New York State Court of Claims

New York State Court of Claims
LIEBER v. THE STATE OF NEW YORK, # 2010-009-011, Claim No. 112166, Motion No. M-77212


Claimants' motion for summary judgment in this medical malpractice claim was denied, but their motion for dismissal of the affirmative defenses in defendant's Verified Answer was granted.

Case information

UID: 2010-009-011
Claimant(s): DARLEEN LIEBER and ROBERT LIEBER, Individually and as Parents and Natural Guardians of JORDAN LIEBER, an Infant over the age of Fourteen Years
Claimant short name: LIEBER
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112166
Motion number(s): M-77212
Cross-motion number(s):
Claimant's attorney: RIEHLMAN, SHAFER & SHAFER
BY: Jane G. Kuppermann, Esq.,
Of Counsel.
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General
BY: Senta B. Siuda, Esq.,
Assistant Attorney General
Of Counsel.
Third-party defendant's attorney:
Signature date: April 1, 2010
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


Claimants have brought this motion seeking an order granting them summary judgment on the issue of liability in this medical malpractice action. Claimants also seek an order dismissing the seven affirmative defenses asserted by the State in its Verified Answer to this Amended Claim.

The following papers were considered by the Court in connection with this motion:

Notice of Motion, Affidavit of Jane G. Kuppermann, Esq., Affidavit of Jay S. Copeland, M.D., Memorandum of Law, with Exhibits A-O 1-4

Affirmation of Senta B. Siuda, Esq., Assistant Attorney General, Memorandum of Law 5,6

Affidavit of James D. Lantier, Esq., Affidavit of Jyoti J. Upadhyay, M.D., Affidavit of John V. Kryger, M.D., Memorandum of Law 7-10

Correspondence from Jane G. Kuppermann, Esq., dated December 10, 2009 11

Attorney Affidavit (Reply) of Jane G. Kuppermann, Esq. 12

On May 9, 2005, Jordan Lieber, at the time 15 years of age, underwent surgery for a right uteropelvic junction obstruction at University Hospital in Syracuse, New York. This operation, described as a dorsal lumbotomy pyeloplasty procedure, was performed by Dr. Jyoti J. Upadhyay, with Dr. Dawn Sweeney as the attending anesthesiologist. It is undisputed that at the time of the surgery, both Dr. Upadhyay and Dr. Sweeney were employees of the State.

During the surgery, which took approximately four and one-half hours, Jordan was placed in a prone position, with a roll placed under his abdomen. A Bair Hugger temperature management unit was used, with a warming blanket placed across the back of his lower legs. Jordan remained in this prone position for the course of the surgery.

Immediately following the surgery, Jordan complained of extreme pain, redness, and swelling in and about his legs. He was diagnosed with bilateral lower leg compartment syndrome, and emergency compartment release fasciotomies were performed.

In this claim, claimants seek damages for the injuries suffered by Jordan during the surgical procedure of May 9, 2005. In support of this motion for summary judgment, claimants have submitted the Affidavit of Jay S. Copeland, M.D. (Item 3) in which he opines that the compartment syndrome was caused by improper positioning of Jordan and the failure to correct this positioning during such surgery.(1) Specifically, Dr. Copeland concludes that Jordan was improperly placed in a prone position with a roll under his abdomen during the surgery, resulting in decreased venous return from the legs, swelling and increased pressure in the compartments of the legs, and damage to the nerves and muscles. Dr. Copeland concluded that the compartment compression injuries suffered by Jordan were a direct result of the positioning during surgery, and the failure to correct it, and that such actions constituted departures from the standards of appropriate medical care for a urologist under the circumstances.

Additionally, claimants assert the doctrine of res ipsa loquitur to establish liability against the State for the injuries suffered by Jordan. Claimants again rely upon the Affidavit of Dr. Copeland, who opined that compartment syndrome does not occur in the absence of negligence and that in this situation, the Court should infer that the State was negligent.

It is well settled that 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 material issues of fact exist, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223). In other words, the issue is not whether claimant can ultimately establish liability, but rather, whether there exists a substantial issue of fact requiring a plenary trial (Scarpulla v County of Suffolk, 128 AD2d 603). However, only bona fide issues of fact are sufficient to defeat an application for summary judgment, and not issues "based on conclusory or irrelevant allegations" (Rotuba Extruders v Ceppos, supra at 231).

The proponent of a summary judgment motion, in this case the defendant, must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence sufficient to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557). Once the proponent of summary judgment has made a prima facie showing, however, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial (Zuckerman v City of New York, supra; Alvarez v Prospect Hosp., 68 NY2d 320).

Generally, negligence cases are not subject to resolution by summary judgment, but it may be granted if the proof submitted on such an application is sufficient to clearly establish the negligence of the defendant (Foltis, Inc. v City of New York, 287 NY 108; deVoil v Wallace, 221 AD2d 411). It is rare, but summary judgment may even be appropriate in medical malpractice cases (Salter v Deaconess Family Medicine Center, 267 AD2d 976).

In a medical malpractice action, a claimant has the burden of proof and must establish a deviation or departure from accepted practice and that such departure was a proximate cause of the injury or damages suffered (Ramsay v Good Samaritan Hosp., 24 AD3d 645). Testimony from a medical expert is necessary to establish, at a minimum, the standard of care (Spensieri v Lasky, 94 NY2d 231).

In this matter, and as mentioned previously, claimants contend that Dr. Upadhyay negligently positioned Jordan during the surgery, and improperly positioned the abdominal roll, and that these decisions caused the impeded venous return which in turn caused the compartment syndrome. In support of this contention, claimants have submitted the affidavit of their medical expert, Dr. Copeland, who opined that these actions constituted a deviation or departure from appropriate medical standards of care.

Based on the foregoing, the Court finds that claimants have established a prima facie showing of entitlement to judgment. However, the attorneys for two of the defendants in the Supreme Court action have also submitted an affidavit from a medical expert, John V. Kryger, M.D., an Associate Professor of Urology and Program Director of the University of Wisconsin Medical School. Based upon his review of the medical records and deposition transcripts, Dr. Kryger has concluded that Dr. Upadhyay was not negligent in her treatment of Jordan in this particular matter. In his Affidavit (Item 9), Dr. Kryger specifically refers to the decision of Dr. Upadhyay to place Jordan in a prone position during the course of this surgery, which he considers to be completely within the standard of medical care. He further states that the prone position is an option for the surgery which is taught in his residency and fellowship training programs. He further states that the use of accessory devices (such as the abdominal roll) is within the realm of the particular surgeon's judgment.

Dr. Kryger opines that he was not aware of any prior cases of compartment syndromes resulting from this type of positioning during surgery, and therefore this outcome was not reasonably foreseeable.

Dr. Kryger's opinion, based upon the same documentation and information relied upon by claimants' expert, Dr. Copeland, certainly creates a material question of fact as to whether Dr. Upadhyay's actions and decisions during this surgery constitute malpractice, thereby precluding summary judgment.

Claimants, nevertheless, contend that the doctrine of res ipsa loquitur permits the Court to infer negligence against the State under the facts and circumstances presented herein.

To rely on this doctrine, a claimant must show that (1) the injury or event does not ordinarily occur in the absence of negligence, (2) the agent or instrumentality that caused the injury is within the defendant's exclusive control, and (3) the injury is not the result of any voluntary action or contribution by the claimant (States v Lourdes Hosp., 100 NY2d 208; Kambat v St. Francis Hosp., 89 NY2d 489). In medical malpractice actions, the doctrine is available to establish a prima facie case where an unexplained injury occurs in an area remote from the treatment site during a time that the patient is anesthetized (DiGiacomo v Cabrini Med. Ctr., 21 AD3d 1052).

In this particular matter, there does not appear to be any question that claimants have satisfied the last two factors of this doctrine. With regard to the second factor, the operating room was clearly under the control of physicians in the employ of the State and specifically, Dr. Upadhyay. With regard to the third factor, Jordan was under anesthesia during the entire procedure, and therefore could not have contributed to his injuries.

Claimants contend that they have also satisfied the first requirement (that the injury or event does not ordinarily occur in the absence of negligence), through the Affidavit of their expert, Dr. Copeland. The Court notes that it is permissible to utilize expert medical testimony in order to establish this element (States v Lourdes Hosp., supra), and Dr. Copeland opines in his Affidavit that compartment syndrome does not normally occur without negligence.

In other words, it is the contention of claimants that even if the Court accepts the opinion of Dr. Kryger that Dr. Upadhyay was not negligent in her actions during this surgery, negligence must have nevertheless occurred during the surgical procedure for the compartment syndrome to have developed.

This Court, however, is unwilling to infer negligence against the State based solely on the outcome of this surgical procedure. While Dr. Copeland opines that compartment syndrome normally does not occur in the absence of negligence, Dr. Kryger has opined that the actions taken by Dr. Upadhyay were within appropriate standards of care, and that she had utilized an accepted procedure for positioning Jordan during this surgery. As previously determined herein, there are material questions of fact as to what actually transpired during the surgery (especially the disputed conversations between Dr. Upadhyay and the anesthesiologist, Dr. Sweeney). If these issues are resolved in claimants' favor, they could very well lead to a finding of negligence or malpractice. However, the Court finds that this is not the rare medical malpractice case which can be determined upon the doctrine of res ipsa loquitur. Therefore, claimants' request for summary judgment based on res ipsa loquitur must also be denied.

In this motion, claimants also requested that this Court dismiss the seven affirmative defenses asserted by the State in its Verified Answer to Amended Claim, contending that the defenses are without merit as a matter of law. The Court notes that discovery has been completed in this matter, and that a Note of Issue and Certificate of Readiness has been served and filed.

Defendant argues that these defenses all have the appearance of merit, and that the same issues of fact which prevent this Court from granting summary judgment in favor of the claimants also preclude this Court from dismissing these defenses, since it is error for a Court to strike defenses when material issues of fact remain unresolved (Matter of Harrison v State of New York, 262 AD2d 833; Connelly v Warner, 248 AD2d 941).

Pursuant to CPLR Rule 3211(b), a defense may be dismissed if it has no merit. The movant has the burden to establish that the particular defense is without merit (Richardson v Pascarella, 15 Misc 3d 1143[A]).

The Court will therefore examine each of the seven affirmative defenses asserted by the State in its Verified Answer to Amended Claim (Exhibit C to Items 1-4).

In its first affirmative defense, defendant contends that Jordan Lieber, through his parents and natural guardians, assumed the risk of the procedure. Dr. Upadhyay, however, testified in her deposition (Exhibit J to Items 1-4) that she did not consider compartment syndrome a risk of the procedure performed on Jordan, and that she never discussed this possibility or risk with claimants. The Court therefore finds that there is no issue of fact regarding this affirmative defense, and that it cannot be established as a matter of law. It must therefore be dismissed.

In its second affirmative defense, defendant alleges that any damages otherwise recoverable by the claimants should be diminished in proportion to any culpable conduct attributable to the claimants. It has been established, however, that Jordan was under anesthesia during the entire course of this procedure, and there is no suggestion of any culpable conduct attributable to him or his parents. This defense, therefore, also cannot be established as a matter of law, and must be dismissed.

In the third and fourth affirmative defenses, defendant alleges that Jordan's injuries were caused, in full or in part, by a third person over whom the defendant had no control. Defendant, however, has acknowledged in its response to claimants' Demand for Verified Bill of Particulars that it had "no knowledge of any particular relevant third person whose actions or omissions may have contributed to the injuries claimed by this Claimant" (Exhibit D, 4 to Items 1-4). Furthermore, it certainly appears from this Court's review of the deposition testimonies and other papers submitted in connection with this motion that the only physicians significantly involved in this surgical procedure (Dr. Upadhyay as the surgeon and Dr. Sweeney as the anesthesiologist) were employees of the State at the time. Therefore, the Court finds that these two defenses do not have the appearance of merit, and must also be dismissed.

In its fifth affirmative defense, defendant contends that if an award is made in this action, it must be reduced by the amount of any past or future collateral source payments in accordance with CPLR 4545. The parties acknowledge, however, that this reduction, if applicable, must be applied by the Court regardless of whether defendant has asserted it as a defense. Accordingly, even though the collateral source issue remains, it need not be asserted as a separate affirmative defense, and defendant will not be prejudiced in any way by its dismissal. This defense is therefore dismissed. In its sixth affirmative defense, defendant asserts a CPLR Article 16 defense, in that it should be severally liable, and not jointly liable, if its culpability is 50% or less. However, as discussed previously, defendant has not even remotely suggested that Jordan Lieber, his parents, or any other third person was negligent in any manner, and therefore this defense cannot be sustained as a matter of law, and must be dismissed.

In its seventh affirmative defense, defendant asserts the defense of informed consent. However, as with the defense of assumption of risk, Dr. Upadhyay acknowledges that she never spoke with Jordan or his parents about the risk of compartment syndrome arising from this procedure and without such discussion, the defense of informed consent cannot be sustained as a matter of law. This affirmative defense must also be dismissed.

In sum, although this Court has determined herein that material issues of fact exist which prevent summary judgment from being granted to the claimants on the issue of liability, these same issues of fact do not extend to the affirmative defenses raised by the defendant. The Court has found no material issues of fact with regard to the seven affirmative defenses set forth in defendant's Verified Answer to Amended Claim. As noted above, discovery had been completed, a Note of Issue and Certificate of Readiness has been served and filed, and there are no issues of fact which would even remotely suggest that defendant could sustain its burden of proof at trial as to these defenses. Accordingly, these seven affirmative defenses must be dismissed.

Based upon the foregoing, therefore, it is

ORDERED, that Motion No. M-77212 is hereby GRANTED, in part, and DENIED, in part, and it is further

ORDERED, that the aspect of claimants' motion seeking summary judgment on the issue of liability is hereby denied; and it is further

ORDERED, that the aspect of claimants' motion seeking dismissal of the seven affirmative defenses raised by the defendant in its Verified Answer to Amended Claim is hereby granted, and such defenses are hereby dismissed in their entirety.

April 1, 2010

Syracuse, New York


Judge of the Court of Claims

1. Claimants also rely upon the deposition testimony of Dr. Sweeney, a transcript of which has been submitted with these motion papers (Exhibit K to Items 1-4).