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Delaney v. Champlain Valley Physicians Hospital Medical Center
Citations: 232 A.D.2d 840; 648 N.Y.S.2d 761; 1996 N.Y. App. Div. LEXIS 10490
Court: Appellate Division of the Supreme Court of the State of New York; October 24, 1996; New York; State Appellate Court
Appeals were made from three judgments by the Supreme Court, which dismissed the complaint after the plaintiffs’ case concluded without expert testimony. Plaintiff Gerald F. Delaney underwent an abdominal perineal resection at Champlain Valley Physicians Hospital, where surgical gauze was intentionally left in the wound for healing, with a "tail" for daily removal as ordered by surgeon Dr. Hassam. After Hassam's vacation, care was taken over by Dr. Sarmaroy, who relied on nursing staff for gauze removal. On February 22, 1992, Sarmaroy found no gauze tail and assumed all packing had been removed. Delaney was discharged and later examined by both doctors without unusual findings until he reported protruding gauze on March 22, 1992. Although Hassam was able to remove most packing, some had adhered to tissue, requiring minor surgery. In the medical malpractice claim, plaintiffs sought damages based on alleged negligence for failing to remove the packing properly. However, the court dismissed the case, stating that the plaintiffs could not rely solely on res ipsa loquitur, as the packing was intentionally left for treatment and the alleged negligence pertained to post-operative care rather than the initial act of leaving the gauze in place. To establish negligence, expert testimony was required to evaluate whether the defendants' actions met professional standards, which the plaintiffs did not provide. The court affirmed the dismissals, concluding that the plaintiffs' choice to forgo expert testimony was strategic and did not warrant a new trial. The judgments were affirmed with costs.