## Facts

- Florence Fenzel underwent an abdominal hysterectomy at St. Francis Hospital performed by Dr. Ralph C. Sperrazza in August 1986.
- During the operation, laparotomy pads were used in the surgical field while Fenzel was unconscious.
- Months later, Fenzel developed abdominal pain; imaging at another hospital revealed a foreign object.
- On December 5, 1986, surgeons removed an 18-by-18-inch laparotomy pad from fully or partially inside Fenzel’s bowel.
- Fenzel’s condition deteriorated, and she died on December 29, 1986, from infection-related illnesses.
- Plaintiffs contended the pad was left in the abdomen during the hysterectomy and later migrated into the bowel; defendants asserted surgical counts were correct and posited she swallowed the pad and it migrated.

## Issues

1. Whether plaintiffs were entitled to a jury instruction on res ipsa loquitur in a medical malpractice action involving a laparotomy pad discovered in the patient after surgery.
2. Whether defendants’ evidence of proper surgical counts and an alternative causation theory precluded submitting res ipsa loquitur to the jury.

## Decision

- The Court of Appeals reversed the judgment for defendants and ordered a new trial.
- The trial court erred by refusing to instruct the jury on res ipsa loquitur.
- The circumstances permitted (but did not compel) an inference of negligence; defendants’ competing explanations were for the jury to weigh.

## Legal Principles

- Res ipsa loquitur applies when: (1) the event ordinarily does not occur without negligence; (2) the instrumentality is within defendants’ exclusive control in a practical sense; and (3) the injury is not due to plaintiff’s voluntary act or contribution.
- In retained-foreign-object cases, a jury may infer negligence because such an occurrence generally does not happen absent negligence and is within common experience.
- “Exclusive control” is assessed pragmatically in operating-room settings where the patient is unconscious and the surgeon and hospital staff manage the surgical field and implements.
- Res ipsa loquitur in New York is a permissive inference, not a presumption; the jury may accept defendants’ due-care evidence and alternative causation theories, but those defenses do not bar the instruction.

## Conclusion

Because an 18-by-18-inch laparotomy pad was discovered after surgery under circumstances consistent with a retained surgical object, plaintiffs were entitled to have the jury consider res ipsa loquitur; denying that instruction was reversible error requiring a new trial.


Kambat v. St. Francis Hosp., 89 N.Y.2d 489 (N.Y. 1997)