| McCarthy v Northern Westchester Hosp. |
| 2016 NY Slip Op 03723 [139 AD3d 825] |
| May 11, 2016 |
| Appellate Division, Second Department |
[*1]
| Gerald McCarthy,Respondent-Appellant, v Northern Westchester Hospital et al.,Appellants-Respondents, et al., Defendants. |
Rende, Ryan & Downes, LLP, White Plains, NY (Ronald T. Koke of counsel),for appellant-respondent Northern Westchester Hospital.
Bartlett, McDonough & Monaghan, LLP, Mineola, NY (Robert G. Vizza andChristopher A. Terzian of counsel), for appellants-respondents Ezriel Kornell and KentDuffy.
Baker, Leshko, Saline & Blosser, LLP, White Plains, NY (Mitchell J. Baker ofcounsel), for respondent-appellant.
In an action, inter alia, to recover damages for medical malpractice, the defendantNorthern Westchester Hospital appeals, and the defendants Ezriel Kornell and KentDuffy separately appeal, from so much of an order of the Supreme Court, WestchesterCounty (Walker, J.), dated December 4, 2013, as denied their separate motions forsummary judgment dismissing the complaint insofar as asserted against each of them,and the plaintiff cross-appeals from so much of the same order as denied his cross motionfor summary judgment on the issue of liability on his cause of action alleging medicalmalpractice against the defendants Northern Westchester Hospital, Ezriel Kornell, andKent Duffy.
Ordered that the order is modified, on the law, by deleting the provisions thereofdenying the motion of the defendant Northern Westchester Hospital, and the separatemotion of the defendants Ezriel Kornell and Kent Duffy, for summary judgmentdismissing the complaint insofar as asserted against each of them, and substitutingtherefor a provision granting those motions; as so modified, the order is affirmed, withone bill of costs to the defendants Northern Westchester Hospital, Ezriel Kornell, andKent Duffy, appearing separately and filing separate briefs.
On January 18, 2010, the plaintiff underwent a spinal discectomy and fusion surgeryperformed by the defendants Ezriel Kornell and Kent Duffy at the defendant NorthernWestchester Hospital (hereinafter Northern Westchester, and collectively thedefendants). The surgery involved the use of a bone allograft. Twenty-nine days after thesurgery, on February 16, 2010, the plaintiff returned to the hospital with symptoms of aninfection, which was diagnosed on March 1, 2010, as an infection caused by the bacteriasalmonella hadar.
The plaintiff commenced this action against, among others, the defendants. NorthernWestchester moved, and Kornell and Duffy separately moved, for summary judgmentdismissing [*2]the complaint insofar as asserted againsteach of them, asserting that they did not depart from accepted medical practice in theirtreatment of the plaintiff, and that any alleged departures from accepted medical practicewere not the proximate cause of the plaintiff's injury. The plaintiff opposed thedefendants' motions, relying, in part, on the doctrine of res ipsa loquitur. The plaintiffalso cross-moved for summary judgment on the issue of liability on his cause of actionalleging medical malpractice against the defendants. The Supreme Court denied themotions and the cross motion.
To prevail on a motion for summary judgment in a medical malpractice action, thedefendant must "make a prima facie showing either that there was no departure fromaccepted medical practice, or that any departure was not a proximate cause of thepatient's injuries" (Matos vKhan, 119 AD3d 909, 910 [2014]). In response, the plaintiff need only raise atriable issue of fact regarding "the element or elements on which the defendant has madeits prima facie showing" (Mitchell v Grace Plaza of Great Neck, Inc., 115 AD3d 819,819 [2014]; see Stukas vStreiter, 83 AD3d 18 [2011]). Here, the defendants established their prima facieentitlement to judgment as a matter of law by submitting expert affirmations whichdemonstrated that they did not depart from the accepted standard of care in theirtreatment of the plaintiff (seeHarris v Saint Joseph's Med. Ctr., 128 AD3d 1010 [2015]; Seiden v Sonstein, 127 AD3d1158 [2015]; Matos vKhan, 119 AD3d 909 [2014]). In opposition, the plaintiff submitted an expertaffirmation which failed to raise a triable issue of fact as to whether the defendantsdeparted from the accepted standard of care in their treatment of him (see generally Macias v Ferzli,131 AD3d 673 [2015]; Michel v Long Is. Jewish Med. Ctr., 125 AD3d 945 [2015];Duvidovich v George, 122AD3d 666 [2014]; Kelley vKingsbrook Jewish Med. Ctr., 100 AD3d 600 [2012]).
In opposition to the defendants' motions, and in support of his cross motion forsummary judgment, the plaintiff relied, in part, on the doctrine of res ipsa loquitur. Torely on that doctrine, a plaintiff must show that (1) the event is of the kind that ordinarilydoes not occur in the absence of someone's negligence; (2) the instrumentality thatcaused the injury is within the defendants' exclusive control; and (3) the injury is not theresult of any voluntary action by the plaintiff (see James v Wormuth, 21 NY3d 540, 546 [2013]). "To relyon res ipsa loquitur[,] a plaintiff need not conclusively eliminate the possibility of allother causes of the injury. It is enough that the evidence supporting the three conditionsafford a rational basis for concluding that 'it is more likely than not' that the injury wascaused by defendant's negligence" (Kambat v St. Francis Hosp., 89 NY2d 489,494 [1997], quoting Restatement [Second] of Torts § 328D, Commente), and other possible causes are "so reduced that the greater probability lies atdefendant's door" (Kambat v St. Francis Hosp., 89 NY2d at 495 [internalquotation marks omitted]). The conclusion that the event must be of the kind thatordinarily does not occur in the absence of someone's negligence may be established byeveryday experience, or expert testimony (see States v Lourdes Hosp., 100 NY2d208, 212 [2003]; Kambat v St. Francis Hosp., 89 NY2d at 496). Negligence in amedical setting may be established by ordinary experience if a foreign object is left in thebody of the patient (see Kambat v St. Francis Hosp., 89 NY2d at 497), or thepatient, while anesthetized, experiences an unexplained injury in an area which is remotefrom the treatment site (seeDiGiacomo v Cabrini Med. Ctr., 21 AD3d 1052, 1054 [2005]).
In the instant case, which did not involve a foreign object or an unexplained injury inan area remote from the treatment site, the plaintiff relied upon expert testimony tosupport his allegation of res ipsa loquitur. The expert attempted to rule out sources ofinfection unrelated to the defendants, noting that there was no evidence that the plaintiff,at the time of the surgery, was infected with salmonella. However, the plaintiff's expertnoted that the defendants' expert stated that there was no evidence of a salmonellainfection present in the hospital either. The plaintiff's expert further stated that "boneallografts are (or should be), either aseptic (free of pathogenic microorganisms) or sterile(free of all microorganisms)" by irradiation with gamma rays, and it was the defendants'duty to screen allograft manufacturers, indicating that yet another party may have beenresponsible. Although the expert stated his opinion that it was more likely that theinfection came from the operating room during the surgery rather than from acontaminated bone allograft, the thrust of the expert's opinion was that, but for thesurgery, there would not have been an infection of the surgical wound, and, since theinfection should not have happened, the surgeons and the hospital where the surgery tookplace must be responsible.
[*3] However,proof of an injury alone is not proof of res ipsa loquitur (see Johnson v St. BarnabasHosp., 52 AD3d 286, 288 [2008]). In support of his cross motion for summaryjudgment on the issue of liability, the plaintiff failed to establish, prima facie, theapplicability of the doctrine of res ipsa loquitur, since he did not establish that the injurywas caused by an agency or instrumentality within the exclusive control of thedefendants (see Kruck v St. John's Episcopal Hosp., 228 AD2d 565, 566 [1996]).In addition, the plaintiff did not raise a triable issue of fact in opposition to thedefendants' motions. Accordingly, the Supreme Court should have granted thedefendants' separate motions for summary judgment dismissing the complaint insofar asasserted against them, and properly denied the plaintiff's cross motion for summaryjudgment. Balkin, J.P., Roman, Cohen and Hinds-Radix, JJ., concur.