Torts I, Page 265–267

James v. Wormuth

Court of Appeals of New York, 2013


Defendant was preforming surgery on plaintiff when his guide wire dislodged and got stuck somewhere inside plaintiff. He tried and failed to find and remove it, so he thought it best to just finish the surgery. He notified plaintiff of what happened and why. After a couple months, plaintiff returned and defendant removed it. Plaintiff then filed a malpractice action.

Procedural History:

Trial court granted a directed verdict to the defendant that was affirmed by the appellate division.


Is leaving a foreign object in someone during surgery negligence res ipsa loquitur?

Plaintiff's Argument:

The fact that the wire got stuck inside plaintiff is evidence of some negligence.

Defendant's Argument:

Plaintiff did not present any expert testimony that such a reaction was not standard practice, nor that defendant had made any error that caused the wire to become dislodged.


For res ipsa loquitur, the harm must have been caused by an agency or instrumentality within the exclusive control of the defendant


Defendant was not the only person in the surgery and someone else may have caused the action that dislodged the wire.

No expert testimony was presented that should have supported that it was negligent to leave the wire in plaintiff.

It does not count as a foreign object that the doctor negligently left unintentionally as the doctor left the wire intentionally, and thus must be compared against a standard of care.


Leaving an object in someone is not necessarily negligence. Affirmed with costs.