dissenting.
I respectfully dissent.
As the majority notes, "in some situations, a physician's allegedly negligent act *1193or omission is so obvious that expert testimony is unnecessary." Op. p. 1190-1191 (citing Wright v. Carter, 622 N.E.2d 170, 171 (Ind.1993)).
[There are some situations in which a physician defendant's allegedly negligent act or omission is so obvious as to allow plaintiffs to rely on the doctrine of res ipsa loquitur. Juries do not need an expert to help them conclude, say, that it is malpractice to operate by mistake on the wrong limb. Sometimes, the undisputed facts themselves create an inference of negligence such that the judge cannot say that the defendant must win as a matter of law, the contrary opinion of the medical review panel notwithstanding.
Wright, 622 N.E.2d at 171. Our supreme court has previously held that expert opinion evidence is generally not required in cases involving the failure of the operating physician to remove a surgical implement or other foreign object from the patient's body. Id. at 172.
In Burke v. Capello, 520 N.E.2d 439 (Ind.1988),4 the plaintiff underwent hip replacement surgery and experienced "exceptional pain" following the surgery. Id. at 440. Upon examination, "it was discovered that a fragment of cement used when affixing the prosthesis had been left in the wound and was lodged near the femoral nerve." Id. The plaintiff then underwent surgery to remove the cement and, following its removal, the severe pain subsided. Id. Our supreme court determined that the plaintiff was not required to present expert medical testimony concerning the standard of care because the case "involves the leaving of a foreign object in the body which should have been removed by an act understandable by the jury without extensive technical input." Id. at 441.
A rational trier of fact could have inferred from the admissible evidence that the cement would have been in at least a hardening state and thus perceptible by sight or touch to a careful observer engaged in the process of cleansing the wound of debris, instruments, and other paraphernalia.
Id.
In this case, when Dr. Szymanowski performed the vaginal hysterectomy on Shook on July 8, 1996, Dr. Szymanowski removed the Hulka clip from the left fallopian tube, but was unable to find and remove the Hulka clip he had previously affixed to the right fallopian tube. In his deposition, Dr. Szymanowski testified:
Q: Why did you remove the left Hulka clip and attempt to remove the right one? What purpose was there in doing that?
A: I suppose, simply, it's a foreign body, and if its accessible, you would try to get it out, I assume.
Appellant's App. p. 88 (emphasis added).
Thus, even Dr. Szymanowski recognized that the Hulka clip on the right fallopian tube had, at that point, become a foreign body because it was no longer medically necessary. Furthermore, Dr. Szymanow-ski could not recall whether he told Shook that the right Hulka clip -was not removed. Appellant's App. p. 89.
Two months later, on September 12, 1996, Dr. Szymanowski removed Shook's *1194right fallopian tube and ovary due to her complaints of pain. However, onee again, the remaining Hulka clip, which by now was no longer attached to the right fallopian tube, was not removed. In the documents submitted to the trial court, there was no evidence that Dr. Szymanowski even attempted to locate the Hulka clip and to remove it at the time of that surgical procedure.
I would hold that onee Dr. Szymanowski failed to locate and remove the Hulka clip from Shook's body during the July 8, 1996 surgery after it had become medically unnecessary, the clip became a foreign object. His subsequent failure to remove the clip during the September 12, 1996 surgery and possible failure to notify Shook that it remained in her body after these two separate surgeries "is sufficient to raise an inference of negligence, thereby obviating the need for an affidavit to that effect from an expert in order for" Shook to survive the defendants' motions for summary judgment. See id. Therefore, I would reverse the trial court and remand this case with instructions to deny Dr. Szymanowski's and GYN's motions for summary judgment.
. Burke was overruled on other grounds by Vergara by Vergara v. Doan, 593 N.E.2d 185, 186 (Ind.1992). In Vergara our supreme court abandoned the modified locality rule, which measured the defendant's conduct against that of other doctors in the same community.