| Gagnon v St. Joseph's Hosp. |
| 2011 NY Slip Op 09692 [90 AD3d 1605] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| Joseph F. Gagnon, Jr., et al., Appellants, v St. Joseph's Hospital,through its Officers, Agents and/or Employees, et al., Respondents. |
—[*1] Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (James D. Lantier of counsel), fordefendants-respondents David Eng, M.D., Individually and as an Officer, Agent and/or Employeeof St. Joseph's Hospital and Craig Montgomery, M.D., Individually and as an Officer, Agentand/or Employee of St. Joseph's Hospital. Sugarman Law Firm, LLP, Syracuse (Joshua M. Gillette of counsel), fordefendant-respondent Richard Kelley, M.D., Individually and as an Officer, Agent and/orEmployee of St. Joseph's Hospital.
Appeal from an order and judgment (one paper) of the Supreme Court, Oneida County(Samuel D. Hester, J.), entered November 30, 2010 in a medical malpractice action. The orderand judgment granted the motions of defendants Richard Kelley, M.D., individually and as anofficer, agent and/or employee of St. Joseph's Hospital, David Eng, M.D., individually and as anofficer, agent and/or employee of St. Joseph's Hospital, and Craig Montgomery, M.D.,individually and as an officer, agent and/or employee of St. Joseph's Hospital, for summaryjudgment dismissing the complaint against them.
It is hereby ordered that the order and judgment so appealed from is reversed on the lawwithout costs, the motions are denied and the complaint against defendants Richard Kelley,M.D., David Eng, M.D., and Craig Montgomery, M.D., individually and as officers, agentsand/or employees of St. Joseph's Hospital, is reinstated.
Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedlysustained by Joseph F. Gagnon, Jr. (plaintiff) as a result of defendants' medical malpractice.We agree with plaintiffs that Supreme Court erred in granting the motion of defendantsDavid Eng, [*2]M.D. and Craig Montgomery, M.D.(Montgomery defendants) and the motion of defendant Richard Kelley, M.D., seeking summaryjudgment dismissing the complaint against them. On a motion for summary judgment,defendants in a medical malpractice case have "the initial burden of establishing the absence ofany departure from good and accepted medical practice or that the plaintiff was not injuredthereby" (Williams v Sahay, 12AD3d 366, 368 [2004]; seeHumphrey v Gardner, 81 AD3d 1257, 1258 [2011]). In support of their motion, theMontgomery defendants submitted an expert's affidavit that "fail[ed] to address each of thespecific factual claims of negligence raised in plaintiff's bill of particulars, [and thus] thataffidavit is insufficient to support a motion for summary judgment as a matter of law" (Larsen v Banwar, 70 AD3d 1337,1338 [2010]).
The Montgomery defendants also failed to establish as a matter of law that their allegednegligence was not a proximate cause of plaintiff's injury (see generally Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]; Padilla v Verczky-Porter, 66 AD3d 1481, 1483 [2009]). The expertasserted that the Montgomery defendants could not have damaged plaintiff's left phrenic nerveduring surgery on his cervical spine because the surgical site was on the right side of the cervicalspine and the damaged nerve was on the left side thereof. The expert also asserted that theremoval of an osteophyte on the left side at C4-5 could not have damaged the left phrenic nervebecause that nerve is located at C3. Dr. Eng's operative notes, however, indicate that theMontgomery defendants also removed an osteophyte from the left side at C3-4 and used screwsto attach a plate to the cervical spine, and the expert did not state whether the left phrenic nervecould have been damaged during those procedures. The Montgomery defendants' failure to makea prima facie showing of entitlement to summary judgment "requires denial of the motion,regardless of the sufficiency of [plaintiffs'] opposing papers" (Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]).
We also conclude that Dr. Kelley failed to meet his initial burden on his motion for summaryjudgment dismissing the complaint against him. Dr. Kelley submitted his own affidavit insupport of the motion and contended therein that he was entitled to summary judgment becausehe complied with the accepted standard of care and did not cause an injury to plaintiff's leftphrenic nerve. According to Dr. Kelley, his instruments remained on the right side of plaintiff'sspine and did not cross the midline of the anterior cervical spine. In his operative notes, however,Dr. Kelley stated that he performed tasks "on either side of the midline." The operative notes alsoindicate that Dr. Kelley used retractors to hold back structures in plaintiff's neck, but the affidavitof Dr. Kelley did not establish as a matter of law that the use of retractors could not have causedan injury to the left phrenic nerve. Because Dr. Kelley failed to make a prima facie showing ofentitlement to summary judgment, we need not consider the adequacy of plaintiff's opposingpapers (see generally Winegrad, 64 NY2d at 853).
We decline the request of plaintiffs to search the record and grant summary judgment onliability with respect to the cause of action against the Montgomery defendants and Dr. Kelley onthe theory of res ipsa loquitur pursuant to CPLR 3212 (b). "[O]nly in the rarest of res ipsaloquitur cases may . . . plaintiff[s] win summary judgment . . . Thatwould happen only when the plaintiff[s'] circumstantial proof is so convincing and thedefendant[s'] response so weak that the inference of defendant[s'] negligence is inescapable" (Morejon v Rais Constr. Co., 7 NY3d203, 209 [2006]), and that is not the case here (see Dengler v Posnick, 83 AD3d 1385, 1386 [2011]). Contrary tothe contention of plaintiffs, the court acted within its discretion when it rejected the submissionof the curriculum vitae of their expert as untimely. "While a court can in its discretion accept latepapers, CPLR 2214 and [CPLR] 2004 mandate that the delinquent part[ies] offer a valid excusefor the delay" (Mallards Dairy, LLC vE&M Engrs. & Surveyors, P.C., 71 AD3d 1415, 1416 [2010] [internal quotation marksomitted]) and, here, plaintiffs offered no excuse for the delay.[*3]
In light of our determination, we do not address plaintiffs'remaining contention.
All concur except Carni, J., who dissents and votes to affirm in the following memorandum.
Carni, J. (dissenting). I respectfully dissent inasmuch as I disagree with my colleagues thatSupreme Court erred in granting the motion of defendants David Eng, M.D. and CraigMontgomery, M.D. (collectively, Montgomery defendants) and the motion of defendant RichardKelley, M.D. for summary judgment dismissing the complaint against them. I therefore wouldaffirm the order and judgment.
On February 9, 2007, Joseph F. Gagnon, Jr. (plaintiff) underwent an anterior cervicaldiscectomy at the C3-4 and C4-5 levels. The surgical approach and incision were made anteriorlyon the right side of plaintiff's neck by Dr. Kelley, a board certified otolaryngologist. Afterperforming the surgical approach, Dr. Kelley was excused from the operating room. Thediscectomy was then performed by Dr. Eng, a board certified neurosurgeon, who was assisted byDr. Montgomery, also a board certified neurosurgeon. Plaintiff was discharged from the hospitallater that day and instructed to wear a cervical collar. There is no dispute that, upon dischargefrom the hospital following the surgery, plaintiff did not experience any symptoms or present anycomplaints consistent with a surgically-related left phrenic nerve injury.
On February 22, 2007, plaintiff was seen by Dr. Eng in his office and was without anycomplaints or symptoms consistent with a trauma or surgically-related injury to the left phrenicnerve. At that visit, plaintiff was given permission to stop wearing the cervical collar part time.Shortly thereafter, plaintiff began to experience symptoms of a left phrenic nerve injury.Plaintiffs commenced this medical malpractice action alleging that, during the surgery, plaintiffsustained an injury to the left phrenic nerve as a result of the negligence of one or more of thedefendants. Supreme Court granted the motions of the Montgomery defendants and Dr. Kelleyfor summary judgment dismissing the complaint against them.
I disagree with the conclusion of my colleagues that the Montgomery defendants failed tosubmit an expert affidavit addressing each of the specific factual claims of negligence raised inplaintiffs' bill of particulars. The majority does not identify any " 'specific factual claim[ ] ofnegligence' " raised by plaintiffs and not addressed by the Montgomery defendants in theirmoving papers. Indeed, the only specific factual claim of negligence in plaintiffs' bill ofparticulars is that the Montgomery defendants "failed to recognize, . . . identify,isolate and prevent injury to the phrenic nerve in the course [of] operating on the plaintiff." Inspecifically addressing that claim, the Montgomery defendants' expert stated that plaintiff's leftphrenic nerve injury "could not have been caused by the cervical dis[c]ectomy performed by Drs.Eng, Montgomery and Kelley on February 9, 2007. [Plaintiff's] dis[c]ectomy began with ananterior, right-side approach through the soft tissue structures on the right tothe osteophytes located on his cervical spine. Anatomically, the left phrenic nerve islocated lateral to the left carotid artery, left jugular vein and leftscalene musculature. In order to reach the left phrenic nerve from theright-side approach used in [the] procedure, the physician would have had to piercethrough [plaintiff's] left scalene musculature along with at least one of severalvital structures[,] including the bon[e]y spine, trachea, esophagus, carotid sheath, carotid artery,and/or jugular vein. It would therefore be anatomically impossible to cause injury to theleft phrenic nerve during an anterior cervical dis[c]ectomy with right-sideapproach . . . without having seriously damaged one or more of those vitalstructures and traversing the left scalene musculature." The expert furtherconcluded, upon reviewing the medical records, that no such injury occurred. Comparing thatexpert's opinion to the specific factual claim of negligence in plaintiffs' bill of particulars, Iconclude that the Montgomery defendants sufficiently established their entitlement to summaryjudgment and shifted the burden to plaintiffs to raise a triable issue of fact (see Horth vMansur, 243 AD2d 1041, 1042-1043 [1997]), which they failed to do.[*4]
The majority also concludes that the Montgomerydefendants failed to establish that "their alleged negligence was not a proximate cause ofplaintiff's injury . . . ." Initially, inasmuch as defendants established in the firstinstance that they were not negligent in recognizing, identifying, isolating and preventing injuryto the left phrenic nerve in the course of operating on plaintiff, they did not have any suchburden. Thus, it was "beside the point to establish that" the alleged negligence was not aproximate cause of the injury (Cassano v Hagstrom, 5 NY2d 643, 645 [1959], reargdenied 6 NY2d 882 [1959]). Further, the Montgomery defendants' expert opined that itwould be "impossible" to cause injury to the left phrenic nerve without causing injury to one ormore vital structures, which undisputedly did not occur during the surgery. Therefore, even if theMontgomery defendants had the burden to establish that their "alleged negligence was not aproximate cause of plaintiff's injury," they more than adequately did so by submitting evidencethat it was "impossible" for the injury to have occurred during the right-side surgical approach(see Horth, 243 AD2d at 1042-1043).
The majority criticizes the Montgomery defendants' "failure to make a prima facie showingof entitlement to summary judgment" because Dr. Eng's operative notes indicate that anosteophyte was removed from the left side at C3-4 and screws were used to attach a plate to thecervical spine. Importantly, those " 'specific factual claims of negligence' " are neither containedin plaintiffs' bill of particulars nor raised by their medical expert in opposition to theMontgomery defendants' motion. They are raised for the first time by the majority.
Advancing its own reading and interpretation of Dr. Kelley's operative notes, the majorityfurther concludes that Dr. Kelley failed to meet his initial burden on the motion because hesubmitted evidence establishing that he "performed tasks 'on either side of the midline.' " Again,that specific allegation of negligence is first raised by the majority and is neither contained inplaintiffs' bill of particulars nor raised by their medical expert in opposition to Dr. Kelley'smotion. Inasmuch as plaintiffs' medical expert has not interpreted Dr. Kelley's operative notes inthat manner, I respectfully submit that this Court should refrain from interpreting, on its own andunaided by medical expert testimony, the operative notes from sophisticated surgical proceduresin order to find a claim of negligence independent of any specific factual claim of negligencemade by plaintiffs. Here, Dr. Kelley's operative notes contain the following reference to theperformance of tasks on either side of the midline: "The bipolar cautery was used along thelongus muscle on either side of the midline." The majority interprets the use of the term"midline" to mean the midline of the cervical spine. In the operative report, however, the term"midline" is used in reference to the longus muscle, which is situated on the anterior spine andalso has a midline. In any event, in his affidavit in support of the motion, Dr. Kelley describes theinvolvement of the midline of the longus colli muscle as follows: "The approach concluded withidentification of the midline and border of the longus colli muscles." In other words, thereference to the term "midline" in the operative report is to the midline of the longus collimuscle on the right side and not, as the majority concludes, the midline of the cervical spine.Thus, without any medical opinion from plaintiffs' expert or any specific claim of negligence intheir bill of particulars, and contrary to Dr. Kelley's unchallenged explanation, the majority takesit upon itself to interpret operative notes from a complex neurosurgical procedure in order toidentify a claim of negligence not advanced by plaintiffs. I cannot agree with that interpretation.
With respect to the conclusion of the majority that "the affidavit of Dr. Kelley did notestablish as a matter of law that the use of retractors could not have caused an injury to the leftphrenic nerve," I note that neither the term "retractor" nor any of its derivatives appear anywherein the complaint or bill of particulars. Thus, the majority inappropriately criticizes Dr. Kelley'saffidavit for failing to address a specific claim of negligence that was not raised by plaintiffs inthe first instance. The first reference to "retraction" as an alleged cause of the left phrenic nerve[*5]injury appears in the opposition affidavit of plaintiffs' expert,which states that it is the expert's "opinion that during the procedure the retraction damaged thephrenic nerve." I note that "retraction" per se of a nerve during a surgical procedure is not in andof itself a deviation from accepted surgical procedure (see Schoch v Dougherty, 122AD2d 467, 468 [1986], lv denied 69 NY2d 605 [1987]; Welsh v State of NewYork, 51 AD2d 602 [1976]). Dr. Kelley averred in his affidavit that the left phrenic nervewas not exposed or retracted during the right-side approach. In addition, according to thataffidavit, "dissection would need to continue and go beyond and behind the entirelaryngopharyngeal complex and esophagus, the left carotid artery, vagus nerve and left internaljugular vein before the left phrenic [nerve] is reached. It is not possible to retract or transect[those] structures to reach the left phrenic nerve with an anterior right side incision/approachwithout transecting, removing or severely injuring [those] structures and therefore the patient."Critically, plaintiffs' expert and the majority assume that the left phrenic nerve was retracted. Indoing so, however, they ignore the undisputed evidence that no instrument or retractor used byDr. Kelley came near the left phrenic nerve (see Cassano, 5 NY2d at 645). "In drawing orattempting to draw the inference that the nerve[was damaged by Dr. Kelley, plaintiffs' expert]was applying the fallacy of 'post hoc ergo propter hoc.' In other words, [the expert]attempted to [aver] in the form of an opinion [with respect] to a supposed fact of which [thatexpert] could have no knowledge, that is, that the [left phrenic nerve injury] was caused by [the]surgical [procedure]" (id. at 645-646). There simply is no evidentiary basis, direct orcircumstantial, that any surgical instruments were ever located near the left phrenic nerve duringthe operation, nor is there any evidentiary basis to support the assumptions of plaintiffs' expertthat the left phrenic nerve was retracted during the procedure (see Lowery v Lamaute, 40 AD3d 822 [2007], lv denied 9NY3d 810 [2007]). Moreover, setting aside the undisputed evidence that no retraction of the leftphrenic nerve occurred during the procedure, plaintiffs' expert failed to distinguish betweenretraction per se and excessive retraction, either in degree or duration, and that expert did not setforth the standard of care with respect to the left phrenic nerve retraction that the expert asserts,in a conclusory fashion, occurred (see generally DiMitri v Monsouri, 302 AD2d 420[2003]).
Inasmuch as I conclude that the court properly granted the motions of the Montgomerydefendants and Dr. Kelley, there is no remaining negligence cause of action to which the doctrineof res ipsa loquitur may be applied. I therefore find no basis upon which to consider plaintiffs'request that we search the record and grant them summary judgment on liability pursuant toCPLR 3212 (b) (see generally Abbott v Page Airways, 23 NY2d 502, 512 [1969]).
Lastly, I agree with the majority that the court did not abuse its discretion when it rejected theuntimely submission of the curriculum vitae of plaintiffs' medical expert. Present—Fahey,J.P., Carni, Sconiers, Gorski and Martoche, JJ.