TX: Res Ipsa applied--no 'causation' proved: injured patient wins battle but loses war.

CASE FACTS: On January 30, 2003, Lizalde Marichalar underwent exploratory surgery triggered by an ectopic pregnancy. For a month after surgery, Marichalar experienced abdominal pain. On February 28.2003, she was admitted to an emergency room where it was discovered that she had a foreign object in her body. During surgery, a ten-inch gauze sponge was removed that had been left in her body from the prior surgery. The patient brought suit for medical malpractice against Luis Alberto Garcia-Arecha, M.D., Luis Richard Garcia, M.D., Gary R. Groce, R.N., Marianna Sanchez, and Christus Santa Rosa Health Care Corporation, d/b/a Christus Santa Rosa Healthcare and Hospital. The plaintiff filed the necessary affidavits required to bring suit for medical malpractice against almost all of the named defendants. However, the affidavits failed to mention Dr. Garcia. Dr. Garcia's Motion for Summary was denied. He appealed.

COURT'S OPINION: The District Court of Appeals of Texas reversed the order of the trial court denying Dr. Garcia's motion. The court held, inter alia, that even if the application of the doctrine of Res Ipsa Loquitur (RIL) created an exception to the requirement for expert medical testimony, the plaintiff still needed an expert medical testimony to prove causation. Accordingly, since there was not a scintilla of evidence regarding causation, the court had no choice but to reverse the order of the lower court which denied Dr. Garcia's motion for judgment. The court went on to explain that the jury in this case would not need expert testimony to prove the fact that surgery is necessary to remove a sponge improperly left in a patient's body. That is something within the common knowledge of lay persons. Further, the court concluded that the jury, when presented with the patient's testimony of the pain she suffered as well as the medical records reflecting the necessary treatment, would have sufficient evidence to deduce that the sponge proximately caused the need for the subsequent surgery and that the patient suffered damages as a result of the surgery. Removing a sponge left inside a patient's body is within the knowledge of a common lay person. However, what the necessary treatment and damages resulting there from are, is not known to the common lay person. Accordingly, an expert opinion as to that issue was required. Since it was not available, the court concluded that the trial judge erred in denying Dr. Garcia's motion. Thus, the court concluded that since the plaintiff did not serve the defendant, Dr. Garcia, with appropriate documentation referencing causation, the lower court erred in denying Dr. Garcia's motion for judgment. Garcia v. Marichalar, No. 04-05-00344-CV (Tex. App. Dist.4 4/5/2006) S.W.3d--TX

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to this writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's who in America and Who's Who in the World.