New York State Court of Claims

New York State Court of Claims

TRUDEAU v. STATE OF NEW YORK, #2003-018-271, Claim No. 105029, Motion No. M-67070


Synopsis


Case Information

UID:
2003-018-271
Claimant(s):
STEVEN TRUDEAU
Claimant short name:
TRUDEAU
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105029
Motion number(s):
M-67070
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
COTE & LIMPERTBy: Hannah R. Jones, Esquire
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Michael R. O'Neill, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 12, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant brings a motion for partial summary judgment on the issue of liability.

Defendant opposes the motion.

Claimant has supplied the Court with the following documents in support of the motion: the verified claim, verified answer, affidavit of claimant's counsel, certified copies of claimant's medical records, deposition transcript of Howard M. Simon, M.D., and an expert affidavit from Eric Munoz, M.D. Defendant, in opposition, submits the affirmation of counsel, and uncertified medical records.

These facts are undisputed. Claimant has suffered a long history of problems with his esophagus, and as a result, has undergone several surgical procedures at different hospitals.

In July 1999, there was evidence that claimant suffered from an obstruction in the anastomotic area. On July 10, 1999, claimant was admitted to SUNY Upstate Medical Center, University Hospital (hereinafter University Hospital) as a patient for an esophagoscopy, revision of the cervical esophagogastric anastomosis, and the insertion of a J-tube. The esophageal operation was performed first by Dr. Anthony L. Picone, and then the J-tube insertion was performed by Dr. Howard M. Simon. Claimant was under anesthesia for the surgeries. After the surgeries, claimant was discharged home on July 16, 1999.

The staples from the insertion of the J-tube were removed on July 28; and thereafter, claimant began to develop an increasing patch of redness around the site of the abdominal incision. Claimant went to the emergency room on August 1, 1999, and was diagnosed and treated for an abdominal incisional abscess which was draining. As a result of the continued drainage, a deep wound infection was suspected, and a CT scan was performed on September 2, 1999. The CT scan revealed the presence of a foreign body in the abdomen. Surgery was performed on September 14, 1999, and a surgical sponge was removed. Claimant was discharged from the hospital on September 15, 1999.

The affidavit from claimant's expert, Dr. Munoz, indicates that this sponge was left in claimant during his July 10, 1999 abdominal surgery, and that this type of surgical sponge, or "laparotomy pad," is not placed within the patient during the course of surgery with the intent that it remain there (Munoz affidavit ¶¶ 32, 33, 34). Leaving the sponge in claimant was a deviation from the standard of care (Munoz affidavit ¶¶ 37, 38, 39). Dr. Munoz attributes claimant's infection to the surgical sponge (Munoz affidavit ¶ 35).

Dr. Simon, the doctor who performed the J-tube insertion, acknowledged that the sponge was left in claimant during the surgery that he performed, and that it was not left in claimant intentionally, but rather was the result of failing to properly account for all the sponges prior to closing the incision (deposition transcript of Dr. Simon pages10, 11 and 15). Dr. Simon also acknowledged that failing to remove a sponge during surgery was a deviation from the standard of care (deposition transcript of Dr. Simon pages11 through13). The infection claimant suffered was attributable to the sponge (deposition transcript of Dr. Simon pages 41-42).

Claimant has met his burden of establishing that he is entitled to partial summary judgment as a matter of law (Winegrad v New York University Med. Ctr., 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557, 562; Cianfrocco v St. Luke's Memorial Hosp. Ctr., 265 AD2d 849, 850). Defendant has failed to come forward with proof raising an issue of fact.

Based upon the foregoing, claimant's motion for partial summary judgment on the issue of liability is GRANTED, defendant is 100% liable for the injuries claimant has suffered attributable to its failure to remove a laparotomy pad at the conclusion of claimant's July 10, 1999 surgery for insertion of a J-tube performed by Dr. Howard M. Simon. A conference will be held with the Court so that a trial on damages may be scheduled. The extent of claimant's injuries and pain and suffering attributable to the defendant's negligence will appropriately be considered at the time of the trial on damages. LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.


December 12, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims



The Court has considered the following documents in deciding this motion:


Notice of Motion..................................................................................................1


Affidavit of Hannah R. Jones, Esquire, in support with exhibits attached

thereto........................................................................................................2


Affirmation of Michael R. O'Neill, Esquire, in opposition, with exhibits

attached thereto..........................................................................................3