Colacicco v. Karumbaya

65 Pa. D. & C.4th 555, 2004 Pa. Dist. & Cnty. Dec. LEXIS 207
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedJanuary 2, 2004
Docketno. 99 CV 2861
StatusPublished

This text of 65 Pa. D. & C.4th 555 (Colacicco v. Karumbaya) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colacicco v. Karumbaya, 65 Pa. D. & C.4th 555, 2004 Pa. Dist. & Cnty. Dec. LEXIS 207 (Pa. Super. Ct. 2004).

Opinion

NEALON, J.,

ORDER

Defendants have filed motions for summary judgment seeking to dismiss this medical malpractice action on the grounds that the plaintiffs cannot prove any harm that was caused by the defendants’ negligence. Defendants concede that they deviated from the applicable standard of care by failing to remove a surgical sponge from plaintiff James Colacicco following his lumbar spine surgery. However, since the sponge was safely removed during a subsequent laminectomy procedure before it caused any pain or infection, the defendants submit that they are entitled to judgment in their favor inasmuch as Colacicco cannot demonstrate any damage traceable to their admitted negligence.

By way of brief background, Colacicco underwent lumbar spine surgery that was performed by Romola Karumbay a M.D. at the Moses Taylor Hospital on February 14, 1994, during which procedure J. Wellicha L.RN. and M. Creeden R.N. acted as the attending surgical nurses. In the years following this surgery, Colacicco reportedly experienced low back pain and his family physician ordered a diagnostic x-ray on June 11,1997. (See dkt. entry no. 10, ¶¶14,19-20.) According to Dr. Karumbaya’s office note dated June 12, 1997:

“I was contacted by Dr. Dietrich, radiologist from Moses Taylor Hospital, on 6/11/97 that James Colacicco had a lumbar x-ray which was suspicious for a 4 x 4 sponge in the operative area. I reviewed these films personally and confirmed the same. I then contacted the patient and spoke to both him and his wife.... I relayed my concern that with a foreign body, i.e., sponge, left behind it needs to be re[558]*558moved.... It should be noted that I had a lengthy discussion with the patient’s wife who was an O.R. nurse in the past— that though the sponge may not be causing much symptoms it needs to be removed. The sponge most likely is sterile and walled off, but it could be a potential source for infection and needs to be removed.” (Id., no. 49, exhibit A.) (emphasis added)

Shortly thereafter, Colacicco came under the care of Michael J. Gratch M.D., Willow Grove, who treated Colacicco on August 8, 1997, September 12, 1997 and October 7,1997. Dr. Gratch diagnosed Colacicco as suffering from spinal stenosis between the third and fourth lumbar vertebrae (L3-L4) and an MRI scan revealed the presence of a retained surgical sponge in the area of the fifth lumbar vertebrae and sacmm (L5-S1). (Dkt. entry no. 39, exhibit A, pp. 12-13.) At that time, Dr. Gratch “did not believe that [Colacicco] had complaints referable to the foreign body.” (Id., p. 15.) Nevertheless, because of Colacicco’s persistent low back symptoms, he was scheduled for a lami-nectomy and fusion with instrumentation at the L3-L4 level. Dr. Gratch advised Colacicco that he would remove the retained sponge at the time of the surgery but “did not think removing the sponge alone would change his symptoms.” (Id., p. 18.)

On October 16, 1997, Dr. Gratch performed spinal surgery and discovered a surgical sponge “the size of an egg” that “was fairly well encapsulated” and was situated to the side of the L5-S1 level of the spine. (Id., pp. 20,23.) During his discovery deposition, Dr. Gratch opined that while he did not believe that the sponge was the cause of Colacicco’s low back pain, he nonetheless removed it since it was “a source of potential infection.” (Id., pp. 21-22.) Dr. Gratch [559]*559further indicated that the site of his L3-L4 surgery and the area where the sponge was found “were in two different locations” and that the “majority of the charges” for the operative procedure that he performed were related to “[t]he surgery at L3-L4.” (Id., pp. 23-24.)

In their summary judgment motion, the defendants contend that Dr. Gratch’s surgery was necessitated by Colacicco’s spinal stenosis rather than the presence of the retained sponge and that its removal was merely incidental to the independently scheduled laminectomy/fusion procedure. Defendants posit that the sponge was not the source of any pain or infection and was removed before it caused any harm to Colacicco. Hence, the defendants advance a “no harm-no foul” argument and assert that they are entitled to judgment in their favor as a matter of law due to the inability of Colacicco to prove any injury or damage proximately caused by the retained sponge. Compare Mancini v. Yavorek, 61 D.&C.4th 1 (Northumb. Cty. 2003) (patient developed infection from two retained sponges in her pelvic region and was required to undergo an exploratory lap-arotomy to remove the sponges and drain an intra-abdomi-nal abscess).

To prevail in a medical malpractice action, a plaintiff must “establish a duty owed by the physician to the patient, a breach of that duty by the physician, that the breach was the proximate cause of the harm suffered, and the damages suffered were a direct result of the harm.” Toogood v. Rogal, 573 Pa. 245, 254-55, 824 A.2d 1140, 1145 (2003). Expert testimony is usually required to demonstrate the elements of a malpractice claim since medical issues are typically beyond the ordinary knowledge and experience of laypersons, but the doctrine of res ipsa loquitur recognizes a nar[560]*560row exception to that rale for obvious cases in which lay jurors may apply their own knowledge and common sense to deduce an inference of negligence and establish the cause of an injury. In medical malpractice litigation, res ipsa lo-quitur is reserved for only the most obvious instances of negligence such as “the sponge left in the patient cases.” Id., 573 Pa. at 257, 824 A.2d at 1147. See also, Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 473 n.11, 437 A.2d 1134, 1138 n.11 (1981) (“On the other hand there are other kinds of medical malpractice, as where a sponge is left in the plaintiff’s abdomen after an operation, where no expert is needed to tell the jury that such events do not usually occur in the absence of negligence.”). As stated above, the defendants acknowledge that they deviated from the applicable standard of care by failing to remove the surgical sponge from Colacicco; however, they maintain that Colacicco cannot possibly establish the causation and damage elements of a malpractice claim.

Summary judgment is appropriate under Pa.R.C.P. 1035.2 only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. When considering a motion for summary judgment, the record must be viewed in a light most favorable to the non-moving party with all doubts as to the existence of a factual issue being resolved against the movant. Federal National Mortgage Association v. Citiano, 834 A.2d 645, 647 (Pa. Super. 2003). Summary judgment may be granted only if it is clear and free from doubt that the moving party is entitled to judgment in its favor. Brotech Corp. v. Delmarva Chemicals Inc., 831 A.2d 613, 615 (Pa. Super. 2003); Ryan v. Asbestos Corp. Ltd., 829 A.2d 686, 688 (Pa. Super. 2003).

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Related

Rogers v. Moody
242 A.2d 276 (Supreme Court of Pennsylvania, 1968)
Toogood v. Rogal
824 A.2d 1140 (Supreme Court of Pennsylvania, 2003)
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765 A.2d 786 (Supreme Court of Pennsylvania, 2001)
Murphy v. Abbott Laboratories
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Montgomery v. Bazaz-Sehgal
798 A.2d 742 (Supreme Court of Pennsylvania, 2002)
Jones v. Harrisburg Polyclinic Hospital
437 A.2d 1134 (Supreme Court of Pennsylvania, 1981)
Montgomery v. Bazaz-Sehgal
742 A.2d 1125 (Superior Court of Pennsylvania, 1999)
Ryan v. Asbestos Corp. Ltd.
829 A.2d 686 (Superior Court of Pennsylvania, 2003)
Shumosky v. Lutheran Welfare Services of Northeastern PA, Inc.
784 A.2d 196 (Superior Court of Pennsylvania, 2001)
Brotech Corp. v. Delmarva Chemicals, Inc.
831 A.2d 613 (Superior Court of Pennsylvania, 2003)
Federal National Mortgage Ass'n v. Citiano
834 A.2d 645 (Superior Court of Pennsylvania, 2003)

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Bluebook (online)
65 Pa. D. & C.4th 555, 2004 Pa. Dist. & Cnty. Dec. LEXIS 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colacicco-v-karumbaya-pactcompllackaw-2004.