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Superior Court finds Expert Witness Unnecessary in Res Ipsa Loquitur Cases

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The Pennsylvania Superior Court recently held that leaving a sponge in a patient speaks for itself and does not require an expert witness to prove negligence or causation in a medical malpractice trial. 

In Fessenden v. Robert Packer Hospital, the patient underwent a surgical procedure on his esophagus and stomach, at which time a laparotomy sponge was left in his abdomen.  The patient began experiencing intermittent lower abdominal pain over the next four years.  Four years after the surgery, the patient returned to the emergency room with severe pain.  At that time, a CT scan revealed the presence of a sponge.  The patient underwent surgery to remove the sponge, an adjacent abdominal abscess, his gallbladder, and a portion of the small intestine.  He then underwent another procedure which required hospitalization for a few weeks.

Leading up to trial, Plaintiffs argued that expert testimony was not necessary and they would rely on res ipsa loquitur to establish the sponge was the cause of the patient’s injuries and the defendants were negligent in failing to remove the sponge.  The defendants moved for summary judgment, arguing that res ipsa loquitur was inappropriate because the plaintiffs could not prove that his injuries were caused by the sponge when four years had gone by and he had other health problems.  The trial court granted summary judgment in favor of the defendants, finding the plaintiffs did not provide any evidence that their damages were caused by the sponge. 

Plaintiffs appealed the ruling and the Superior Court found in their favor.  Judge David Wecht ruled that the doctrine of res ipsa loquitur applied in a narrow category of medical malpractice cases that do not require expert testimony to prove an accident would not happen absent negligence.  In his opinion, Judge Wecht noted the doctrine of res ipsa loquitur applies where (1) the event is of a kind that ordinarily does not occur in the absence of negligence; (2) the other responsible causes, including the conduct of the plaintiff, are sufficiently eliminated by evidence; and (3) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.

Judge Wecht stated that as a matter of general knowledge, “the evidence is sufficient to conclude that, in the absence of negligence, laparotomy sponges are not left behind after abdominal surgery.”  The Superior Court held there was no reason why the four-year gap and the patient’s other health issues would preclude the plaintiffs from relying on res ipsa loquitur to establish a prima facie case of negligence.

The court also rejected the defendants’ argument that this case was not clearly the type of case that courts envisioned to be submitted to a jury without expert testimony.  Judge Wecht stated that, “although factually analogous cases appear to be uncommon in Pennsylvania, our courts long have cited the proverbial ‘sponge left behind’ case as a prototypical application of res ipsa loquitur.”


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