Court of Appeals of New York
678 N.E.2d 456 (1997)
In August 1986, Florence Fenzel underwent a hysterectomy performed by Dr. Ralph Sperrazza (defendant) at St. Francis Hospital (St. Francis) (defendant). Prior to the operation, during which Fenzel was unconscious, 10 laparotomy pads were marked and made available for the surgeon’s use. Sperrazza placed several of the pads in Fenzel’s peritoneal cavity, next to her bowel, during the procedure. Some time after the surgery, Fenzel began to experience stomach pain. On November 30, 1986, an x-ray showed a foreign object in her abdomen. On December 5, the object was removed: it was a laparotomy pad measuring 18-by-18 inches. Fenzel died on December 29 from infection. Her husband and children (plaintiffs) sued Sperrazza and St. Francis for medical malpractice in a New York state court. At trial, plaintiffs presented evidence of the similarity in size and type between the pad found in Fenzel and those used in her surgery. They also provided evidence that such pads were placed only in operating rooms. Their experts testified as to the pad’s location in Fenzel’s bowel and how it brought about her death. In opposition, defendants testified that all pads were properly accounted for after the surgery. They further testified that pads were frequently left in places accessible to patients, and their experts opined that Fenzel had swallowed a pad. Plaintiffs’ experts, in response, stated that it would be physically impossible for Fenzel to have swallowed a pad and for it to have ended up in her bowel if she had swallowed it. The trial court denied plaintiffs’ request that the jury be given an instruction on res ipsa loquitur. The jury found in favor of defendants. A divided panel of the Appellate Division affirmed. Plaintiffs appealed.
Rule of Law
Holding and Reasoning (Kaye, C.J.)
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