing that “defendant physician considered and chose among several medically acceptable treatment alternatives” the error in judgment charge has been found inappropriate (Martin, 281 A.D.2d at 866, 727 N.Y.S.2d 836). For the judgment charge to apply the Defendant must prove is that loosing a scalpel, a laparotomy pad, a wire, a needle or some other such device (that did not belong left in the patient in the first place) is a medically acceptable choice. There is a long history of courts holding foreign objects in patients (such as a sponge) prima facie negligence and therefore medically unacceptable malpractice by using the doctrine of Res Ipsa Loquitur. ( See point III, IV, V) The judgment charge does not apply where the doctor violated the standard of care with medically unacceptable practices. What happened to the patient has to be medically acceptable 19 before you can have a choice between two alternative treatments as that is always one of the alternative treatments. Common sense, the courts and the commentators agree that leaving a scalpel, a pad, a sponge or a wire in a patient you have violated the standard of care and that make it medically unacceptable and makes out a prima facie case of negligence. (PJI 2:65 noting res ipsa is particularly applicable to foreign object cases) Intentionally leaving the foreign object in the patient does not exonerate the Defendant. (See point I -X-) The physician deviated from the medically acceptable path when he lost the foreign object in the patient. After that the Doctor is liable for all the foreseeable subsequent things that happen. In this case foreseeable events include: being not able to find the foreign object (R. 389, 393), abandoning the search (R. 292), locating the foreign object (R. 305) and then deciding to leave the foreign object inside the Plaintiff reasoning that was the lessor of two evils. (Neither of which should have be fallen the Plaintiff without his negligence. (R. 292) POINT IV NO EXPERT IS NEEDED BECAUSE THE JUDGMENT CHARGE DOES NOT APPLY TO THE PHYSICIAN DECIDING WHICH OF TWO FORESEEABLE EVILS THAT RESULTED FROM HIS NEGLIGENCE IS THE LESSOR EVIL The judgment charge is inapplicable and therefore no expert is needed because the decisions are causally related to the negligence of the Defendant. The physician admittedly lost the wire. This placed the patient at an increased risk of injury. After that the Doctor had a series of decisions that are choices between two evils. These decisions are all causally related to the loss of the wire in the patient. The Doctor was left with a choice to remove the wire possibly with a painful incision or to leave the wire in and place the 20 patient at risk because the wire was lost in the first place. Since these decisions would not have occurred without the original negligence, the judgment defense is inapplicable to the foreseeable decisions resulting from the original act of negligence. The physician is liable for all the foreseeable injuries caused by his negligence. (PJI 2:12) He is not exonerated by the judgment defense because he was forced to exercise his judgment in deciding which evil stemming from the loss of the wire is less damaging to the patient. This is mitigation of damages by the physician, not the judgment charge. From the perspective of the unconscious innocent plaintiff this just goes from bad to worse. The negligence of the physician has sent the anesthetized Plaintiff down a road she cannot control because she is unconscious, he is responsible for where the road leads, the decisions that road entails. None of this is grounds for dismissal because the Plaintiff did not have an expert. This is mitigation of damages by the Defendant to which the judgment charge has no application. Since the judgment charge is inapplicable no expert is needed. 21 POINT V NO EXPERT IS NEEDED BECAUSE THERE IS NO LIMIT TO THE FACTS THAT RES IPSA LOQUITUR CAN BE APPLIED TO RES IPSA LOQUITUR IS MERELY A RULE OF EVIDENCE THAT IS APPLIED ALMOST UNIVERSALLY TO LIMITED FACTS THAT USE COMMON SENSE TO PROVE A LEGAL POINT Res ipsa loquitur is a phrase used for any set of facts that are self evident. Res ipsa Loquitur is an inference made from rare circumstantial evidence in a case that conclusively proves the prima facie case of the Plaintiff beyond argument. The burden of proof then shifts to the defendant. Res ipsa loquitur represents a pragmatic determination by the courts that on the narrow facts of certain rare cases the Plaintiff need prove no more. Res ipsa loquitur has been used in criminal cases, child abuse and others. The rule is nothing more than common sense applied to certain rare factual patterns that by their nature prove negligence or the required legal principal. Children with gonorrhea, barrels falling into busy streets, collapsing buildings, scalpels left in patients, needles left in patients, sponges, laparotomy pads, left in patients, and pornography. All these speak for themselves. The translation of "Res ipsa loquitur" is commonly used in contract cases and with documents in the standard objection "the document speaks for itself." Res ipsa loquitur has proven extremely handy in factual situations where a pool of defendants deny culpability when someone obviously was at fault and one entity is in control of the pool of defendants. Such as warehouse employees that deny any one was responsible for the barrel falling out the second story window (Byrne v Boadle 2 Hurl. & Colt. 722, 159 Eng. Rep. 22 299, 1863) or an operating room whose pad count obviously is fraudulent or wrong (See Kambat v. St Francis Hospital 89 N.Y.2d 489 (1997) 678 N.E.2d 456, 655 N.Y.S.2d 844). The rule prevents the parties from getting the benefit of their fraudulent conduct. The New York Court of Appeals has held that Res ipsa loquitur is a rule of evidence of universal application. The Court of Appeals stated: Griffen v. Manice 166 N. Y. 192, 59 N. E. 926 1901 states: I think a single illustration will show the correctness of the view of the learned authors, that it is not the injury, but the manner and circumstances of the injury, that justify the application of the maxim and the inference of negligence. If a passenger in a car is injured by striking the seat in front of him, that, of itself, authorizes no inference of negligence. If it be shown, however, that he was precipitated against the seat by reason of the train coming in collision with another train, or in consequence of the car being derailed, the presumption of negligence arises. The res, therefore, includes the attending circumstances, and, so defined, the application of the rule presents principally the question of the sufficiency of circumstantial evidence to establish, or to justify the jury in inferring, the existence of the traversable or principal fact in issue, the defendant's negligence. The maxim is also in part based on the consideration that, where *194 the management and control of the thing which has produced the injury is exclusively vested in the defendant, it is within his power to produce evidence of the actual cause that produced the accident, which the plaintiff is unable to present. Neither of these rules—that a fact may be proved by circumstantial evidence as well as by direct, and that where the defendant has knowledge of a fact but slight evidence is requisite to shift on him the burden of explanation —is confined to any particular class of cases, but they are general rules of evidence applicable wherever issues of fact are to be determined either in civil or criminal actions. In a prosecution for selling liquor without license, it is sufficient for the people to show the sale, leaving the defendant to show his license, if he has one. Potter v. Deyo, 19 Wend. 361. Recent possession of stolen goods warrants the inference that the possessor is the thief, both because **927 experience shows that usually the party so in possession is the thief, and because the knowledge of how he came 23 into possession of the goods is generally exclusively his own. In Breen v. Railroad Co., 109 N. Y. 297, 16 N. E. 60, The principal was reiterated again in the case of Louis Goldstein v. The Pullman Company L.R.A. 1918B, 1060, 220 N.Y. 549, 116 N.E. 376 (1917) states: The tendency in the more modern decisions in cases like this is to put the company on its defense when the loss is inconsistent with the proper care and the facts are in its *554 possession, because ‘the thing itself speaks.‘ CULLEN, J., in Griffen v. Manice (166 N. Y. 188, 193, 194), writing of res ipsa loquitur, says that negligence may be established by proof of circumstances in all cases; that ‘it is not the injury, but the manner and circumstances of the injury, that justify * * * the inference of negligence;‘ that ‘where the defendant has knowledge of a fact but slight evidence is requisite to shift on him the burden of explanation;‘ that, therefore, in proper cases the jury may be permitted to infer negligence from the accident and the attending circumstances in the absence of an explanation, and that these rules are general, not confined to any particular class of cases, but applicable wherever issues of fact are to be determined. The surrounding circumstances here suggest that a loss ordinarily would not happen if care commensurate to the duty of active watchfulness had been exercised, and the burden should shift to the defendant to show what degree of care and diligence was actually exercised. When considered from this perspective the state of mind, intent, recklessness etc. of the Defendant is just one more fact the jury can use to determine whether the defendant was negligent. Res ipsa has been used in criminal cases, child abuse cases and other places. It is a rule of evidence applicable when the proof of a certain the element of the claim to be proven is clearly beyond discussion. Such as an 8 year old with gonorrhea, pornography (just look at it), a collapsed building, a scalpel left in a patient, a barrel falling from a second story into a busy street, patients who lost teeth when their foot was being operated on etc. 24 These facts only need a common sense interpretation that the injury could not occur absent negligence. In this case a foreign object left in a patient after an operation is a classic ground for res ipsa loquitur recognized by every commentator and in every state. The term is in latin and quoting Marcus Tullius Cicero from 50 BC. Res ipsa loquitur first appears in a murder case in ancient Rome in 52 BC. (Pro Milone) The accused murderer (Milone) was defended by Marcus Tullius Cicero. Cicero used res ipsa loquitur for the proposition that Milone acted in self defense because he was completely unprepared for a fight while Clodius, the provacatur of the fight, arrived ready to fight with a retinue of armed gladiators. Cicero says these facts speak for themselves so as to prove Milone's claim of self defense. The phrase was first cited in the negligence case of Byrne v Boadle 2 Hurl. & Colt. 722, 159 Eng. Rep. 299 (1863) in which it was applied it to a barrel falling from a second story warehouse onto the Plaintiff. New York first applied res ipsa loquitur to a contact in a usury case in Condit v. Baldwin 21 NY 219. The rule was eventually applied in Mullen v. St. John 57 NY 567; 12 Sickles 567 (1874) to a collapsing building . It has also been applied in criminal cases, child abuse cases, contract and pornography cases. There is nothing about Res ipsa loquitur that says that it should not be applied because of intentional conduct. Res ipsa loquitur like the hearsay rule is a rule of evidence of universal application that prevents fraud and deceit while saving time and money simplifying cases in which the facts make out an indisputable prima facie case in and of themselves as a matter of common knowledge. 25 POINT VI THE JURY DECIDES THE IMPORTANCE OF THE STATE OF MIND AND INTENT OF THE DEFENDANT IN DECIDING IF THERE IF NEGLIGENCE ON THE FACTS OF THE CASE In Res ipsa loquitur foreign object cases the jury makes the inferences from the totality of the circumstantial evidence. The State of mind and intentional conduct of the Defendant is just one more piece of circumstantial evidence for the jury to consider. Nor is there anything about intentional conduct that requires an expert. Juries routinely deal with intentional conduct. The Defense has been attempting to separate negligently losing the wire from intentionally not removing the wire. Under res ipsa loquitur the entirety of the circumstantial evidence is just given to the jury without an expert and they make a common sense appraisal of the circumstantial evidence. No such distinction exists. Kambat v. St Francis Hospital 89 N.Y.2d 489, 678 N.E.2d 456, 655 N.Y.S.2d 844 (1997) states: To rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that “it is more likely than not” that the injury was caused by defendant's negligence (Restatement [Second] of Torts § 328 D, comment e). Stated *495 otherwise, all that is required is that the likelihood of other possible causes of the injury “be so reduced that the greater probability lies at defendant's door” (2 Harper and James, Torts § 19.7, at 1086). Res ipsa loquitur thus involves little more than application of the ordinary rules of circumstantial evidence to certain unusual events (see, Prosser and Keeton, Torts§ 40, at 257 [5th ed] ), and it is appropriately charged when, “upon ‘a common sense appraisal of the probative value’ of the circumstantial evidence, * * *[the] 26 inference of negligence is justified” (George Foltis, Inc. v. City of New York,287 N.Y. 108, 115, 38 N.E.2d 455). POINT VII THE STATE OF MIND OF THE DEFENDANT AND HIS INTENTION ARE JUST ONE MORE PEICE OF CIRCUMSTANTIAL EVIDENCE FOR THE JURY TO CONSIDER IN DETERMINING FAULT WITHOUT AN EXPERT The maxim is: the risk to be perceived defines the duty to be obeyed. (Palsgraf v Long Island RR 248 NY 339; 162 NE 99). In this case the knowledge of the physician that the wire was in the patient defines the his duty. The state of mind of the defendant and his knowledge are relevant to proving the standard of care in negligence. ( PJI 2:10, Pike v Consolidated Edison Co 303 NY 1, 99 NE 2d 885) The state of mind and intention of the defendant is just one more fact to be considered in determining duty and standard of care by the jury. (PJI 2:10) In medical malpractice cases the knowledge of the doctor is very important to determine the standard of care. (See: PJI 2:150) If the tortfeasor knew better but failed to use his knowledge he is liable. The Doctor is liable if he ought to have known something as he has a professional duty to keep abreast of changes in the field. The jury routinely considers people intentionally ignoring their duty when the tortfeasor knew better and ought to have done better without an expert. Sometimes the tortfeasors conduct rises to the level of gross negligence or recklessness. The classic is speeding to a late appointment. The tortfeasor knew he was doing wrong but intentionally ignored his legal duty and injured someone. 27 In this case the wire was located in an x-ray and not removed, deliberately. (R. 292) This is critical knowledge. The doctor even thought there might be a problem later with the wire. (R. 292) that would require the wire to be removed. Ignoring the potential risk and intentionally placing the patient in line with potential harm is more serious than just erring. Ignoring your the risks intentionally under circumstances when a person is likely to be hurt is gross negligence or recklessness. (See point X) These are all factors the jury can consider. In this case the wire was lost accidentally. Nobody has testified as to how the wire got into the chest wall but the doctor testified that it was found in the chest wall wrapped around a muscle. (R. 304, 395) The cause of this condition is unstated although the result was being stuck on a muscle (R. 304, 395). Being caught on a muscle would cause the wire to pull out of the lung as stated in the operating report. According to the operating report a 20 minute search followed, but it was futile, the wire was not found. (R. 355, 389, 347, 393) On trial new evidence appeared, an x-ray from the date of the operation. (R. 305) The wire was circled in black on the x-ray. (R. 305) Based thereon the wire was located or able to be located on the day of the accident. An x-ray done the day of the operation was produced on trial, that had not been seen before, and the wire was circled in black on it. On trial the Defendant stated: R. 305 A. This is a chest x-ray taken the day of surgery. ..................... And then someone has made a black circle and in the center of the black circle is a very faint white line that represents the wire that we could not find. It is well below about an inch apparently an inch or so below the level of the tip of the scapula with the arm down. The trial court found: 28 It is undisputed that the wire was left in the Plaintiffs body intentionally. (R. 29) ....................... The localization wire which Plaintiff contends is a foreign object was purposely left inside the Plaintiffs body. This is undisputed and admitted by the Defendant. (R. 31) The doctor knew the wire was in the patient, had the means to locate it and remove the wire giving various excuses for his behavior that are shown to be false below. This is akin to a speeder knowing the speed limit and deliberately exceeding it. As such the behavior of the doctor is not grounds for dismissal but grounds for increased fault. The issue of gross negligence and recklessness are dealt with below in point X. 29 POINT VIII THE CASES WHERE THE DEFENDANT INTENTIONALLY LEFT A FOREIGN OBJECT IN THE PATIENT AS PART OF THE AGREED TREATMENT HAVE NO RELEVANCE HERE AND NO EXPERT IS NEEDED TO EXPLAIN THIS Whether the item is a foreign object or a fixation device is based on the intention of the physician and the patient regarding the object. No expert is needed to explain this to a jury in this case (Rockefeller States v Lourdes Hospital 100 N.Y. 2d 208, 762 N.Y.S. 2d 1, 792 N.E. 2d 151) because in this case the plaintiff never agreed to have the camera guide wire left in her before the operation and The physician did not intend to leave it. (States v Lourdes Hospital 100 N.Y. 2d 208, 762 N.Y.S. 2d 1, 792 N.E. 2d 151: Mark Rockefeller et al. v. George P. Moront et al. 81 N.Y.2d 560, 601 N.Y.S. 2d 86, 618 N.E.2d 119) The fixation cases are irrelevant. In this case the physician admitted that the wire should not have been left there stating (R. 291, 292): Q. So it was not a normal part of the operation procedure, then, to leave this five centimeter wire in Marguerite James? A. My intent when I started the procedure was not to do that, but part of my job is to respond - - Q. YOU got --. MR. DUNN: Excuse me, your Honor. Again, I ask that the doctor be able to answer the question. THE COURT: Again, it's direct examination. Ask the question. I think he should have an opportunity to answer it. Q. Okay. 30 A. My intent at the beginning of the procedure was not to leave the wire, but part of my job is to respond to new information and continuing to reevaluate........... The line cases that involves physician and patient intent deals with items that were supposed to be left in the patient as part of the medically accepted procedure under the retainer agreement. In every one of these cases where something is accidentally left in patient it was part of the agreed and accepted medical procedure to intentionally place it in the patient and leave it. The record and the doctors medical reports and statements state that the wire was lost (R. 389, 393) and originally it was not his intention to leave the wire in the patient. (R. 291) He abandoned the search. (R. 292) Then after locating the wire on an x-ray decided to leave the wire.The wire was a camera guide wire that served no treatment function and intended was to be removed. (R. 292) These facts are completely distinct from the line of cases in which the physician leaves a fixation device in as part of the agreed medical treatment. (pacemakers, artificial hips, screws etc.) In these cases the foreign object was intentionally left in for treatment reasons not because the doctor intentionally decided to remove it. POINT IX P R I O R C A S E S O F T H E C O U RT O F A P P E A L S RECOGNIZE A CLEAR DISTINCTION BETWEEN ITEMS LEFT IN THE PATIENT AFTER THE OPERATION THAT WERE INTENDED TO BE REMOVED (FOREIGN OBJECT CASES) AND ITEMS THAT WERE INTENDED TO BE LEFT IN THE PATIENT BUT WERE NOT REMOVED. (FIXATION CASES) 31 Mark Rockefeller et al. v. George P. Moront et al. 81 N.Y.2d 560, 601 N.Y.S. 2d 86, 618 N.E.2d 119 states: In determining whether an object which remains in the patient constitutes a **122 ***89 “foreign object,” the courts should consider the nature of the materials implanted in a patient, as well as their intended function. Objects such as surgical clamps, scalpels, and sponges are introduced into the patient's body to serve a temporary medical function for the duration of the surgery, but are normally intended to be removed after the procedure's completion. Clearly, when such objects are left behind, no assessment of the medical professional's expert judgment or discretion in failing to remove them is necessary to establish negligence. By contrast, items which are placed in the patient with the intention that they will remain to serve some continuing treatment purpose constitute “fixation devices” (Lombardi v. DeLuca, 71 N.Y.2d 838, 527 N.Y.S.2d 757, 522 N.E.2d 1055, affg. 130 a category of medical material that the pre–CPLR 214–a case law excludes from the “foreign object” rule, and is now explicitly excluded by the terms of that statute. That “fixation devices” were considered exempt from coverage under the judicially created “foreign object” rule prior to enactment of CPLR 214–a is confirmed by this Court's holding in Lombardi (supra) that “[a] fixation device, in this case, suture material, intentionally placed in the body and not left there in the course of some later procedure in which it should have been removed, does not constitute a ‘foreign object’, even though the claim arose prior to July 1, 1975, the effective date of *565 CPLR 214–a” (130 A.D.2d 632, 515 N.Y.S.2d 811, affd on mem below 71 N.Y.2d 838, 527 N.Y.S.2d 757, 522 N.E.2d 1055, supra; accord, Goldsmith v. Howmedica, Inc., 67 N.Y.2d 120, 123, 500 N.Y.S.2d 640, 491 N.E.2d 1097; Mitchell v. Abitol, 130 A.D.2d 633, 515 N.Y.S.2d 810). We have previously rejected an argument that the negligent failure to remove a “fixation device” from a patient's body transforms that material into a “foreign object” (see, Rodriguez v. Manhattan Med. Group, supra, 77 N.Y.2d at 222, 566 N.Y.S.2d 193, 567 N.E.2d 235). In so doing, we reasoned that while the “foreign object” rule applies where the negligent act of forgetting a device in the patient's body forms the basis of the complaint, it should not be extended to cover the “very different circumstances” presented by the “failure to detect the continued presence of a previously inserted device,” a form of negligence analogous to misdiagnosis (id., at 223, 566 N.Y.S.2d 193, 567 N.E.2d 235). By parity of reasoning, a claim based on a medical professional's deliberate 32 implantation of a “fixation device” in the wrong place does not transform it into a foreign object. Such a claim is more readily characterized as one predicated on negligent medical treatment, which, like misdiagnosis, is a category of malpractice not covered by the “foreign object” rule (see, Merced v. New York City Health & Hosps. Corp., 44 N.Y.2d 398, 406 N.Y.S.2d 9, 377 N.E.2d 453). To find negligence where an object classifiable as a “fixation device” has been deliberately implanted in the patient's body with the intent that it remain, the trier of fact must assess “whether the defendant physician's diagnostic methods and conclusions were consistent with contemporary professional standards of care” (Rodriguez v. Manhattan Med. Group, 77 N.Y.2d 217, 223, 566 N.Y.S.2d 193, 567 N.E.2d 235, supra). Thus, establishing negligence in cases founded on faulty installation of a “fixation device” is clearly more difficult than where an object intended to be removed from the patient's body at the completion of the operation is obviously forgotten there. Additionally, the presence of a clear chain of causation in cases where an object is negligently left in the patient provides a major justification for the “foreign object” exception's discovery rule (Flanagan, 24 N.Y.2d, at 430–431, 301 N.Y.S. 2d 23, 248 N.E.2d 871, supra; see also, Mitchell v. Abitol, 130 A.D.2d 633, 634, 515 N.Y.S.2d 810). That justification is less persuasive in malpractice cases based on negligent installation of a “fixation device.” Accordingly, a claim of negligence based solely upon the ground that a “fixation device” was improperly installed or affixed during performance of an operation does not fall within the rationale of the **123 ***90 “foreign object” exception (see, Mitchell v. Abitol, supra, at 634, 515 N.Y.S.2d 810). In this case the physician admitted that the wire should not have been left there stating (R. 291, 292): Q. So it was not a normal part of the operation procedure, then, to leave this five centimeter wire in Marguerite James? A. My intent when I started the procedure was not to do that, but part of my job is to respond - - Q. YOU got --. MR. DUNN: Excuse me, your Honor. Again, I ask that the doctor be able to answer the question. 33 THE COURT: Again, it's direct examination. Ask the question. I think he should have an opportunity to answer it. Q. Okay. A. My intent at the beginning of the procedure was not to leave the wire, but part of my job is to respond to new information and continuing to reevaluate........... 34 POINT X THE PLAINTIFF PROVED A CASE OF GROSS NEGLIGENCE/WILLFUL MISCONDUCT ON HER PRIMA FACIE CASE The Trial court found: It is undisputed that the wire was left in the Plaintiffs body intentionally. (R. 29) ....................... The localization wire which Plaintiff contends is a foreign object was purposely left inside the Plaintiffs body. This is undisputed and admitted by the Defendant. (R. 31) The Defendant stated (R. 292): I made a judgment that she would be better served if we abandoned the wire in place and if necessary came back at a later time to take it out....... The PJI 2: 10 A states: Gross negligence is defined as the failure to use even slight care, or conduct that is so careless are to show complete disregard for the rights and safety of others. PJI 2:10A Willful misconduct occurs when a person intentionally acts or fails to act knowing that his or her actions will probably result in injury or damage. Willful misconduct also occurs when a person acts in so reckless a manner or fails to act under circumstances when an act is clearly required so as to indicate disregard of the consequences of his or her actions or inaction. PJI 2:10A By the end of the operation the doctor knew the wire was in the patient (R. 305), He had an x-ray locating the wire (R. 305), he knew the wire could be a problem (R. 292) and was in a position to remove it when he decided not to remove it (R. 29, 31, 292) At that time he knew the wire might be a problem for the patient and require removal. (R. 292) He was prepared to 35 remove as much as half the Plaintiffs lung so he certainly could have done one more incision 3 mm or used the same cut to retrieve the wire. (R. 347, 259, 203, 380) His reasons for leaving the wire in place were are false. He claims on one hand that a larger painful incision needed to be made (R. 389, 390) but on the other also testified that the wire might have been removed from the same incision. (R. 294) Also only a 3 mm incision was made to retrieve the wire. (R. 347) He stated that patients tolerate wires but the wire was wrapped around a muscle and very painful. (R. 292) Substitute a scalpel for the wire. Deliberately leaving a scalpel in a patient would be shockingly reckless. The wire also was dangerous. It had a become lodged in the chest wall, kinked around a muscle that in part had to be removed with it. (R. 304, 395) The wire caused pain and cost the Plaintiff numerous customers and the holidays. (supra) The pain ceased on removal of the wire. (R. 216) A jury could infer that the defendant was grossly negligent because of his knowledge that the wire was in the plaintiff and that he intentionally left it in the Plaintiff. POINT XI THE PLAINTIFF USED THE DEFENDANT PHYSICIAN AS AN EXPERT TO EXPLAIN CIRCUMSTANCES SURROUNDING THE OPERATION States v Lourdes Hospital 100 N.Y. 2d 208, 762 N.Y.S. 2d 1, 792 N.E. 2d 151 states: The purpose of expert opinion in this context is to educate the jury, enlarging its understanding of the fact issues it must decide. 36 However, the jury remains free to determine whether its newly- enlarged understanding supports the conclusion it is asked to accept While the Plaintiff could have rested after proving a wire had been left in the Plaintiff, she did not. She used the Defendant physician to explain a number of things such as, what a c- arm is, its availability at the local hospital, the operation procedure, the facts before during and after the operation, explain the operating reports and other background items etc. (R. 262-308) This approach is not prohibited, the doctor is a qualified expert and the jury is better informed by his testimony and a complete picture of what happened. 37 POINT XII THE LOWER COURT ERRED IN NOT SENDING QUESTIONS OF FACT TO THE JURY The following questions of fact, inconsistencies and contradictions exist in the doctors testimony as to his reasons for leaving the wire: 1. The physician stated that patients tolerate wires. (R. 292) Then he states: if not then there is a problem it could be removed (R. 292) and but on removal the wire had muscle tissue attached to it from being wrapped around a muscle. (R. 304, 395) This is not tolerating a wire. 2. He states that a larger incision was need to locate and remove the wire (R. 292, 390) but the removal operation only required on a 3 MM incision (R. 289) and the wire removal might have been done with the original cuts on the day of the operation. (R. 294) 3. The Defendant opted to leave the wire in place to to avoid causing further discomfort from its removal due to a larger incision (R. 356, 292, 390) But only a small incision was needed (3mm) (R. 347) to remove the wire and if done the day of the operation no incision may have been needed at all. (R. 294) These are material and important issues in the case. POINT XIII THERE ARE NO CREDIBILITY ISSUES IN FOREIGN OBJECT CASES FOR AN EXPERT OPINION Josephine Flanagan v. Mount Eden General Hospital et al. 24 N.Y.2d 427 states: It is clear now that a fundamental difference exists, for the purpose of the Statute of Limitations, between negligent medical treatment and medication cases and cases involving negligent malpractice of physicians or hospitals in which a foreign object is 38 left in a patient's body. In the latter no claim can be made that the patient's action may be feigned or frivolous. In addition, there is no possible **873 causal break between the negligence of the doctor or hospital and the patient's injury. The doctor admitted losing the wire. Two months later he removed it. There is no possibility of another source of the wire in the patient. 39 POINT XIV THE LOWER COURTS ERRED AS A MATTER OF LAW THE PLAINTIFF DID NOT WAIVE HER CLAIM The claim of waiver stems from Plaintiff having two theories: one a res ipsa loquitur theory, briefed herein, and another ordinary negligence theory based on the admissions of the physician but without an expert to establish standard of care (ie Physician admitted that a c-arm, was available, would retrieve the wire and he did not use it). (R. 319) The lower courts may have merged Plaintiffs two theories. The record states: R. 320 THE COURT: Well he did not retrieve it. There's no question about that. No one denies that. The question was: was he negligent in making that determination not to retrieve it. Isn't that the issue here? MR CARROLL: That's the ordinary negligence issue............ On Plaintiffs res ipsa loquitur theory the record states: R. 316 We clearly showed res ipsa loquitur. R. 317 I think we have shown beyond any doubt that this is a standard res ipsa case and that the jury is able to sit down and infer negligence without any trouble.that this thing shows up on a c-arm ............................ I think this is sufficient to go to the jury on both negligence in terms of ordinary negligence and sufficient to go to the jury in terms of res ipsa loquitur. R. 319 very briefly you honor It is indeed a res ipsa loquitur case because you do not ordinarily leave this wire in the patient at that time and after that the jury is free to infer what negligence and how it may have gotten there. Just like in the case of barrels falling out of a second story buildings and Court: I think they know how it got there. 40 R. 320 The res ipsa issue is whether or not the jury should be allowed, based on the fact that it's in that category of cases, that res ipsa applies here, in that a foreign object should not have been left in the plaintiff was left there, as to whether they are allowed to continue on to infer from that what the negligence might have been without - - on the proof. That's how it works in a res ipsa case. At the close of the proof the Plaintiff contended the circumstantial evidence was sufficient for the jury to infer negligence from res ipsa loquitur. (R. 316 et seq.) The Plaintiff does not have to specify any inference from the circumstantial evidence that is for the jury. The Plaintiff was trying to say that the only proof of a prima facie case was that the wire was lost and left in the patient. Once that was proven the jury could infer that I had met my burden of proof on the prima facie case under res ipsa loquitur. (Kambat v. St Francis Hospital 89 N.Y.2d 489 (1997) 678 N.E.2d 456, 655 N.Y.S.2d 844) The dissenters in the Appellate Division found: That the doctrine of res ipsa loquitur applies here in that a foreign object should not have been left in the plaintiff was left there As to Res Ipsa Loquitur Kambat v. St Francis Hospital 89 N.Y.2d 489 (1997) 678 N.E.2d 456, 655 N.Y.S.2d 844 states: To rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that “it is more likely than not” that the injury was caused by defendant's negligence (Restatement [Second]of Torts § 328 D, comment e). Stated *495 otherwise, all that is required is that the likelihood of other possible causes of the injury “be so reduced that the greater probability lies at defendant's door” (2 Harper and James, Torts § 19.7, at 1086).Res ipsa loquitur thus involves little more than application of the ordinary rules of circumstantial evidence to certain unusual events (see, Prosser and 41 Keeton, Torts§ 40, at 257 [5th ed] ), and it is appropriately charged when, “upon ‘a common sense appraisal of the probative value’ of the circumstantial evidence, * * *[the] inference of negligence is justified” (George Foltis, Inc. v. City of New York,287 N.Y. 108, 115, 38 N.E.2d 455). Kambat v. St Francis Hospital 89 N.Y.2d 489 (1997) 678 N.E.2d 456, 655 N.Y.S.2d 844 t also states Plaintiffs were not obligated to eliminate every alternative explanation for the event. 42 POINT XV THE COURT SHOULD AFFIRM THE DISSENT IN THE APPELLATE DIVISION The dissent in the Appellate Division read the facts and the law correctly. Their version should be affirmed. POINT XVI THE PLAINTIFF IS ENTITLED TO EVERY FACTUAL INFERENCE IN HER FAVOR Szczerbiak v. Pilat, 90 N.Y.2d 553 (1997) 686 N.E.2d 1346, 645 N.Y.S.2d 252 states the standard for directing a verdict in a CPLR 4401 motion: A trial court's grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that,upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the non-moving party (see, Blum v Fresh Grown Preserve Corp., 292 N.Y. 241). In considering the motion for judgment as a matter of law, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant (cf., Cohen v Hallmark Cards, 45 N.Y.2d 493, 499 [holding that standard of review in assessing motion for judgment notwithstanding the verdict is whether there is "simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial"). 43 THE PLAINTIFF PROVED RES IPSA LOQUITUR POINT XVIII THE ELEMENTS OF RES IPSA LOQUITUR The Court of Appeals in Kambat v. St. Francis Hosp., 89 N.Y. 2d 489; 678 N.E.2d 456, 655 N.Y.S.2d 844 (1997) held that Res ipsa loqitur requires the Plaintiff to prove: Once a plaintiff's proof establishes the following three conditions, a prima facie case of negligence exists and plaintiff is entitled to have res ipsa loquitur charged to the jury. First, the event must be of a kind that ordinarily does not occur in the absence of someone's negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff (Ebanks v New York City Tr. Auth., 70 N.Y.2d 621, 623). POINT XIX THE OPERATION WAS UNDER THE CONTROL OF THE DEFENDANT The doctor admitted that he was in full control of the operation (R. 298): Q. Okay. And you were in control of the operation at all times? A. Yes. 44 POINT XX THE PLAINTIFF WAS ANESTHETIZED WHILE THE WIRE WAS LOST AND COULD BE NOT CONTRIBUTORILY NEGLIGENT Dr. Worrmuth testified (R. 298): Q. Okay. And my client was, Marguerite James, she was unconscious and anesthetized during the operation? A. Yes. POINT XXI THE DEFENDANT OWES A DUTY TO THE PLAINTIFF AS A PHYSICIAN TO A PATIENT The Doctor testified (R. 297-298): Q. Doctor, changing gears for a second, were you hired by Marguerite Jones to perform this operation? A. Marguerite James? Q. James. I'm sorry. James. A. We met and agreed that I would perform the surgery on her, yes. Q. Okay. And you were compensated for that? A. Yes. Q. Okay. And you were in control of the operation at all times? A. Yes. Q. Okay. And my client was, Marguerite James, she was unconscious and anesthetized during the operation? A. Yes. The Plaintiff and physician had a doctor patient relationship. 45 This was corroborated by Marguerite James (R. 208): Q. Now, who did you retain to do this operation? A. Dr. Wormuth. Q. And who did you understand was going to have control of the operation? A. Dr. Wormuth. Q. And did you sign a contract with Dr. Wormuth? A. A contract? I wouldn't call it a contract. I'm sure I signed some form of permission. Q. And did you understand that he was to be in control of all aspects of the operation? A. Yes. Q. And do you have any skill or expertise in this operation or medical matters? A. No. Q. Did you rely totally on Dr. Wormuth? A. Yes. 46 POINT XXII CONCLUSION The case should be remanded to trial court and be allowed to proceed to a jury verdict on all the facts. The Plaintiff proved Res ipsa loquitur on the admissions of the Defendant. (supra) Assuming the Plaintiff did waive his case in the manner stated by the Lower courts the case still proceeds to the jury for the reasons stated above because. intent, the judgment charge, etc. Are not defenses to res ipsa loquitur. None of the Defendants claims stop the jury from making an inference of negligence in a foreign object case. Because the prima facie case is proved by the wire in the Plaintiff after the ending of the operation. It may have been lost, left in (and not retrieved), abandoned, intentionally left in for no good reason or whatever. It does not matter it all just goes to the jury. The judgment charge is completely incompatible with Res Ipsa Loquitur and has been so held. Nor does it matter that the foreign object is left in the Plaintiff intentionally or otherwise because, all the facts go to the jury for their evaluation. Assuming the Plaintiff never waived any part of her case during the motion to dismiss the same results are achieved for the same reasons as stated above and the case goes to the jury. Any alleged waiver is irrelevant. The case should be remanded for a retrial so that the Plaintiff can have a jury review the facts of the case. Woodruff Lee Carroll The Galleries 441 South Salina St. 47 Syracuse,N.Y. 13202 1-315-474-5356 1-315-474-5451 Fax 48 Page 1 of 2 Byrne v. Boadle 159 E.R. 299 Exchequer Court November 25, 1863 England. 2 Hurlstone and Coltman 722. Opinion by POLLOCK, C.B. BRAMWELL, B.; CHANNELL, B.; and PIGOTT, B. concurred, with CHANNELL writing separately. Reporter: The plaintiff was walking in a public street past the defendant’s shop when a barrel of flour fell upon him from a window above the shop, and seriously injured him. Held sufficient primâ facie evidence of negligence for the jury, to cast on the defendant the onus of proving that the accident was not caused by his negligence.~ Declaration: For that the defendant, by his servants, so negligently and unskilfully managed and lowered certain barrels of flour by means of a certain jigger-hoist and machinery attached to the shop of the defendant, situated in a certain highway, along which the plaintiff was then passing, that by and through the negligence of the defendant, by his said servants, one of the said barrels of flour fell upon and struck against the plaintiff, whereby the plaintiff was thrown down, wounded, lamed, and permanently injured, and was prevented from attending to his business for a long time, to wit, thence hitherto, and incurred great expense for medical attendance, and suffered great pain and anguish, and was otherwise damnified.~ At the trial before the learned Assessor of the Court of Passage at Liverpool, the evidence adduced on the part of the plaintiff was as follows: A witness named Critchley said: “On the 18th July, I was in Scotland Road, on the right side going north, defendant’s shop is on that side. When I was opposite to his shop, a barrel of flour fell from a window above in defendant’s house and shop, and knocked the plaintiff down. He was carried into an adjoining shop. A horse and cart came opposite the defendant’s door. Barrels of flour were in the cart. I do not think the barrel was being lowered by a rope. I cannot say: I did not see the barrel until it struck the plaintiff. It was not swinging when it struck the plaintiff. It struck him on the shoulder and knocked him towards the shop. No one called out until after the accident.” The plaintiff said: “On approaching Scotland Place and defendant’s shop, I lost all recollection. I felt no blow. I saw nothing to warn me of danger. I was taken home in a cab. I was helpless for a fortnight.” (He then described his sufferings.) “I saw the path clear. I did not see any cart opposite defendant’s shop.” Another witness said: “I saw a barrel falling. I don’t know how, but from defendant’s.” The only other witness was a surgeon, who described the injury which the plaintiff had received. It was admitted that the defendant was a dealer in flour. It was submitted, on the part of the defendant, that there was no evidence of negligence for the jury. The learned Assessor was of that opinion, and nonsuited the plaintiff, reserving leave to him to move the Court of Exchequer to enter the verdict for him with 50l. damages, the amount assessed by the jury.~ Page 2 of 2 POLLOCK, Chief Baron. There are certain cases of which it may be said res ipsa loquitur, and this seems one of them. ~I think it would be wrong to lay down as a rule that in no case can presumption of negligence arise from the fact of an accident. Suppose in this case the barrel had rolled out of the warehouse and fallen on the plaintiff, how could he possibly ascertain from what cause it occurred? It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford primâ facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous. So in the building or repairing a house, or putting pots on the chimneys, if a person passing along the road is injured by something falling upon him, I think the accident alone would be primâ facie evidence of negligence. Or if an article calculated to cause damage is put in a wrong place and does mischief, I think that those whose duty it was to put it in the right place are primâ facie responsible, and if there is any state of facts to rebut the presumption of negligence, they must prove them. The present case upon the evidence comes to this, a man is passing in front of the premises of a dealer in flour, and there falls down upon him a barrel of flour. I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had the controul of it; and in my opinion the fact of its falling is primâ facie evidence of negligence, and the plaintiff who was injured by it is not bound to shew that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them. Legend: ~ matter omitted Some punctuation and formatting changed without notation. This edited version, copyright © 2009 Eric E. Johnson. KM Konomark – Most rights sharable. Please e-mail eej@eejlaw.com for permission to use for free. Website: eej@eejlaw.com.