Fessenden v. Robert Packer Hospital
97 A.3d 1225
| Pa. Super. Ct. | 2014Background
- In 2004 Richard Fessenden underwent an esophagogastrectomy performed by Dr. David Herían at Robert Packer Hospital; a laparotomy sponge was left in his abdomen.
- Beginning shortly after the 2004 surgery Fessenden had intermittent lower abdominal pain; in 2008 a CT scan revealed the retained sponge.
- In August 2008 Dr. Burt Cagir removed the sponge, drained an abscess, and excised Fessenden’s gallbladder and a portion of small bowel; a second procedure for further drainage followed.
- The Fessendens sued in 2010 for medical malpractice and loss of consortium, filing a certificate of merit asserting expert testimony was unnecessary and that res ipsa loquitur applied.
- Defendants moved for summary judgment arguing res ipsa loquitur did not apply and the plaintiffs lacked expert proof of causation; the trial court granted summary judgment and plaintiffs appealed.
- The appellate court reversed, holding the facts warranted a res ipsa loquitur inference and that causation and negligence were for the jury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether res ipsa loquitur applies to allow an inference of negligence without expert testimony | The retained sponge is the kind of event that does not occur absent negligence; no expert is needed | Plaintiffs failed to eliminate other responsible causes and did not prove causation; expert testimony required | Res ipsa loquitur applies; plaintiffs met §328D elements and were entitled to a jury inference |
| Whether plaintiffs eliminated other responsible causes (Restatement §328D(1)(b)) | No other surgeries or explanation exist; only defendants’ negligence explains the retained sponge | The four-year gap and plaintiff’s other health issues create alternative explanations | Plaintiffs bore only the preponderance burden to show defendant likely cause; court found other causes were not reasonably probable |
| Whether expert testimony was required to establish negligence/causation | Not required because a lay juror can recognize that leaving a sponge is not ordinary absent negligence | This case needs expert proof and is unsuitable for jury inference without experts | Expert testimony not required for this archetypal "sponge left behind" case; jury may infer negligence |
| Whether summary judgment was appropriate given the record | Plaintiffs argued genuine issues of material fact exist for jury, so SJ improper | Defendants argued absence of causation evidence warranted SJ | Summary judgment reversed; issues for jury remain and case remanded |
Key Cases Cited
- Jones v. Harrisburg Polyclinic Hosp., 437 A.2d 1134 (Pa. 1981) (recognizes res ipsa loquitur in medical malpractice where no fund of common knowledge is needed)
- Quinby v. Plumsteadville Family Practice Inc., 907 A.2d 1061 (Pa. 2006) (applies §328D to medical contexts and explains elimination-of-other-causes test)
- Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418 (Pa. 2001) (summary judgment standard and de novo review of legal issues)
- Gilbert v. Korvette, Inc., 327 A.2d 94 (Pa. 1974) (adopts Restatement formulation of res ipsa loquitur)
- Robinson v. Wirts, 127 A.2d 706 (Pa. 1956) (recognizes sponge-left-behind as a category not requiring expert testimony)