Res Judicata Issue in Med Mal Case Divides Fourth Department Panel

In James v. Wormuth, the defendant doctor lost a four-centimeter wire inside the plaintiff's thorax during surgery to remove a node from the plaintiff’s lung. After an unsuccessful twenty minute search for the wire, the defendant decided to leave it in after considering the amount of time the plaintiff had been under anesthesia, the potential harm of leaving the wire in and the potential harm from further incisions. Although the majority noted that the res ipsa doctrine is generally applicable where a foreign body is unintentionally left inside a patient, here, the plaintiff failed to establish that the wire fragment was unintentionally left inside her. Instead, according to the Court, the evidence established that the defendant intentionally left the wire inside based on a judgment that there was a lower risk of harm to the plaintiff by taking that course of action than by making a larger incision to remove the wire. The majority also held that the plaintiff had disavowed recovery on the theory that the loss of the wire itself was negligent.

The dissent disagreed, arguing that res ipsa should apply because the loss of the wire was unintentional and the result of the operation was unplanned and inadvertent. According to the dissent, "[e]ven though a medical decision was made to abandon the lost implement and close the incision before it was recovered, the loss of that foreign body at the surgical site speaks for itself and satisfies the element of res ipsa loquitur at issue in this appeal." The dissent also disagreed with the majority's conclusion that the plaintiff disavowed the theory that the loss of the wire itself was negligent. The dissent argued that in opposition to the defendant's motion the plaintiff sufficiently raised the theory by arguing that res ipsa should apply because a foreign body should not have been left inside her.