Medical Malpractice, and the case of the Foreign Object vs. a Course of Treatment

by John C Cherundolo on Apr. 15, 2014

Accident & Injury Personal Injury Accident & Injury  Medical Malpractice 

Summary: New York State Cases on Retention of Foriegn object in 2013 and the definition of a Course of Treatment


         Theory That Guide Wire Was “Foreign Object” Unpersuasive in Res Ipsa Loquitur Claim Where Plaintiff Argued Doctor Was Negligent for Intending to Leave Wire in Plaintiff After Surgery.


In October, 2004, a guide wire inserted into the plaintiff to assist with a biopsy of an area in plaintiff’s lung dislodged. Defendant Wormuth proceeded with the biopsy, but was unable to locate the dislodged wire. After an unsuccessful 20 minute search, the defendant determined that it was better for the plaintiff to leave the wire and end the surgery, rather than to extend the amount of time plaintiff was in surgery for him to continue looking for the wire. Defendant informed plaintiff after the surgery that he could not find the wire and that he determined that it was better to leave it rather than to continue the search procedure.

Approximately two months after the first procedure, defendant performed a second procedure during which he successfully located and removed the wire.

Plaintiff commenced this medical malpractice action. At the close of plaintiff’s case, defendants moved to dismiss for failure to establish a prima facie case of medical malpractice. Defendants argued that plaintiff failed to show a deviation from accepted standards of medical practice, and also that such deviation was a proximate cause of the plaintiff’s injury. Defendants pointed specifically to plaintiff’s failure to present any expert proof on the standard of practice. Anticipating plaintiff’s response, defendants argued that res ipsa loquitor was inapplicable because there was no evidence of any error by defendant Wormuth that caused the wire to become dislodged.

Plaintiff objected to the motion and argued that expert testimony was unnecessary because Wormuth admitted that he intentionally left the wire inside the plaintiff. Therefore, a jury could infer negligence given that there was no medical reason to leave the wire lodged in plaintiff. Plaintiff asserted that the doctrine of res ipsa loquitur necessarily applied because the wire because the wire was a foreign object that could only have been left in the plaintiff as a result of the doctor’s negligence.

It is clear from the record that the doctor explained his decision to leave the wire in terms of his medical assessment of what was best for the patient under the circumstances. Defendant’s testimony that it was his professional judgment to leave the wire could not be assessed by the jury based on the common knowledge of lay persons. Therefore, evidence clearly was needed, in the form of expert opinion to assist a jury’s understanding of whether this occurrence would have taken place in the absence of negligence. Plaintiff wholly failed to present any such evidence of the standards of practice and, therefore, her complaint was properly dismissed.

To the extent that counsel argued that res ipsa loquitor applies because the wire could only have dislodged due to the doctor’s negligence, plaintiff failed to establish the elements of res ipsa, specifically that Wormuth had exclusive control over the object. Plaintiff’s counsel appears to have believed that the control element was satisfied because the doctor had control over the operation. Whether the doctor had control over the operation does not address the question of whether he was in control of the instrumentality, because several other individuals participated to an extent in the procedure. Given that plaintiff failed to produce any evidence that the doctor had exclusive control over the wire, or sufficient proof that eliminates within reason all explanations for the injury other than defendant’s negligence, the control element clearly has not been satisfied.

Plaintiff’s argument that the wire should be treated as a foreign object in support of her res ipsa claim is unpersuasive because her theory of the case was that the doctor negligently chose to leave the wire. Thus, this case is distinguishable from those involving objects left unintentionally, where, as plaintiff argues, no decision to leave the object has been made which must be measured against a standard of care.


         Failure to Establish A Court of Treatment Is Not a Course of Treatment; Instead, Court of Treatment Requires Ongoing Affirmative Conduct by a Physician.


Plaintiff’s infant was a patient of defendant Walders from the time of her birth until the time she was 11 years old. At the time that plaintiff’s infant turned three years old, plaintiff grew concerned about the development of the infant’s right foot. In particular, infant’s feet were not the same size and her right arch appeared to be higher than the left. This worsened as the infant grew older. Sometime after plaintiff’s last checkup with Walders in September 1996, plaintiff changed to pedestrian Jolie. During Jolie’s first examination of infant, she observed infant’s right foot and referred her to a podiatrist, who then referred her to a neurologist, who ultimately diagnosed infant with tethered spine, a condition that caused, among other things, the deformity of infant’s foot, and required infant to undergo multiple surgeries.

On December 23, 2005, plaintiff initiated the instant action in medical malpractice, and alleged, among other things, that Walders’ failure to refer infant to a specialist deviated from the accepted standard of care and that infant was injured as a result of the delayed diagnosis and treatment of her condition. Following discovery, defendants moved for summary judgment dismissing the complaint on the ground that Walders did not deviate from the accepted standard of care and, alternatively, that the claims were time-barred. The motion court partially granted defendants’ motion by dismissing as time-barred all claims that accrued more than 10 years prior to the commencement of the action. As to the remaining claims, the court found that triable issues of fact existed regarding whether Walders departed from the accepted standard of care. Both parties appealed.

With regard to the issue of whether the plaintiff’s claims are time-barred, the Court must first determine whether the continuous treatment applies. Significantly, a failure to establish a course of treatment is not a course of treatment. The Court is unpersuaded by the plaintiff’s claims that the concerns regarding the infant’s foot were raised to Walders by the plaintiff during her annual visits and were evidence of treatment of her foot condition by Walders. However, a course of treatment speaks to the affirmative and ongoing conduct by the physician which is recognized as such by both patient and physician. Gomez v. Katz, 61 AD3d 108 (2009). Notably, a routine examination of a seemingly healthy patient, or visits concerning matters unrelated to the condition at issue giving rise to the claim, are insufficient to invoke the benefit of the continuous treatment doctrine. Plummer v. New York City Health & Hospital Corp., 98 NY2d 268.

Here, the record is devoid of any evidence that would support a finding that Walders provided affirmative treatment to plaintiff’s infant for a condition related to her foot and Walders’ failure to treat the condition in response to the concerns of the plaintiff does not, by itself, establish an ongoing course of treatment. The record does not reflect that Walders ever indicated that she would monitor the condition related to the infant’s foot, nor has plaintiff asserted that Walders assured her that she would do so. Moreover, when plaintiff was nine years old, her parents took her to see an orthopedic surgeon who noted that he would follow the infant with interest, suggesting that he would monitor the condition.

With regard to the defendant’s appeal, the appellate court agrees with the motion court as to the claims that remain. Questions of fact exist regarding whether Walders deviated from the accepted standard of care during the time period of December 23, 1995 until she last treated the infant in 1996. Plaintiff alleges that she departed from the standard of care when she failed to refer the infant to a specialist.

While defendants claim that plaintiff’s expert failed to specify any deviation from the last annual checkup – the only checkup that would fall with the timely claim – the Court cannot agree. In fact, plaintiff’s expert specifically refers to a notation made by Walders correlating to the September 1996 examination in which she indicated that infant’s extremities were within normal limits. Plaintiff’s expert opines that, because her abnormality was significant and obvious, so much so that it had been noticed by other care providers, Walders should have referred the infant to a specialist at the time.

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