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James v. Wormuth

Citation. 21 N.Y.3d 540, 997 N.E.2d 133, 974 N.Y.S.2d 308
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Brief Fact Summary.

Defendant, a surgeon, left a guide wire from an operation inside plaintiff’s body. Plaintiff returned to defendant weeks later complaining of postoperative pain she attributed to the wire. Plaintiff sued for medical malpractice.

Synopsis of Rule of Law.

In a medical malpractice suit, a doctor cannot be held liable under res ipsa loquitor for intentionally leaving a foreign object inside a patient if the doctor uses his or her professional judgment to assess what is best for the patient under the circumstances.


Dr. Wormuth performed a lung biopsy on James. A guide wire was used in the operation to locate the area of James’ lung to be biopsied. The guide wire became dislodged during the surgery. Dr. Wormuth conducted a 20-minute manual search for the wire but was unable to find it. He decided that it was best to leave the wire inside James. After the surgery, Dr. Wormuth informed James that he left the wire inside her and why he had done so. Weeks later, James returned complaining of postoperative pain that she attributed to the presence of the wire. She sued Dr. Wormuth for medical malpractice. During trial, James asserted that the doctrine of res ipsa loquitor applied since the wire was a foreign object that only could have been left inside her as a result of Dr. Wormuth’s negligence. Dr. Wormuth testified that it was his professional judgment that it was safer to leave the guide wire inside James. He stated that it would have been too risky to extend the period under which James was anesthetized and to make a larger incision to remove the wire. The trial court directed a verdict for defendant, which was affirmed by the appellate division. James appealed to the Court of Appeals of New York.


Can a physician be held liable for malpractice under the doctrine of res ipsa loquitor when he or she uses his or her professional judgment to intentionally leave a foreign object inside a patient’s body?


No, the defendant cannot be held liable for using his or her professional judgment to intentionally leave a foreign wire inside a patient. Res ipsa loquitor only applies when a foreign object is unintentionally left in a patient following an operation. The order of the appellate division is affirmed.


To prove medical malpractice, James must demonstrate that Dr. Wormuth (1) deviated from acceptable medical practice, and (2) the deviation was a proximate cause of her injury. James bases her theory of malpractice on Dr. Wormuth’s intentional choice to leave the wire inside her under the doctrine of res ipsa loquitor. Res ipsa loquitor applies where: (1) the event that occurred does not ordinarily occur in the absence of negligence, (2) the event was caused by an instrument under the exclusive control of the defendant, and (3) the event was not due to any contribution on the part of the plaintiff. Here, James failed to prove that Dr. Wormuth had exclusive control over the guide wire. While she alleged Dr. Wormuth had control over the operation, other medical personnel were involved in inserting the guide wire during the surgery. James thus failed to prove that other possible causes of her injury had been eliminated. Additionally, Dr. Wormuth intentionally left the guide wire inside James based on his medical assessment of what was best for her. In the context of a malpractice case, res ipsa loquitor applies when the foreign object is unintentionally left in the patient. James did not satisfy her burden of proof to prove malpractice under the doctrine of res ipsa loquitor.

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