New York State Court of Claims

New York State Court of Claims

WALKER v. THE STATE OF NEW YORK, #2003-009-120, Claim No. 90072


This claim alleging medical malpractice, relying upon the doctrine of res ipsa loquitur was dismissed.

Case Information

CHERYL WALKER The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
BY: Joseph S. Cote, III, Esq., and
Hannah R. Jones, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 25, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

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 liability.

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 remove it.

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.[1]

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 field (
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, 22 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, supra; DuBois v Decker, 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 682, 684).
Generally speaking, in order to establish a
prima facie case of medical malpractice, expert testimony is required (Wells v State of New York, 228 AD2d 581; Armstrong v State of New York, 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 Hospital, 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 salpingo-oophorectomy[2]
, 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 Hosp., 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 summary judgment[3] 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
may (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 been removed.

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. Weinstein.

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.


September 25, 2003
Syracuse, New York

Judge of the Court of Claims

[1] By an order dated October 13, 1999, this claim was dismissed by this Court, without prejudice, for failure to comply with several prior scheduling orders. Subsequently, by an order dated April 25, 2000, the claim was reinstated. In his affirmation in support of the application to reinstate the claim, claimant's counsel advised the Court that claimant was proceeding solely under the doctrine of res ipsa loquitur, and that no expert medical testimony would be presented at trial. By a subsequent order, dated September 26, 2000, this Court denied defendant's motion seeking an order of summary judgment dismissing the claim.
[2] Salpingo-oophorectomy is defined as a surgical excision of a fallopian tube and ovary (emphasis added). (Merriam Webster's Medical Dictionary 632 [1993]).
[3] See Decision and Order, Motion No. M-61940, dated September 26, 2000.