$115,000 Pain and Suffering Verdict Affirmed in Surgical Malpractice Case

The New York Supreme Court, Appellate Division, Fourth Department affirmed a jury verdict that awarded the plaintiff $115,000 in past pain and suffering when a surgical team left a surgical instrument inside of the plaintiff.

The plaintiff was undergoing surgery at the defendant hospital at the time of the incident. A team of nurses and a surgeon were present during the operation. Someone left a surgical instrument in the defendant’s body, and the plaintiff filed a lawsuit for medical malpractice against the hospital and the surgeon. Only the claims against the hospital went to trial. After a jury verdict for the plaintiff, the jury awarded the plaintiff $115,000 for past pain and suffering.

The hospital appealed, arguing that the pain and suffering award was excessive. The Fourth Department disagreed. It held that it was reasonable compensation given the circumstances.

The hospital also argued that the court erred in prohibiting the nurses from testifying at trial regarding any opinions they had about any possible negligence they witnessed, either on behalf of the surgeon, the procedures employed in the surgery room or how the instrument came to be left in the body.

The Fourth Department held that this argument was flawed because nurses cannot testify about the standard of care regarding doctors because they are not doctors. They do not have the requisite training and expertise to know about a doctor’s standard of care.

In addition, two of the operating room nurses did testify at the trial. However, they testified that they could not recall the surgery at all. Thus any testimony on whether negligence had occurred that day would have been based on pure speculation and not probative in the slightest.

The defendant also argued that the surgeon’s name should have been listed on the verdict sheet so that the jury could have apportioned some damages specifically to the surgeon. Thus the defendant argued that the surgeon was liable for the instrument incident and that the damages should reflect that. However, the case was discontinued against the surgeon, so the plaintiff was not required to prove that the surgeon specifically breached a duty and that the breach caused the injury. As such, the Fourth Department denied this request.

On another point, the defendant argued that the plaintiff failed to prove who exactly had exclusive control over the instrument and therefore caused the injury. The defendant argued that in order to hold the employer (the hospital) liable, the plaintiff needed to prove which of its employees was responsible for the negligence.

The defendant made this argument under the doctrine of res ipsa loquitor. Res ipsa loquitor is Latin for “the thing speaks for itself.” It is reserved for cases of negligence where the injury itself or the nature of the accident infers negligence. The fact that a surgical instrument was left inside someone’s body after an operation therefore infers that someone acted negligently. However, the defendant was wrong in arguing the plaintiff needed to prove who left the instrument there. Res ipsa loquitor does not require any evidence of how a specific person behaved negligently. Thus it wasn’t necessary for the plaintiff to prove which nurse or doctor held the instrument at what time and who was responsible for leaving it in the plaintiff’s body.

Finally, the defendant argued that the court erred in denying its request to ask the plaintiff if other medical conditions may have caused the injury alleged to have been caused by the medical malpractice. Because the plaintiff did not properly preserve this argument, the Fourth Department refused to consider it.

All judges concurred in the Fourth Department opinion except for one, who concurred in the result but disagreed with the other judges on the nurse testimony issue. This judge stated that he believes that the nurse’s testimony was not required by law to have been precluded.

If you or a loved one has suffered from personal injuries due to medical malpractice, you may have legal recourse against the doctor, hospital or nurses. Call the experienced medical malpractice lawyers at the Law Offices of Thomas L. Gallivan, PLLC today to discuss your potential claims.


Lauto v. Catholic Health Sys., Inc., 125 AD3d 1352 (4th Dept., Feb. 6, 2015).

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