10 ft. of gauze found in patient: did res ipsa loquitur apply?

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CASE Background: On October 13, 2002, Carlos Ivey was struck by a motor vehicle and sustained a severe injury to his right thigh. Ivey sought treatment for his injury at the emergency room at Carraway Methodist Medical Center. After a physical examination and X-rays, Ivey was diagnosed with a large contusion. He was given prescription medication and discharged. Ivey returned to the hospital's emergency room on October 30, 2002, because he had experienced increased swelling and pain from the injury following his discharge. ACT scan revealed a large collection of fluid on the front middle portion of the right thigh. Ivey was diagnosed as having an infection and Necrotic cellulitis ( a spreading bacterial infection just below the skin surface). Because of the severity of the infection, Ivey was admitted to the hospital and antibiotics were administered. On the night of Iveys' admission, Dr. Robert Stinson performed an irrigation procedure during which he made an incision into the wound, drained fluid from it and removed dead skin tissue in order to reduce the swelling and clean the infected area. Following the procedure, the open cavity of the wound was packed with rolls of Kerlix gauze, a clean dressing commonly used to "pack," plug, and absorb drainage in large wounds. It is manufactured in rolls that are two to four inches wide, and twelve feet long.
Testimony at trial explained that packing a large wound is done by placing an entire roll of gauze into the wound, but 'leaving a tail' until the gauze is extracted from the site of the wound. On October 31, 2002, Dr. Carraway performed a second irrigation and debridement procedure. He maintained that before he entered the operating room equipped for performing surgical operations, nurses had prepped Ivey's wound for surgery, including removing all the gauze from the site. He stated that he visually inspected the site before starting the procedure, and he did not notice any foreign objects. Dr. Carraway removed more dead tissue from the site and cleaned it. Dr. Carraway testified that before completing the procedure, he felt inside the cavity with his fingers to ensure that it was clean and that no foreign objects remained in it. He also asked for and received a correct needle and sponge count from the nurses. Dr. Carraway stated that he did not use Kerlix gauze during the operation, that Kerlix gauze is not used in surgeries, and is not included in the count taken at the end of a surgical operation. Following surgery, an open cavity' remained at the wound site measuring approximately seven inches by six inches and varying in depth. The cavity was repacked with Kerlix gauze each time. However, Dr. Carraway stated that he never packed or repacked the cavity. The patient did not contradict Dr. Carraway. After Dr. Carraway left the operating room, nurses again packed the wound cavity with Kerlix gauze. Ivey remained hospitalized, and Dr. Carraway ordered certain treatment for the wound infection, including whirlpool therapy and more antibiotics. The Kerlix gauze packing was removed each time. Dr. Carrawav stated that he did not use Kerlix gauze during the operation, that Kerlix gauze is not used in surgeries, and is not included in the count taken at the end of an operation. Ultimately, the patient was transferred to Cooper Green Medical Center (Cooper (keen) where, during exploratory surgery by Dr. Phillip Johnson, Dr. Johnson removed a large piece of Kerlix gauze which was inside an abscess. The piece of Kerlix gauze was approximately ten feet long!

CASE FACTS-On October 22, 2004, Ivey filed suit against CMMC, and Dr. Carraway alleging that the defendants had violated the standard of care as evidenced by the Kerlix Gauze found by Dr. Johnson inside Ivey's right leg. Both defendants filed motions for summary judgment. The trial court entered an order granting CMMC's motion for summary judgment motion for summary judgment (a written request for a judgment in the moving party's favor before a lawsuit goes to trial and based on recorded testimony outside court)The case against Dr. Carraway proceeded to trial. After a jury trial, the trial judge granted Dr. Carraway's motion for summary, judgment. The patient appealed.

COURT'S OPINION: The Supreme Court of Alabama affirmed the trial judge's granting of Dr. Carraway's Motion for summary judgment. The court held, inter alia- A phrase used in Pleading to designate that a particular statute set out therein is only a part of the statute that is relevant to the facts of the lawsuit and not the entire statute. , that the patient failed to present expert testimonyTestimony about a scientific, technical, or professional issue given by a person qualified to testify because of familiarity with the subject or special training in the field. ..... Click the link for more information. concerning whether Dr. Carraway breached the applicable standard of care by failing to discovery and remove the Kerlix gauze from Ivey's leg in order to preserve a jury question on that issue. Because the patient failed to do so, the court concluded that the trial court correctly granted Dr. Carraway's motion for judgment as a matter of lawJudgment as a matter of law (JMOL) is a motion made by a party, during trial, claiming the opposing party has insufficient evidence to reasonably support its case. JMOL is similar to summary judgment, which is a motion made before trial. ..... Click the link for more information.. LEGAL COMMENTARY: The Court rejected the plaintiff's contention that because a foreign object was left inside the patient, the doctrine of RIL RIL Recombinant Inbred Lines was applicable and would have entitled the plaintiff to a jury trial on the grounds that in such cases there is no need for a plaintiff to have to introduce expert medical testimony. Undoubtedly, some courts would have ruled that the doctrine of RIL was applicable, had they been confronted with the same set of facts and circumstances as was the court in the case at bar. However, this court did not see fit to invoke the doctrine.
If not in such a case, then when?