New York State Court of Claims

New York State Court of Claims

WALKER v. THE STATE OF NEW YORK, #2000-009-431, Claim No. 97221, Motion No. M-61954


Claimant's motion for summary judgment on the issue of liability based on the doctrine of res ipsa loquitur was granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Nicholas V. Midey, Jr.
Claimant's attorney:
BY: Andrew T. Velonis, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Louis J. Tripoli, Esq.,
Assistant Attorney General, of Counsel.
Third-party defendant's attorney:

Signature date:
September 25, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking an order of summary judgment on the issue of liability.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit, with Exhibits 1,2

Memorandum of Law (In Support) 3

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 Syracuse.

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 granted.

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.

September 25, 2000
Syracuse, New York

Judge of the Court of Claims