Kambat v. St. Francis Hospital

678 N.E.2d 456 (N.Y. 1997)

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Nature of the Case

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Facts

D performed an abdominal hysterectomy on Florence Fenzel, at St. Francis Hospital (D). Ten laparotomy pads were marked and available for the operation. D placed several of these pads in decedent's peritoneal cavity. After the operation, she began to complain of stomach pain, and on November 30, 1986 X-rays taken at another hospital revealed a foreign object in her abdomen. On December 5, a laparotomy pad measuring 18-by-18 inches--similar to those used during the hysterectomy--was discovered fully or partially inside decedent's bowel, and it was removed by Dr. Robert Barone. Decedent's condition continued to deteriorate, and she died on December 29, 1986, from infection-related illnesses. Ps sued Ds for medical malpractice. Ds introduced evidence that standard procedures were followed during the operation, and that the number of sponges, medical instruments and laparotomy pads used and removed were counted several times, carefully and accurately. Ds opined that the pad had not been left inside decedent but, rather, that she had swallowed it. Decedent suffered from chronic depression; overuse of sleeping pills could suppress the gag reflex and permit her to swallow the pad; and the human gastrointestinal tract would allow the pad to pass to the small bowel. P's expert witnesses, by contrast, agreed that it would be anatomically impossible to swallow the laparotomy pad or for a swallowed pad to reach the bowel. The trial court denied P's request to charge res ipsa loquitur, and the jury held for Ds. The Appellate Division affirmed Supreme Court's dismissal of the complaint and this appeal resulted.