                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: April 2, 2015                      519236
________________________________

JAMES FRANK et al.,
                      Appellants-
                      Respondents,
     v

WILLIAM SMITH,
                      Respondent,            MEMORANDUM AND ORDER
     and

MARGARET BALASSONE et al.,
                    Respondents-
                    Appellants.
________________________________


Calendar Date:    February 20, 2015

Before:    Lahtinen, J.P., Garry, Rose and Devine, JJ.

                              __________


      Conway & Kirby, PLLC, Latham (Nicholas A. Battaglia of
counsel), for appellants-respondents.

      Thuillez Ford Butler & Monroe, LLP, Albany (Andrew L.
McNamara of counsel), for respondent.

      Maguire Cardona, PC, Menands (Alicia M. Dodge of counsel),
for respondents-appellants.

                              __________


Lahtinen, J.P.

      Cross appeals from an order of the Supreme Court (Muller,
J.), entered September 17, 2013 in Essex County, which, among
other things, granted a motion by defendant William Smith for
summary judgment dismissing the complaint against him and denied
a motion by defendants Margaret Balassone and Adirondack Medical
                               -2-                519236

Center for summary judgment dismissing the complaint against
them.

      Plaintiff James Frank (hereinafter plaintiff) injured his
right arm and shoulder while working as an automobile mechanic.
When his condition failed to improve with conservative treatment,
he underwent surgery at defendant Adirondack Medical Center.
Defendant William Smith, an orthopedic surgeon, performed a right
shoulder arthroscopy, acromioplasty and mini-open biceps
tenodesis to treat plaintiff's ruptured long head of biceps and
shoulder impingement. The anesthesiologist was defendant
Margaret Balassone, an Adirondack Medical Center employee, who
administered an interscalene nerve block and general anesthesia.
Following the surgery, plaintiff had numbness and was unable to
flex his right index finger and thumb, a condition allegedly
caused by damage to his anterior interosseous nerve during the
medical procedure. Thereafter, plaintiff and his wife,
derivatively, commenced this medical malpractice action.
Following disclosure, Smith moved for summary judgment dismissing
the complaint, and Balassone, together with the Adirondack
Medical Center (hereinafter the Balassone defendants), moved for
the same relief. Plaintiffs cross-moved for summary judgment on
the issue of liability. Supreme Court granted Smith's motion,
but denied the Balassone defendants' motion, as well as
plaintiffs' cross motion. Plaintiffs and the Balassone
defendants now appeal.1

      We consider first plaintiffs' argument that they
sufficiently established the applicability of res ipsa loquitur.
"Ordinarily, a plaintiff asserting a medical malpractice claim
must demonstrate that the doctor deviated from acceptable medical
practice, and that such deviation was a proximate cause of the
plaintiff's injury" (James v Wormuth, 21 NY3d 540, 545 [2013]
[citations omitted]). "Where the actual or specific cause of an
accident is unknown, under the doctrine of res ipsa loquitor a
jury may in certain circumstances infer negligence merely from


     1
        Plaintiffs make no argument on their appeal regarding the
denial of their cross motion for partial summary judgment on the
issue of liability.
                              -3-                519236

the happening of an event and the defendant's relation to it"
(Kambat v St. Francis Hosp., 89 NY2d 489, 494 [1997] [citations
omitted]). "In a multiple defendant action in which a plaintiff
relies on the theory of res ipsa loquitur, a plaintiff is not
required to identify the negligent actor [and] [t]hat rule is
particularly appropriate in a medical malpractice case . . . in
which the plaintiff has been anesthetized" (Schmidt v Buffalo
Gen. Hosp., 278 AD2d 827, 828 [2000], lv denied 96 NY2d 710
[2001] [internal citations omitted]; see Backus v Kaleida Health,
91 AD3d 1284, 1286 [2012]; Kerber v Sarles, 151 AD2d 1031, 1032
[1989]). Elements of res ipsa loquitur are: "[f]irst, the event
must be of a kind that ordinarily does not occur in the absence
of someone's negligence; second, it must be caused by an agency
or instrumentality within the exclusive control of the defendant;
and third, it must not have been due to any voluntary action or
contribution on the part of the plaintiff" (Kambat v St. Francis
Hosp., 89 NY2d at 494; accord James v Wormuth, 21 NY3d at 546;
see States v Lourdes Hosp., 100 NY2d 208, 211-212 [2003]).

      The first two elements are disputed here. With regard to
the first element, we initially note that, although the
interscalene block administered by Balassone and the surgery by
Smith occurred in the neck and shoulder region, the injury that
plaintiff complained of following the surgery involved his finger
and thumb. There was no proof that plaintiff had a relevant pre-
existing injury or that the injury occurred in any fashion other
than during the medical procedure. Plaintiffs' expert stated
that both the block and surgery were performed in close proximity
to the brachial plexus nerves. The expert explained in detail
that the anterior interosseous nerve originates in the neck from
the brachial plexus and, despite combining and recombining,
maintains its identity. The expert opined to a reasonable degree
of medical certainty that the injury that plaintiff sustained
occurred because of negligence and failure by either Balassone or
Smith to follow proper protocols and procedures.

      Although such proof establishes the first element as to the
Balassone defendants, Smith further contends that it is
insufficient as to him because plaintiffs' expert, an
anesthesiologist and pain management physician, was not qualified
to render an opinion regarding the surgery. We are unpersuaded.
                              -4-                519236

A medical expert does not have to be a specialist in the same
field as a defendant doctor and, at trial, the absence of a same
speciality generally goes to weight (see Swartz v St. Mary's
Hosp. of Amsterdam, 101 AD3d 1273, 1274 [2012], lv denied 21 NY3d
859 [2013]; Bell v Ellis Hosp., 50 AD3d 1240, 1242 [2008]; Payant
v Imobersteg, 256 AD2d 702, 704-705 [1998]), unless the expert
fails to establish knowledge and expertise in the relevant area
(see Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895
[2004]). Plaintiffs' expert set forth sufficient knowledge of
the nature and location of the pertinent nerves as well as
relevant aspects of the surgery to render an opinion,
particularly for purposes of opposing a motion for summary
judgment (see DaRonco v White Plains Hosp. Ctr., 215 AD2d 339,
340 [1995]; see also Mineo v Owen W. Young, M.D., P.C., 248 AD2d
1012, 1012 [1998]). Moreover, the expert's opinions are
sufficiently detailed and supported by reference to and
discussion of relevant medical records and testimony so as not to
be, as asserted by defendants, wholly conclusory.

      Turning to the second element of res ipsa loquitur, the
record reflects that several physicians examined and treated
plaintiff for the nerve damage after the surgery and, although
they agreed that plaintiff had sustained a nerve injury, they
were unable to agree exactly where the nerve had been damaged or
whether the damage occurred during the block or the surgery.
Plaintiffs' expert stated that the "[m]ost plausibl[e]" cause was
the block administered by Balassone, but the expert explained it
could have occurred in the surgery. Even Smith acknowledged in
his deposition testimony and medical notes that the damage could
have occurred in either the block or the surgery. Although the
block and surgery did not happen simultaneously and each was
conducted by a separate physician, both occurred during a single
medical procedure involving plaintiff's arm and shoulder and at a
time when plaintiff was sedated and then anesthetized. Under the
circumstances, plaintiffs adequately established the second
element of res ipsa loquitur (see Schmidt v Buffalo Gen. Hosp.,
278 AD2d at 828).

      Since plaintiffs may rely upon res ipsa loquitur and the
record reflects that factual issues exist, summary judgment is
not appropriate for Smith or the Balassone defendants (see
                              -5-                  519236

generally Cole v Champlain Val. Physicians' Hosp. Med. Ctr., 116
AD3d 1283, 1286 [2014]; DeCarlo v Eden Park Health Servs., Inc.,
66 AD3d 1211, 1212-1213 [2009]). The remaining arguments are
either academic or unavailing.

     Garry, Rose and Devine, JJ., concur.



      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as granted defendant William
Smith's motion for summary judgment dismissing the complaint;
said motion denied; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
