STATES v. Riverside Associates in Anesthesia P.C. et al., Appellants.

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Supreme Court, Appellate Division, Third Department, New York.

Kathleen STATES et al., Respondents, v. LOURDES HOSPITAL, a Daughter of Charity Hospital, et al., Defendants, Riverside Associates in Anesthesia P.C. et al., Appellants.

Decided: August 22, 2002

Before:  CREW III, J.P., PETERS, MUGGLIN, ROSE and LAHTINEN, JJ. Levene, Gouldin & Thompson L.L.P., Binghamton (David M. Gouldin of counsel), for appellants. Cherundolo, Bottar & Leone P.C., Syracuse (Michael J. Hutter of Powers & Santola L.L.P., Albany, of counsel), for respondents.

Appeal from an order of the Supreme Court (Relihan Jr., J.), entered June 13, 2001 in Broome County, which denied a motion by defendants Riverside Associates in Anesthesia P.C. and Kenneth Mintz for summary judgment dismissing the complaint against them.

 Plaintiff Kathleen States (hereinafter plaintiff) was operated on for the removal of an ovarian cyst.   The operation was successful and uneventful except for her complaint of pain when the IV tube was inserted in the back of her right hand prior to the surgery.   Postsurgery, she awoke complaining of extreme pain in her right hand, arm, shoulder and side.   Her four medical experts assert that she suffered an injury which they have diagnosed as a right thoracic outlet syndrome (a brachial plexus traction injury) and a reflex sympathetic dystrophy which they opine occurred during the course of her surgery.   As a result, plaintiff, and her husband, derivatively, brought this medical malpractice action against, among others, defendant Kenneth Mintz, the anesthesiologist, and defendant Riverside Associates in Anesthesia P.C. (hereinafter collectively referred to as defendants).   Defendants moved for summary judgment, noting that plaintiffs concede that there is no evidence of any unusual event in the operating room, much less a negligent act on Mintz's part, and they argue that the doctrine of res ipsa loqutur is unavailable to plaintiffs.   Supreme Court agreed with plaintiffs that the doctrine is available to them and denied defendants' motion for summary judgment.   Defendants appeal.

Submission of a case on the theory of res ipsa loquitur is warranted only when the plaintiff can establish three elements:  “(1) the event must be a kind which ordinarily does not occur in the absence of someone's negligence;  (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant;  (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff” (Ebanks v. New York City Tr. Auth., 70 N.Y.2d 621, 623, 518 N.Y.S.2d 776, 512 N.E.2d 297, quoting Prosser and Keeton, Torts § 39, at 218 [3d ed] ).

The doctrine is clearly available to a plaintiff where a foreign body has been left at the site of the operation (see, Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 496, 655 N.Y.S.2d 844, 678 N.E.2d 456).  “Widespread consensus exists, however, that a narrow category of factually simple medical malpractice cases requires no expert to enable the jury reasonably to conclude that the accident would not happen without negligence” (id., at 496, 655 N.Y.S.2d 844, 678 N.E.2d 456).   As the case, sub judice, does not fall into this category, we are presented with the question specifically unresolved by Kambat, namely, “whether res ipsa loquitur is applicable in medical malpractice cases in which the jury is incapable of determining whether the first res ipsa loquitur condition has been met without the aid of expert testimony” (id., at 497, 655 N.Y.S.2d 844, 678 N.E.2d 456).

Plaintiffs rely on cases from other Departments which hold that the doctrine of res ipsa loquitur is particularly appropriate for the use of a plaintiff who, while anesthetized, suffers an injury to some portion of the body remote from the site of the operation.   Analysis of each of these cases, however, reveals that they fall within the category where any layperson would be competent to pass judgment without need of an expert opinion (see, Babits v. Vassar Bros. Hosp., 287 A.D.2d 670, 732 N.Y.S.2d 46 [infliction of a third degree burn on the rear area of the plaintiff's right upper thigh during orthoscopic knee surgery];  Ceresa v. Karakousis, 210 A.D.2d 884, 620 N.Y.S.2d 646 [compression injury to left shoulder and arm due to positioning during nine hour operation];  Hill v. Highland Hosp., 142 A.D.2d 955, 530 N.Y.S.2d 381 [second and third degree burns suffered during surgery to remove blockage in an artery];  Mack v. Lydia E. Hall Hosp., 121 A.D.2d 431, 503 N.Y.S.2d 131 [grounding pad used with electrocoagulator placed directly against the plaintiff's thigh causing a one-half inch deep third degree burn];  Fogal v. Genesee Hosp., 41 A.D.2d 468, 345 N.Y.S.2d 989 [frostbite and subsequent amputation of part of both feet due to malfunction of cooling blanket during operation] ).

Moreover, binding precedent 1 in this Department mandates a reversal of Supreme Court's scholarly decision.   Defendants' expert, after reviewing the hospital and other related records, opines that Mintz did not depart from accepted medical standards and, moreover, based on the expert's examination of plaintiff, he found no evidence of reflex sympathetic dystrophy, thoracic outlet syndrome or brachial plexus injury.   As we have previously recognized, “[t]he conflicting expert assessments of how and when the injury occurred are persuasive evidence that plaintiff's injury is not the type of ‘ “medical and surgical error on which any layman is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care” ’ ” (Leone v. United Health Servs., 282 A.D.2d 860, 861, 723 N.Y.S.2d 260, quoting Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 496, 655 N.Y.S.2d 844, 678 N.E.2d 456, supra, quoting Prosser and Keeton, Torts § 40, at 256-257 [5th ed];  see, Gushlaw v. Roll, 290 A.D.2d 667, 735 N.Y.S.2d 667).   Moreover, in Schoch v. Dougherty, 122 A.D.2d 467, 504 N.Y.S.2d 855, lv. denied 69 N.Y.2d 605, 513 N.Y.S.2d 1026, 505 N.E.2d 953, this Court affirmed the trial court's refusal to charge res ipsa loquitur.   The basis for our affirmance was that the question of whether the injury suffered by the plaintiff was the result of a deviation from accepted medical practice was an issue not within the competence of the jury to evaluate under the facts of that case.

 The purpose behind the doctrine of res ipsa loquitur, if its three elements have been established, is to permit the jury to infer negligent conduct on the defendant's part (see, Dolan v. Jaeger, 285 A.D.2d 844, 846, 727 N.Y.S.2d 784).   Such inference is permitted, typically, because “the jury can reasonably draw upon past experience common to the community for the conclusion that the adverse event generally would not occur absent negligent conduct” (Kambat v. St. Francis Hosp., supra, at 495, 655 N.Y.S.2d 844, 678 N.E.2d 456).   Consistent with our precedent, we hold that opinion evidence that negligence in fact occurred is unavailable to raise an inference of negligence where the jury would be unable, based on its collective common knowledge, to determine that the event would ordinarily not occur absent someone's negligence.

We respectfully dissent.   The Court of Appeals has referred to permitting expert testimony on the first element of res ipsa loquitur in medical malpractice cases in order to establish what is common knowledge in that specialized field as the “modern trend” (Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 495, 655 N.Y.S.2d 844, 678 N.E.2d 456 n).  Moreover, in Quigley v. Jabbur, 124 A.D.2d 398, 507 N.Y.S.2d 497, this Court has previously indicated its willingness to adopt the modern trend:  “ since * * * the negligence alleged here encompasses matters not within the ordinary knowledge and experience of lay persons, plaintiffs could not proceed under the doctrine of res ipsa loquitur without first submitting expert medical opinion regarding the level of medical care required ” (id., at 400, 507 N.Y.S.2d 497 [emphasis supplied] ).   The approach suggested in Quigley, which is consistent with the Restatement (Second) of Torts § 328 D, has been accepted in the Second Department (see, Hawkins v. Brooklyn-Caledonian Hosp., 239 A.D.2d 549, 658 N.Y.S.2d 375, lv. dismissed 91 N.Y.2d 887, 668 N.Y.S.2d 564, 691 N.E.2d 636) and the Fourth Department (see, Santangelo v. Crouse Med. Group, 209 A.D.2d 942, 619 N.Y.S.2d 981, appeal dismissed 85 N.Y.2d 905, 627 N.Y.S.2d 327, 650 N.E.2d 1329), and reflects the opinion of the growing majority of jurisdictions that have addressed the issue (see generally, Seavers v. Methodist Med. Ctr., 9 S.W.3d 86, 93-94 [Tenn] [setting forth the numerous jurisdictions that have adopted such an approach] ).

This Court's decisions in Schoch v. Dougherty, 122 A.D.2d 467, 504 N.Y.S.2d 855, lv. denied 69 N.Y.2d 605, 513 N.Y.S.2d 1026, 505 N.E.2d 953 and Leone v. United Health Servs., 282 A.D.2d 860, 723 N.Y.S.2d 260 did not reject the standard articulated in Quigley. Moreover, Schoch and Leone are distinguishable from the current case because, inter alia, both cases involved purported malpractice at the surgical site rather than, as here, a situation where a patient awakens from general anesthesia to discover a physical malady remote from the surgical site (see, Babits v. Vassar Bros. Hosp., 287 A.D.2d 670, 671, 732 N.Y.S.2d 46;  Fogal v. Genesee Hosp., 41 A.D.2d 468, 475, 345 N.Y.S.2d 989;  Matlick v. Long Is. Jewish Hosp., 25 A.D.2d 538, 267 N.Y.S.2d 631;  Annotation, Medical malpractice:  res ipsa loquitur in negligent anesthesia cases, 49 A.L.R.4th 63, § 24).   The discussion of the role of “common knowledge” in Schoch and Leone should not be interpreted as defining the entire field for the first element of res ipsa loquitur but, rather, as addressing the limited situations when, under res ipsa loquitur, a medical malpractice case can go to a jury with no supporting expert evidence (see, Kambat v. St. Francis Hosp., supra, at 496, 655 N.Y.S.2d 844, 678 N.E.2d 456 [acknowledging a “narrow category of factually simple medical malpractice cases requir[ing] no expert”] ). While “common knowledge” carves an exception to the necessity of expert testimony in some malpractice cases, it does not delineate the absolute boundaries of res ipsa loquitur (see, Restatement [Second] of Torts § 328 D, comment d).  In a case factually analogous to the one at bar, the Supreme Court of New Mexico, relying in part upon Plumb v. Richmond Light & R.R. Co., 233 N.Y. 285, 135 N.E. 504, explained:

[T]he central issue is not whether common knowledge alone is sufficient to establish an inference of negligence.   Rather, the issue is whether there is a factual predicate sufficient to support an inference that the injury was caused by the failure of the party in control to exercise due care.   The requisite probability of negligence may exist independently of the common knowledge of the jurors (Mireles v. Broderick, 117 N.M. 445, 448, 872 P.2d 863, 866).

Here, plaintiffs produced experts who opined that it is common knowledge within the medical field that the type of injury implicated does not occur in the absence of negligence.   We agree with Supreme Court that such evidence satisfied the first element of the doctrine of res ipsa loquitur.   Plaintiffs have submitted sufficient evidence of the remaining elements to invoke the doctrine. Since plaintiffs are entitled to rely upon the doctrine of res ipsa loquitur, they have established a prima facie case and, thus, Supreme Court's order denying the motion of defendants Riverside Associates in Anesthesia P.C. and Kenneth Mintz for summary judgment should be affirmed (see, Morris v. Lenox Hill Hosp., 232 A.D.2d 184, 647 N.Y.S.2d 753, affd. 90 N.Y.2d 953, 665 N.Y.S.2d 399, 688 N.E.2d 255).   Moreover, in our opinion, review of the affidavits submitted by plaintiffs' experts reveals sufficient factual issues to defeat the motion for summary judgment even without reliance upon the doctrine of res ipsa loquitur (see, Babits v. Vassar Bros. Hosp., 287 A.D.2d 670, 732 N.Y.S.2d 46, supra;  Fogal v. Genesee Hosp., 41 A.D.2d 468, 345 N.Y.S.2d 989, supra ).

ORDERED that the order is reversed, on the law, with costs, motion granted, summary judgment awarded to defendants Riverside Associates in Anesthesia P.C. and Kenneth Mintz, and complaint dismissed against them.

FOOTNOTES

1.   Unlike the dissent, we do not interpret the dictum in Quigley v. Jabbur, 124 A.D.2d 398, 400, 507 N.Y.S.2d 497 as indicating this Court's “willingness to adopt the modern trend”.   In that case, the central holding was that Supreme Court abused its discretion in refusing to dismiss a complaint for failure to comply with discovery demands where the plaintiff submitted no doctor's affidavit demonstrating that the medical malpractice claim had merit.   We specifically held that the plaintiff's reliance on res ipsa loquitur as obviating the need for such an affidavit was unavailing.

MUGGLIN, J.

CREW III, J.P., and ROSE, J., concur.

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