It is hereby ordered that the order and judgment so appealed from is reversed on the law without 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, agents and/or employees of St. Joseph's Hospital, is reinstated.
Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedly sustained 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 defendants David Eng, M.D. and Craig Montgomery, M.D. (Montgomery defendants) and the motion of defendant Richard Kelley, M.D., seeking summary judgment 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 of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" (Williams v Sahay, 12 A.D.3d 366, 368 ; see Humphrey v Gardner, 81 A.D.3d 1257, 1258 ). In support of their motion, the Montgomery defendants submitted an expert's affidavit that "fail[ed] to address each of the specific factual claims of negligence raised in plaintiff's bill of particulars, [and thus] that affidavit is insufficient to support a motion for summary judgment as a matter of law" (Larsen v Banwar, 70 A.D.3d 1337, 1338 ).
We also conclude that Dr. Kelley failed to meet his initial burden on his motion for summary judgment dismissing the complaint against him. Dr. Kelley submitted his own affidavit in support of the motion and contended therein that he was entitled to summary judgment because he complied with the accepted standard of care and did not cause an injury to plaintiff's left phrenic nerve. According to Dr. Kelley, his instruments remained on the right side of plaintiff's spine 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 also indicate that Dr. Kelley used retractors to hold back structures in plaintiff's neck, but the affidavit of Dr. Kelley did not establish as a matter of law that the use of retractors could not have caused an injury to the left phrenic nerve. Because Dr. Kelley failed to make a prima facie showing of entitlement to summary judgment, we need not consider the adequacy of plaintiff's opposing papers (see generally Winegrad, 64 NY2d at 853).
We decline the request of plaintiffs to search the record and grant summary judgment on liability with respect to the cause of action against the Montgomery defendants and Dr. Kelley on the theory of res ipsa loquitur pursuant to CPLR 3212 (b). "[O]nly in the rarest of res ipsa loquitur cases may . . . plaintiff[s] win summary judgment . . . That would happen
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 that Supreme Court erred in granting the motion of defendants David Eng, M.D. and Craig Montgomery, M.D. (collectively, Montgomery defendants) and the motion of defendant Richard Kelley, M.D. for summary judgment dismissing the complaint against them. I therefore would affirm the order and judgment.
On February 9, 2007, Joseph F. Gagnon, Jr. (plaintiff) underwent an anterior cervical discectomy at the C3-4 and C4-5 levels. The surgical approach and incision were made anteriorly on the right side of plaintiff's neck by Dr. Kelley, a board certified otolaryngologist. After performing the surgical approach, Dr. Kelley was excused from the operating room. The discectomy was then performed by Dr. Eng, a board certified neurosurgeon, who was assisted by Dr. Montgomery, also a board certified neurosurgeon. Plaintiff was discharged from the hospital later that day and instructed to wear a cervical collar. There is no dispute that, upon discharge from the hospital following the surgery, plaintiff did not experience any symptoms or present any complaints 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 any complaints or symptoms consistent with a trauma or surgically-related injury to the left phrenic nerve. 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
I disagree with the conclusion of my colleagues that the Montgomery defendants failed to submit an expert affidavit addressing each of the specific factual claims of negligence raised in plaintiffs' bill of particulars. The majority does not identify any "`specific factual claim of negligence'" raised by plaintiffs and not addressed by the Montgomery defendants in their moving papers. Indeed, the only specific factual claim of negligence in plaintiffs' bill of particulars 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." In specifically addressing that claim, the Montgomery defendants' expert stated that plaintiff's left phrenic 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 an anterior,
The majority also concludes that the Montgomery defendants failed to establish that "their alleged negligence was not a proximate cause of plaintiff's injury . . . ." Initially, inasmuch
The majority criticizes the Montgomery defendants' "failure to make a prima facie showing of entitlement to summary judgment" because Dr. Eng's operative notes indicate that an osteophyte was removed from the left side at C3-4 and screws were used to attach a plate to the cervical spine. Importantly, those "`specific factual claims of negligence'" are neither contained in plaintiffs' bill of particulars nor raised by their medical expert in opposition to the Montgomery 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 majority further concludes that Dr. Kelley failed to meet his initial burden on the motion because he submitted 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 in plaintiffs' bill of particulars nor raised by their medical expert in opposition to Dr. Kelley's motion. Inasmuch as plaintiffs' medical expert has not interpreted Dr. Kelley's operative notes in that manner, I respectfully submit that this Court should refrain from interpreting, on its own and unaided by medical expert testimony, the operative notes from sophisticated surgical procedures in order to find a claim of negligence independent of any specific factual claim of negligence made by plaintiffs. Here, Dr. Kelley's operative notes contain the following reference to the performance of tasks on either side of the midline: "The bipolar cautery was used along the longus muscle on either side of the midline." The majority interprets the use of the term "midline" to mean the midline of the cervical spine.
With respect to the conclusion of the majority that "the affidavit of Dr. Kelley did not establish as a matter of law that the use of retractors could not have caused an injury to the left phrenic nerve," I note that neither the term "retractor" nor any of its derivatives appear anywhere in the complaint or bill of particulars. Thus, the majority inappropriately criticizes Dr. Kelley's affidavit for failing to address a specific claim of negligence that was not raised by plaintiffs in the first instance. The first reference to "retraction" as an alleged cause of the left phrenic nerve 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 the phrenic nerve." I note that "retraction" per se of a nerve during a surgical procedure is not in and of itself a deviation from accepted surgical procedure (see Schoch v Dougherty, 122 A.D.2d 467, 468 , lv denied 69 N.Y.2d 605 ; Welsh v State of New York, 51 A.D.2d 602 ). Dr. Kelley averred in his affidavit that the left phrenic nerve was not exposed or retracted during the right-side approach. In addition, according to that affidavit, "dissection would need to continue and go beyond and behind the entire laryngopharyngeal complex and esophagus, the left carotid artery, vagus nerve and left internal jugular 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/approach without 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. In doing so, however, they ignore the undisputed evidence that no instrument or retractor used by Dr. Kelley came near the left phrenic
Inasmuch as I conclude that the court properly granted the motions of the Montgomery defendants and Dr. Kelley, there is no remaining negligence cause of action to which the doctrine of 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 to CPLR 3212 (b) (see generally Abbott v Page Airways, 23 N.Y.2d 502, 512 ).
Lastly, I agree with the majority that the court did not abuse its discretion when it rejected the untimely submission of the curriculum vitae of plaintiffs' medical expert.