Claimant seeks to recover damages against the State for alleged medical
malpractice and negligence. The claimant herein, Cheryl Walker, alleges medical
malpractice and negligent medical care occurring in a surgical procedure
performed at the State University of New York Health Science Center at Syracuse,
University Hospital, on January 15, 1992. The trial of this claim was ordered
bifurcated, and this decision will therefore address solely the issue of
Claimant had been treated for many years for various gynecological problems by
Dr. Shawky Badawy, a gynecologist and obstetrician at University Hospital. In
late 1991, at the age of 35, claimant began experiencing acute abdominal pain on
the right side of her lower abdomen, and was admitted to University Hospital. A
sonogram was performed which indicated the presence of an abdominal mass.
Treatment with medication was unsuccessful, and claimant was re-admitted to the
hospital on January 9, 1992. At that time, Dr. Badawy reviewed the sonogram
results with claimant and he recommended exploratory surgery in order to first
determine the nature of the abdominal mass revealed by the sonogram and then to
On January 14, 1992, claimant signed a "consent to operate" form (see
Defendant's Exhibit Z), agreeing to a procedure that would involve "exam
under anesthesia, exploratory laparotomy with removal of adnexal mass and
possible removal of right ovary and fallopian tube". The following day,
claimant underwent the exploratory laparotomy at University Hospital. The
surgery was performed by Dr. Badawy, with Dr. Pamela Clancy, a resident
physician, assisting. According to the testimony of Dr. Badawy, as well as his
post-operative notes (see Claimant's Exhibit 5), the surgery was complex due to
claimant's distorted anatomy. During the surgery, the abdominal mass was
identified and removed. A portion of this mass, containing old blood, ruptured
during the surgery. In addition to the removal of the abdominal mass, the right
fallopian tube was removed, as well as thick, firm tissue near the end of the
mass. During the operation, Dr. Badawy opined that this firm tissue might have
been part of the right ovary, or possibly an accessory ovary. Dr. Badawy
testified, however, that the right ovary was not removed. He testified that in
order to do so, the infundibulopelvic ligament, the ovarian ligament, and the
ureter would all have had to have been identified, with appropriate incisions
made, and that these steps did not occur during claimant's surgery.
Following the surgery, and for several months thereafter, claimant continued to
experience right-sided pain. She met with Dr. Badawy on February 20, 1992, at
which time the surgical procedure was reviewed with her, and she testified that
she met with Dr. Badawy at least three times thereafter because of the continued
pain in her right side. Ultimately, and because claimant continued to
experience pain, claimant went to another obstetrician, Dr. Howard Weinstein, in
April, 1993. In May, 1993, Dr. Weinstein performed exploratory surgery in which
he found claimant's right ovary encompassed by scar tissue. He testified that
it was therefore necessary to take the right ovary in order to remove all of the
scar tissue, which he believed was a contributing cause of claimant's pain.
It is claimant's contention that she was required to undergo two separate
surgical procedures for the removal of her right ovary, and that the second
procedure was necessary only because Dr. Badawy failed to properly identify and
remove the right ovary during the first surgery. Claimant contends that both
Dr. Badawy and Dr. Clancy advised her that the right ovary was to be removed
during the first surgery, and that, in their consultations with her following
the surgery, advised her that the right ovary was in fact removed. She
therefore seeks damages for the pain and suffering which she experienced
following the first surgery (January 15, 1992) up to that point in time when she
underwent her second surgery (May 17, 1993), as well as for the pain that she
endured as a direct result of having to undergo the second surgery.
At trial, claimant testified on her own behalf. Additionally, the three
physicians who treated claimant during this time period (Dr. Badawy, Dr. Clancy
and Dr. Weinstein) were also called as witnesses. No expert medical testimony,
however, was introduced by claimant.
In order to establish a claim based upon medical malpractice it is axiomatic
that a claimant establish that a standard of care exists, that a deviation from
that standard of care occurred, and that the deviation caused claimant's injury.
A claimant must therefore establish that the medical professional involved
either did not possess or did not use reasonable care or his/her best judgment
in applying the knowledge and skill ordinarily possessed by practitioners in the
Hale v State of New York
, 53 AD2d 1025, lv denied
40 NY2d 804;
Pike v Honsinger
, 155 NY 201). The proof required in such a case
includes the accepted medical standards of care in the community in which the
medical professional practices (Toth v Community Hosp. at Glen Cove
NY2d 255) and a deviation or departure from those standards (Kletnieks v
Brookhaven Mem. Assoc.
, 53 AD2d 169, 176). The physician is not required to
achieve success in every case and cannot be held liable for mere errors of
professional judgment (Pike v Honsinger
; DuBois v
, 130 NY 325). The "line between medical judgment and deviation from
good medical practice is not easy to draw" (Schrempf v State of New York
66 NY2d 289, 295, quoting Topel v Long Is. Jewish Med. Center
, 55 NY2d
Generally speaking, in order to establish a
case of medical malpractice, expert testimony is required
(Wells v State of New York
, 228 AD2d 581; Armstrong v State of New
, 214 AD2d 812). In this case, and as mentioned above, claimant,
however, is relying upon the doctrine of res ipsa loquitur
in her attempt
to establish her claim of medical malpractice. This doctrine, although it has
been applied in medical malpractice actions (see, Fogal v Genesee
, 41 AD2d 468; Kambat v St. Francis Hosp.
, 89 NY2d 489), is
limited to "those cases where the alleged negligent act may be readily
determined by the trier of the facts based upon common knowledge" (Coursen v
New York Hospital-Cornell Med. Center
, 114 AD2d 254). In this case,
claimant relies on her testimony, as well as the medical records which were
introduced into evidence, in order to establish her claim of medical
malpractice. She contends that the issue of malpractice can be determined
without the benefit of expert medical testimony.
Claimant testified that prior to the surgery, she was advised by Dr. Badawy
that her right ovary and fallopian tube were definitely to be removed during the
surgery. Furthermore, she testified that both Dr. Badawy and Dr. Clancy,
following the surgery, told her that her right ovary had been removed during the
surgical procedure. When she continued to have right-sided pain, she testified
that Dr. Badawy explained to her that this pain was caused by scar tissue
resulting from the surgery. Claimant contends that the medical records,
including Dr. Badawy's operative report and discharge summary, continually refer
to the medical procedure performed as a right
, confirming her position that Dr. Badawy believed he had removed the right
ovary during the surgery, and had so advised claimant.
The Court notes that the operating room record, dated January 15, 1992
(Claimant's Exhibit 3) describes the procedure performed as "lysis of
adhesions, rt salpingoopherectomy"; the operative notes of Dr. Badawy dated
January 15, 1992 describe the operation as "Exploratory laparotomy, right
salpingo-oopherectomy, lysis of adhesions" (Claimant's Exhibit 5); and the
discharge order from University Hospital, dated January 20, 1992 (Claimant's
Exhibit 4) describes the surgical procedures performed as "right
salpingo-oopherectomy" and "lysis of adhesions".
Based on these records, as well as her testimony, claimant contends that she
has established that Dr. Badawy negligently failed to remove the her right ovary
during the surgical procedure of January 15, 1992.
The theory of
res ipsa loquitur
applies where a claimant establishes that (1) the event
does not usually occur in the absence of negligence, (2) the instrumentality
that caused the event was within the exclusive control of the defendant, and (3)
claimant did not contribute to the cause of the accident (States v Lourdes
, 100 NY2d 208; Dermatossian v New York City Tr. Auth.
, 67 NY2d
219). As this Court had previously noted in its prior order denying the State
there is no real dispute that
the last two elements of the doctrine have been satisfied. It is claimant's
position that the event (failure to remove her right ovary) was one that would
ordinarily not happen without negligence on the part of the physician.
The doctrine of
res ipsa loquitur
, however, merely gives rise to a permissible inference
of negligence which, if raised, must then be refuted by defendant.
In this case, both Dr. Badawy and Dr. Clancy testified at trial, and
specifically denied having advised claimant that her right ovary had been
removed during surgery.
Furthermore, Dr. Badawy testified that claimant's right ovary was normal at the
time of surgery, and that in order to remove it he would have had to perform
certain additional procedures during the surgery, which were not done.
Additionally, there is no reference in Dr. Badawy's operative notes, or in his
notes from his visit with claimant on February 20, 1992, indicating that he
advised her that the right ovary had been removed.
Similarly, Dr. Clancy, in her testimony, denied that she ever told claimant,
prior to surgery, that the right ovary was definitely going to be removed. She
testified that she advised claimant that it might be necessary to remove the
ovary, depending on what was revealed during the exploratory surgery. Following
the surgery, Dr. Clancy testified that she told claimant that the abdominal mass
had been removed, that part of her ovary
(emphasis added) have been removed, but that they had to await
pathology reports in order to be certain.
Finally, Dr. Clancy also testified that even though reference was made in the
operative report to the shorthand "rso" (right salpingo-oophorectomy), such
reference had only been made due to the fact that some ovarian tissue might have
been removed during surgery.
After a careful review of all the testimony, and the medical records
introduced, this Court finds that claimant has not sustained her burden in
establishing medical malpractice through the doctrine of
res ipsa loquitur
. Claimant's contention that her right ovary was
definitively to be removed during surgery, and that Dr. Badawy negligently
failed to do so, has been refuted by the direct testimony of both Dr. Badawy and
Dr. Clancy, and the medical records fail to clearly establish that the right
ovary was either intended or described as removed during the surgery.
Other than the testimony of claimant, there is no evidence that Dr. Badawy
advised claimant in his postoperative consultation with her that her ovary had
Regardless of what was told to claimant by her physicians, however, the real
issue in this action is whether Dr. Badawy committed medical malpractice by
failing to remove her right ovary during the surgery of January 15, 1992.
In other words, did Dr. Badawy negligently perform the surgery when he removed
the fallopian tube and mass, but without removing her right ovary, thereby
necessitating the second surgical procedure ultimately performed by Dr.
Clearly, this issue cannot be resolved without expert medical testimony. Such
testimony is required in order to establish that there was a deviation from
proper and approved medical practices leading specifically to the continued pain
and suffering suffered by claimant. (See,
Hale v State of New York
, 53 AD2d 1025, supra
). Without expert
medical testimony, claimant has not established that the failure to remove her
right ovary by Dr. Badawy constituted medical malpractice. Accordingly, the
Court finds that claimant has not established by a preponderance of the evidence
any claim of medical malpractice and her claim must therefore be dismissed.
All motions at trial not heretofore ruled upon are denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.