Surgery of any kind is fraught with perils for the patient. There is nervousness over being in a hospital and dealing with anesthesia. What kind of scar they might have afterwards. How long it will take to recover after the surgery. But having a sponge or a medical instrument left inside your body is not what a patient wants to hear from their surgeon. So the patient sues for medical malpractice, but not every medical instrument left inside a patient’s body will be considered medical malpractice.
The Guide Wire
In 2004, a woman had a biopsy of her lung. The surgeon inserted a guide wire for to make sure he was focused on the correct area of the lung. During the biopsy, the guide wire dislodged. The surgeon spent 20 minutes searching for the guide wire, but was unsuccessful. He left the guide wire inside the patient and ended the surgical procedure because he thought it was in the patient’s best interest. The surgeon informed the woman about the guide wire and explained why he had left it in.
The woman returned to the surgeon complaining about pain that interfered with her work. About two months after the original surgery, the surgeon performed a second operation and used a special x-ray machine to locate and remove the guide wire.
The Lawsuit
The woman sued the surgeon for medical malpractice arguing that the surgeon’s actions in leaving the guide wire inside her body was negligence. The surgeon moved to dismiss the case because the evidence the woman submitted at trial was not sufficient to prove medical malpractice. The surgeon “argued that the plaintiff failed to show a deviation from accepted standards of medical practice, and also that such deviation was the” actual cause of the woman’s injury.
The woman objected to the surgeon’s motion saying that because the surgeon left the wire inside her it would be readily apparent to any juror that there was negligence because “there was no medical reason to leave the wire” inside the woman. Further, the surgeon could have requested the special x-ray machine during the first operation to locate and remove the guide wire and he did not, which would lead a reasonable person to conclude he was negligent.
The trial court dismissed the case in favor of the surgeon. The woman appealed, but lost at the Appellate Division level. She then appealed to the Court of Appeals.
The Court of Appeals reviewed the woman’s arguments and determined that in order to prove her case she needed expert testimony. Because there was no expert testimony introduced at trial, the Court of Appeals upheld the dismissal.
It is necessary for attorneys to cover all bases in any lawsuit they file. By not bringing in an expert witness to testify to the necessary standard of care, there was a fatal flaw in the woman’s case. Our attorneys cover all bases and assure that our clients’ rights are protected. If you have a complaint against a doctor for the medical care you received, contact our attorneys to fight for your rights.
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