Affidavit in Opposition, with Exhibit 4
Reply Affirmation 5
This claim, sounding in medical malpractice, seeks damages resulting from
certain surgical procedures performed upon claimant at the SUNY Health Science
Center in Syracuse.
Claimant alleges that on January 15, 1992, she underwent surgery at the Health
Science Center after complaining of pain in her right side. She alleges that
her right ovary and fallopian tube were to be removed in this surgery, which was
performed by Dr. Shawky Badawy. Following this surgery, claimant continued to
experience right-sided pain, and continued to be treated by Dr. Badawy.
Eventually, claimant underwent a second surgery on May 17, 1993, in which her
right ovary was in fact removed.
The basis of this claim, therefore, is that claimant 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. She seeks damages for the pain which
she continued to experience following the initial surgery, and for the pain and
suffering caused by the second surgery.
For purposes of this motion, it is important to note that this Court had
previously dismissed this claim without prejudice, by order dated October 13,
1999, due to non-compliance with several scheduling orders. The order provided
that claimant could seek reinstatement of the claim within 60 days from the date
of said order of dismissal, but only if the motion contained "such supporting
documentation and/or affidavits to establish a meritorious basis, both legal and
factual, for this claim."
By an order dated April 25, 2000, this Court reinstated this claim. Claimant's
application, however, did not contain any affidavit from a medical expert.
Claimant's counsel, in his supporting affirmation, stated that claimant would
proceed solely under the doctrine of res ipsa loquitur, and informed the
Court that claimant did not intend to call any expert witnesses at trial in
support of her medical malpractice claim.
Defendant now contends that the doctrine of res ipsa loquitur is
inapplicable in this claim, and that in order to establish a prima facie
case, claimant must provide expert testimony at trial. Since claimant does not
intend to call any experts on the issue of liability, defendant contends that
summary judgment against claimant should be granted and this claim should be
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).
Defendant contends that in order to establish a prima facie case of
medical malpractice, claimant must establish through expert testimony that a
standard of care exists, that a deviation from the standard of care occurred,
and that the deviation caused claimant's injury. Since claimant will not be
calling any expert witnesses at trial, defendant argues that she will therefore
be unable to establish a prima facie case of medical malpractice.
In most situations, expert testimony is in fact required in order to establish
a prima facie case (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 been applied by New York Courts in establishing
liability against a hospital (Fogal v Genesee Hospital, 41 AD2d 468;
Kambat v St. Francis Hospital, 89 NY2d 489). The doctrine of res ipsa
loquitur, however, is limited to "those cases where the alleged negligent
act may be readily determined by the trier of the facts based on common
knowledge" (Coursen v New York Hospital - Cornell Medical Center, 114
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, supra; Dermatossian v New York City Transit
Authority, 67 NY2d 219).
In this case, it is clear that the last two elements of the doctrine have been
satisfied. Claimant was clearly under the control of the hospital charged with
negligence, and there has been no indication that she in any way contributed to
her alleged injuries. It remains to be seen, however, as to whether claimant
will be able to establish that the event causing her injuries or pain and
suffering would not normally occur in the absence of someone's negligence.
Defendant contends that without expert testimony, claimant will be unable to
prove this element necessary to succeed under the doctrine of res ipsa
loquitur. However, claimant, proceeding solely on this doctrine, should be
given the opportunity to present her case at trial.
As this Court stated in its prior order reinstating this claim, neither party
should take this decision as any indication that the claimant will succeed at
trial. Without expert medical testimony, claimant will have a most difficult
task. However, without having heard testimony supporting her theory of res
ipsa loquitur, this Court cannot deprive claimant of her day in court.
Accordingly, it is
ORDERED, that Motion No. M-61940 is hereby DENIED; and it is further
ORDERED, that a trial limited to the issue of liability will be scheduled as
soon as reasonably practicable.