Notice of Motion, Affirmation, with Exhibits 1,2
Affirmation in Opposition, with Exhibits 3
By her claim, claimant alleges that in January, 1992, she underwent surgery at
the State University of New York, Health Science Center (University Hospital),
after complaining of pain in her right side. She alleges that the surgery was
for removal of her fallopian tube and ovary, and that the surgery was performed
by Dr. Shawky Badawy. Following the surgery, claimant continued to experience
right-sided pain, and continued to see Dr. Badawy. Eventually, after
continuation of the right-sided pain, claimant underwent surgery on May 17,
1993, in which her right ovary was removed. The basis of this claim, therefore,
is that claimant experienced continued pain following her initial surgery, and
was required to undergo a second operation for removal of her right ovary, which
she alleges was to have been removed during the initial surgery.
This claim has had a long and tortured history in this Court. Without
providing all of the details, this claim was dismissed, without prejudice, by
Order of this Court dated October 13, 1999, after non-compliance with several
scheduling orders which had established deadlines for discovery and service and
filing of a note of issue.
In its Order, the Court noted that claimant could seek to reinstate the claim
by a motion served and filed within 60 days from the date of the Order of
dismissal, provided that the motion "contain such supporting documentation
and/or affidavits to establish a meritorious basis, both legal and factual, for
In this motion, claimant's counsel did not provide supporting documentation or
affidavits in support of claimant's application to reinstate the claim.
Claimant's counsel, however, did affirm that claimant intended to proceed under
the doctrine of res ipsa loquitur, and that claimant did not intend to
call any expert witnesses at trial in support of her medical malpractice claim.
In response, defendant contends that the doctrine of res ipsa loquitur is
inapplicable in the instant medical malpractice claim, and that claimant must
provide expert testimony in order to establish a prima facie case.
Therefore, defendant contends, the claim should not be reinstated.
Defendant is correct in asserting that a claimant must generally provide expert
testimony in order to establish a prima facie case of medical malpractice
(Wells v State of New York, 228 AD2d 581; Armstrong v State of New
York, 214 AD2d 812). The doctrine of res ipsa loquitur, however, has
previously been applied in medical malpractice cases where the person causing
the injury is under the control of the agency charged with negligence, and
surrounding circumstances indicate that the accident, in all likelihood, would
not have occurred if reasonable diligence was exercised (NY Jur 2d, Malpractice,
§ 307). Whether claimant will be able to succeed on her claim, without any
expert medical evidence and proceeding solely on the doctrine of res ipsa
loquitur, is a question best answered after she has had an opportunity to
present her case at trial. The Court, therefore, does agree to reinstate this
The Court is well aware that prior scheduling orders and directives from the
Court have been ignored, and that defendant has fully cooperated in attempting
to bring this matter to conclusion. The Court candidly admits, however, that it
has considered the past history of claimant's difficulties with her prior
attorney, as well as the persistence of claimant in pursuing her claim, in its
decision to reinstate this claim. The decision to reinstate this claim,
therefore, should not be taken by either party as any indication that the
claimant will succeed at trial. Without expert medical proof, claimant will
have a most difficult time in establishing liability. However, the Court
strongly believes that claimant should be given the opportunity to prove her
claim at trial.
Since claimant has advised the Court that she is proceeding solely on the
doctrine of res ipsa loquitur, it appears to the Court that all pre-trial
discovery is now complete, and that this matter is trial ready.
Therefore, it is
ORDERED, that Motion No. M-60891 is hereby GRANTED; and it is further
ORDERED, that Claim No. 90072 is hereby reinstated, and the Clerk of the Court
is directed to restore this claim to my calendar of untried claims; and it is
ORDERED, that claimant must serve and file her note of issue and certificate of
readiness by June 30, 2000, unless extended by an Order of this Court prior to
June 30, 2000, and failure to timely serve and file the note of issue and
certificate of readiness shall result in an automatic dismissal of the claim,
with prejudice, on the Court's own motion without further notice to the