Affirmation in Opposition 4
Memorandum of Law (In Opposition) 5
This is a claim for damages resulting from an operation which was performed
upon James L. Walker on April 1, 1997, at the SUNY Health Science Center in
On March 7, 1997, James L. Walker was admitted to the SUNY Health Science
Center, complaining of shortness of breath. Mr. Walker had a history of heart
problems, and after treatment with medication for several days, a pacemaker was
inserted on March 20, 1997, as part of his course of treatment.
On April 1, 1997, while still an inpatient at the hospital, Mr. Walker was
operated on by a thoracic surgeon who placed a lung drainage tube in his chest.
This was a non-indicated procedure, and when the nursing staff subsequently
noticed the error, the chest tube was removed. Mr. Walker was then discharged
from the hospital on April 4, 1997.
The discharge summary prepared by Theresa Rohr-Kirchgraber, M.D., Mr. Walker's
attending physician, indicated that the procedure performed on April 1, 1997 was
"an unfortunate, non-indicated, chest tube insertion due to miscommunication
with the CT Surgery Service." (See Discharge Summary, page 4, attached as an
exhibit to Items 1,2).
Claimant, asserting the doctrine of res ipsa loquitur, brings this
motion seeking an order of summary judgment on the issue of liability. The
State contends that the res ipsa loquitur doctrine does not apply to the
facts of this claim, and that other triable issues of fact exist.
Summary judgment is the procedural equivalent of a trial (Andre v
Pomeroy, 35 NY2d 361) and should be granted only when it has been
established that there is no triable issue (Moskowitz v Garlock, 23 AD2d
943). The role of the Court, therefore, on a motion for summary judgment is not
to resolve material issues of fact, but instead is to determine whether any such
issues exist (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395).
If such issues exist, the motion for summary judgment must be denied. Only the
existence of a material issue of fact, however, and not one based on conclusory
or irrelevant allegations, will be sufficient to defeat a motion for summary
judgment (Rotuba Extruders v Ceppos, 46 NY2d 223).
In order to invoke the doctrine of res ipsa loquitur, a claimant must
satisfy three separate conditions. The claimant must show that (1) the event
was of a kind that ordinarily does not happen in the absence of someone's
negligence, (2) the event must be caused by an agent or instrumentality within
the exclusive control of the defendant, and (3) it must not have been due to any
voluntary act or contribution on the part of the claimant. (Kambat v St.
Francis Hospital, 89 NY2d 489; Dermatossian v New York City Transit
Authority, 67 NY2d 219).
There is no dispute that the first two elements have been satisfied.
Admittedly, the procedure was "non-indicated", and unwarranted surgical
procedures are simply not performed without some type of negligence. Clearly,
Mr. Walker was in the exclusive care of SUNY Upstate Science Center at the time
this operation was performed. The State, however, contends that Mr. Walker
verbally consented to the surgical procedure on April 1, 1997, and that this
consent constitutes a voluntary act or contribution on his part which would
prevent the application of the res ipsa loquitur doctrine.
The medical records do not clearly establish that Mr. Walker gave verbal
consent to the surgical procedure in which a lung drainage tube was inserted
into his chest. There is a notation made by a member of the nursing staff that
Mr. Walker did give verbal consent. Aside from this one notation, however,
there is no written consent, nor is there any indication that the procedure was
discussed with or explained to Mr. Walker. By no stretch of the imagination can
this Court conceive of a reason why a patient would give informed consent to a
"non-indicated", unnecessary procedure. It would strain credulity to find that
Mr. Walker, confined as a patient in the hospital, would bear any responsibility
for the unnecessary surgical procedure performed on him under these
circumstances. The Court therefore finds that the mistake made by the hospital
staff in performing this procedure on Mr. Walker was not due to any voluntary
act or contribution on his part.
Accordingly, the Court finds that the doctrine of res ipsa loquitur is
applicable to the facts of this claim, and summary judgment on the issue of
liability, finding the State fully liable for injuries sustained by Mr. Walker
attributable to the surgical procedure performed on April 1, 1997, is hereby
Therefore, it is
ORDERED, that Motion No. M-61954 is GRANTED; and it is further
ORDERED, that the Clerk is directed to enter judgment in favor of the claimant
in accordance with this decision and order. A trial limited to the issue of
damages will be scheduled as soon as practicable.