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Packing Left In Surgical Wound: Court Turns Down Estate’s Request For Res Ipsa Loquitur.
Legal Eagle Eye Newsletter for the Nursing Profession
The patient was treated in three different places at three different times, in the hospital, in the rehab facility and in her home by the visiting nurses agency.
None of the three care-giving settings had exclusive control of the factors which led to the injury for which the patient’s probate estate sued, an old piece of packing negligently left in her surgical wound. NEW YORK SUPREME COURT APPELLATE DIVISION June 4, 2014
An old piece of gauze used to pack the patient’s surgical wound was discovered a year after her hemicolectomy surgery.
The patient’s estate sued the surgeon, the hospital, the rehab facility where she went after surgery and the visiting nurse agency whose employees cared for her in her home after she left the rehab facility.
Each of the defendants’ attorneys submitted expert witness affidavits to the court stating that the patient’s treatment by their client met the applicable standard of care in all respects.
The patient’s estate’s attorneys were unable to provide anything from a medical or nursing expert directly linking any particular defendant to the packing being left in the wound or linking that to the patient’s death.
The New York Supreme Court, Appellate Division, ruled that the patient’s estate was not entitled to rely on the legal rule of res ipsa loquitur under the circumstances of the case and, therefore, the case had to be dismissed for lack of evidence.
Res ipsa loquitur is Latin for “The thing speaks for itself.” It is a legal rule that sometimes can be used by the injured victim in a healthcare or other civil negligence case were the defendant or defendants had exclusive control of the factors which led to the victim’s injury, and the manner of injury was something that ordinarily does not occur in the absence of negligence.
Here, however, the defendants at no time ever shared control over her care and so the rule did not apply. Bucsko v. Gordon , __ N.Y.S.2d __, 2014 WL 2504687 (N.Y. App., June 4, 2014).
More references from nursinglaw.com
http://www.nursinglaw.com/laparotomy-pad-retained-surgery.htm
http://www.nursinglaw.com/surgical-sponge.htm
http://www.nursinglaw.com/perioperative-nursing-advocate-patient.pdf
http://www.nursinglaw.com/ornurse5.htm
http://www.nursinglaw.com/operating-room-circulating-nurse.pdf