Opinion
2009-1533.
Decided September 6, 2011.
E. Stewart Jones Law Firm, PLLC, Troy (E. Stewart Jones Jr. of counsel), for plaintiffs.
Stafford, Piller, Murnane, Plimpton, Kelleher Trombley, PLLC, Plattsburgh (Edward J. Trombley of counsel), for defendants Champlain Valley Physicians Hospital Medical Center and Craig Hofsess, M.D.
Maguire, Cardona Ryan, P.C., Menands (Anthony V. Cardona of counsel), for defendants Olof Franzon, M.D. and Advanced Women's Healthcare in Obstetrics Gynecology, PLLC.
On June 25, 2007, plaintiff Cindi L. LaFountain (hereinafter plaintiff) underwent a hysterectomy and bilateral salpingo-ooperectomy at defendant Champlain Valley Physicians Hospital Medical Center (hereinafter CVPH). The surgery was performed by defendant Olof Franzon, an obstetrician and gynecologist, and defendant Craig Hofsess — an employee of CVPH — was the anesthesiologist present. Following the surgery, plaintiff was diagnosed with nerve injuries involving her right upper extremity. Plaintiff and her husband, derivatively, then commenced this action on September 28, 2009, alleging that her injuries resulted from, inter alia, Hofsess' improper positioning of her right arm during surgery. With the depositions of all parties now complete, CVPH and Hofsess move for summary judgment dismissing the complaint.
A bilateral salpingo-oophorectomy is a surgery in which both ovaries are removed, along with the fallopian tubes.
On a motion for summary judgment, the movant must establish, by admissible proof, its prima facie entitlement to judgment as a matter of law ( see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967; Alvarez v Prospect Hosp., 68 NY2d 320, 324). Once the movant has met this initial burden, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of fact ( Zuckerman v City of New York, 49 NY2d 557, 560).
Initially, the Court finds that CVPH and Hofsess have established their prima facie entitlement to judgment as a matter of law. Specifically, Hofsess submitted an affidavit "describing [his] treatment of plaintiff and stating that [he] did not deviate from the appropriate standard of care" ( Maki v Bassett Healthcare , 85 AD3d 1366 , 1368). According to Hofsess, "[his] positioning of [plaintiff's] right arm on the arm board that is actually part of the surgical table was . . . standard and in no way different from the norm." Hofsess further stated that, "[b]ased upon [his] education, training and experience, [his] review of all the exhibits . . . and [his] personal involvement with [the] case, [he] find[s] no deviation of any kind from the appropriate standard of care by [CVPH] or its employees, including [him]."
The exhibits include, inter alia, plaintiff's chart from CVPH.
The Court declines to grant the motion, however, as plaintiff has succeeded in raising a genuine issue of fact. Plaintiff contends that this is a classic res ipsa loquitor fact pattern. Indeed, "[u]nder appropriate circumstances, the evidentiary doctrine of res ipsa loquitur may be invoked to allow the factfinder to infer negligence from the mere happening of an event" ( States v Lourdes Hosp., 100 NY2d 208, 211; accord DeCarlo v Eden Park Health Servs., Inc. , 66 AD3d 1211 , 1212). This doctrine "may be applied where a plaintiff has established a prima facie case of negligence showing that the event is of a kind not ordinarily occurring in the absence of negligence, [that] defendant had exclusive control over the agency or instrumentality causing the event, and [that] plaintiff did not voluntarily act to cause or contribute to the event" ( DeCarlo v Eden Park Health Servs., Inc., 66 AD3d at 1212). Here, plaintiff has established (1) that, in the absence of negligence, nerve injuries involving the right upper extremity do not ordinarily occur following a hysterectomy and bilateral salpingo-ooperectomy; (2) that Hofsess had exclusive control over the anesthesiology equipment that allegedly caused the nerve injuries; and (3) that plaintiff, who was under anesthesia throughout the surgery, did not cause or contribute to the event.
Although plaintiff did not submit an expert affidavit in opposition to the motion, the Court notes that "expert testimony is not necessary to enable [a] jury to conclude that, more likely than not, the resulting injury was caused by the [physician's] negligence" ( Dolaway v Urology Assocs. of Northeastern New York, P.C., 72 AD3d 1238, 1239 [2010]; see also Escobar v Allen , 5 AD3d 242 , 243 [2004]).
Therefore, having considered the Affidavit of Edward J. Trombley, Esq. with exhibits attached thereto, sworn to on June 23, 2011, submitted in support of the motion; the Affidavit of Craig Hofsess, M.D., sworn to on July 7, 2011, submitted in support of the motion; the Memorandum of Law of Edward J. Trombley, Esq., undated, submitted in support of the motion; the Affidavit of E. Stewart Jones, Esq., sworn to on August 26, 2011, submitted in opposition to the motion; and the Memorandum of Law of E. Stewart Jones, Esq., dated August 26, 2011, submitted in opposition to the motion, it is hereby
ORDERED that the motion for summary judgment of defendants Champlain Valley Physicians Hospital Medical Center and Craig Hofsess, M.D. is denied.
The original of this Decision and Order is returned to counsel for plaintiffs for filing and service with notice of entry. The Notice of Motion dated June 23, 2011 has been filed by the Court together with the above-referenced submissions.