Kambat v. St. Francis Hosp.
Court of Appeals of New York
678 N.E.2d 456 (1997)
Florence Fenzel underwent a hysterectomy performed by Dr. Ralph Sperrazza (defendant) at St. Francis Hospital (defendant), during which surgical staff placed several laparotomy pads inside her peritoneal cavity next to her bowel; ten pads had been counted out and made available before surgery. Fenzel later developed stomach pain, and an x-ray in November 1986 revealed a foreign object in her abdomen; doctors removed an 18-by-18-inch laparotomy pad on December 5, but Fenzel died on December 29 from infection. Her husband and children (plaintiffs) sued for malpractice, presenting evidence that the recovered pad matched those used in her surgery, that such pads are found only in operating rooms, and expert testimony on how the pad's location caused her death. The defendants countered that all pads were properly accounted for after surgery and that their expert believed Fenzel had swallowed a pad, though plaintiffs' experts said it would have been physically impossible for a swallowed pad to end up in her bowel. The trial court refused to instruct the jury on res ipsa loquitur, the jury found for the defendants, and a divided Appellate Division panel affirmed; plaintiffs appealed further.
Whether a plaintiff is entitled to a res ipsa loquitur instruction in a medical malpractice case where the circumstantial evidence would let a jury draw a reasonable inference of negligence using common sense and experience.