Claim arguing negligence in failing to remove surgical guide wire is malpractice
Dr. Thomas Casale, M.D., apparently failed to remove a guide wire from Gina Harrington's breast after surgery. Harrington filed an ordinary negligence claim against Casale and did not comply with the many procedural requirements of a medical malpractice claim. The Defendant sought dismissal of her claim and also appealed the lower court's decision to allow her to follow-up with a malpractice claim, arguing that she was required to file every claim she had in the first lawsuit.The Court of Appeals upheld the trial court's decision on both issues. It held that addressing the question of the surgical wire was inherently a professional issue requiring compliance with the rules of medical malpractice. On the other hand, it refused to preclude Harrington from bringing a malpractice claim later. The court noted that at the time Harrington's ordinary negligence case was filed, she was in the midst of the medical malpractice "waiting period" and did not possess the capacity to file a malpractice claim. Further, the general rule is that only a dismissal "on the merits" of a claim precludes a later filing, and this dismissal clearly did not address the merits of Harrington's allegations.