New York State Court of Claims

New York State Court of Claims

MEDYN v. STATE OF NEW YORK, #2006-018-509, Claim No. 107966, Motion No. M-71007


Synopsis


Claimants' motion to assert the doctrine of res ipsa loquitur is granted.

Case Information

UID:
2006-018-509
Claimant(s):
FRANK MEDYN and ALICE MEDYN
Claimant short name:
MEDYN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107966
Motion number(s):
M-71007
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
ROBERT E. LAHM, P.L.L.C.By: Robert E. Lahm, Esquire
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Maureen A. MacPherson, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 25, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants brings a motion for permission to amend their amended claim to assert the

doctrine of res ipsa loquitur. Defendant opposes the motion.

Claimants served a timely notice of intention and filed and served a claim. Thereafter, Claimants amended their claim as of right. The amended claim alleges that on July 7, 2001, Nader Enany, M.D., administered anesthesia to Claimant, Frank Medyn, for purposes of surgery to receive a kidney transplant. It is alleged that Dr. Enany deviated from acceptable medical practices when he failed to maintain a proper level of anesthesia for Claimant, Frank Medyn, which resulted in him awaking during revascularization of the new kidney, sitting up, and tearing his renal vein. Defendant answered the claim, a verified bill of particulars has been served and some discovery has been completed.

Claimants now seek to amend their amended claim pursuant to CPLR 3025, to assert an allegation of negligence based upon the doctrine of res ipsa loquitur. Claimants allege that they meet the criteria for application of the doctrine in that they assert that he would not have awoken and sat up in the absence of negligence, that his level of anesthesia was exclusively within the control of Defendant, and there was no act of negligence on the part of Claimant, Frank Medyn. To establish grounds for the first component of the doctrine, Claimants rely upon the in camera affidavit of their expert who opines that a patient under general anesthesia will not attempt to sit up or "buck" in the absence of negligence of the anesthesiologist, and that by the patient attempting to sit up or "bucking" there has been a deviation from the standard of care.

Defendant opposes the motion arguing that coughing or "bucking" is a common occurrence and a known risk of anesthesia. Defendant further argues that res ipsa loquitur is limited to those cases where the alleged negligence may be readily determined by the fact- finder's common knowledge. Defendant further argues that this claim of res ipsa loquitur should have been anticipated by Claimants and should not be permitted at this late juncture.

CPLR 3025(b) permits a party to amend or supplement pleadings by leave of court. The statute directs that "[l]eave shall be freely given upon such terms as may be just..." Leave should be given where the opposing party is not surprised or prejudiced by the proposed amendment and the proposed amendment appears to be meritorious (see Nastasi v Span, Inc.,

8 AD3d 1011, 1013; Paolano v Southside Hosp., 3 AD3d 524, 524).

Although permission to amend may not be necessary given that the doctrine of res ipsa loquitur is evidentiary in nature and may be raised at any time warranted by the facts, Claimants have clearly taken the more prudent approach to seek permission to amend (see States v Lourdes Hosp., 100 NY2d 208, 211; Porter v Huntington Hosp., 148 AD2d 510, 511).

The doctrine of res ipsa loquitur may be considered where (1) there is evidence that the injury producing event is of a kind that does not ordinarily occur in the absence of someone's negligence, (2) the event is caused by an agency or instrumentality within the exclusive control of the defendant and (3) it must not have occurred due to any voluntary or contributory action of the claimant (Kambat v St. Francis Hosp., 89 NY2d 489, 494). Expert testimony may be utilized to establish the first element; that is, the injury would not have occurred in the absence of negligence where such knowledge may be commonly accepted in the speciality area involved but may not be within the common knowledge of the fact-finder (States, 100 NY2d at 212-213). Here, Claimants provide that expert testimony by affidavit to support the potential meritoriousness of the proposed amendment. Claimant, Frank Medyn, was clearly under the care of Defendant at the time of his injury, and since he was under general anesthesia, there is no indication that he contributed voluntarily in any way to his injury. Although Defendant raises the issue that attempting to sit up or "bucking" while anesthetized occurs without negligence, Defendant will be able to present such evidence at trial to rebut Claimants' proof (States, 100 NY2d at 214). This does not preclude consideration of the doctrine.

Since Defendant does not argue surprise or prejudice, given the potential meritoriousness, the Court will grant Claimants' motion and permit the amendment. Claimants shall file and serve their second amended claim asserting application of the doctrine of res ipsa loquitur within 30 days of the date this Decision and Order is filed with the Clerk of the Court.


January 25, 2006
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 Robert E. Lahm, Esquire, in support, with exhibits attached

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


Affidavit of Expert, in support, for "In Camera" Review by the Court...............3


Claimants' Memorandum of Law.........................................................................4


Affirmation of Maureen A. MacPherson, Esquire, Assistant Attorney

General, in opposition...............................................................................5