JAMES V. WORMUTH
997 N.E.2d 133 (2013)
NATURE OF THE CASE: James (P) appealed an affirmation of a directed verdict for Wormuth
(D) in P's medical malpractice action.
FACTS: A guide wire inserted into P to assist with a biopsy of an area in her lung
dislodged. D proceeded with the biopsy, but was unable to locate the dislodged wire. D
determined that it was better to leave the wire and end the surgical procedure, rather than
to extend the amount of time she was in surgery for him to continue searching for the wire.
D informed plaintiff after the surgery that he could not find the wire, and that he had
determined that it was better to leave it rather than continue the search procedure. P
suffered and two months after the first procedure, D performed a second operation and
successfully removed the wire with the use of a special X-ray machine known as a C-arm. P
sued D for medical malpractice. P did not present any expert medical evidence. D moved to
dismiss for failure to establish a prima facie case of medical malpractice in that P failed
to show a deviation from accepted standards of medical practice, and also that such
deviation was the proximate cause of P's injury. D pointed specifically to the failure to
present any expert proof on the standard of practice. D also argued that res ipsa loquitur
was inapplicable because there was no evidence of any error by D that caused the wire to
become dislodged. P argued that expert testimony was unnecessary because D admitted that he
intentionally left the wire inside P. Therefore, a jury could infer negligence given that
there was no medical reason to leave the wire lodged in P, and D could have obtained a C-arm
to locate and remove it. P also asserted that res ipsa loquitur applied because the wire was
a foreign object that could only have been left in P as a result of D's negligence. D got
the directed verdict. The Appellate Division affirmed. It rejected the contention that P had
submitted sufficient proof under the doctrine of res ipsa loquitur to submit the case to the
jury. Because P relied upon D's allegedly improper exercise of medical judgment, P could not
rely upon the theory of res ipsa loquitur. P appealed.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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