        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

238
CA 11-00814
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND SCONIERS, JJ.


MARGUERITE JAMES, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

DAVID WORMUTH, M.D. AND CNY THORACIC
SURGERY, P.C., DEFENDANTS-RESPONDENTS.
(APPEAL NO. 2.)


WOODRUFF LEE CARROLL, SYRACUSE, FOR PLAINTIFF-APPELLANT.

MARTIN, GANOTIS, BROWN, MOULD & CURRIE, P.C., DEWITT (DANIEL P. LARABY
OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Onondaga County
(Brian F. DeJoseph, J.), entered January 19, 2011 in a medical
malpractice action. The judgment dismissed the amended complaint.

     It is hereby ORDERED that the judgment so appealed from is
affirmed without costs.

     Memorandum: Plaintiff commenced this medical malpractice action
seeking damages arising from an operative procedure to remove a node
from her lung. On a prior appeal, we reversed the order insofar as
appealed from, denied defendants’ motion for summary judgment
dismissing the complaint and reinstated the complaint (James v
Wormuth, 74 AD3d 1895). Supreme Court thereafter granted plaintiff’s
motion seeking to amend the complaint, and a jury trial followed.
Plaintiff appeals from a judgment granting the motion of defendants at
the close of plaintiff’s case to dismiss the amended complaint
pursuant to CPLR 4401. We affirm.

     Plaintiff contends that reversal is required because this Court’s
prior order is the law of the case. We reject that contention.
“[T]he denial of defendants’ motion for summary judgment did not serve
as law of the case precluding the subsequent motion to dismiss” the
amended complaint at the close of plaintiff’s case (Bukowski v
Clarkson Univ., 86 AD3d 736, 739; see Smith v Hooker Chem. & Plastics
Corp., 125 AD2d 944, 945, affd 70 NY2d 994, rearg denied 71 NY2d 995).

     Contrary to plaintiff’s further contention, we conclude, based on
the record before us, that the court properly granted defendants’
motion and dismissed the amended complaint. In her direct case,
plaintiff submitted no expert testimony and limited her proof of
causation to the testimony of David Wormuth, M.D. (defendant), who
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                                                         CA 11-00814

testified that a fragment of thin wire was intentionally left inside
plaintiff’s thorax after it became separated from the tissue to which
it was attached during the procedure. In opposition to defendants’
motion, plaintiff’s attorney contended that plaintiff had made a prima
facie case of medical malpractice based on the doctrine of res ipsa
loquitur and thus that the case should be submitted to the jury.
Plaintiff’s theory of recovery was limited, however, to the failure of
defendant to remove the wire from plaintiff’s thorax.

     “The requisite elements of proof in a medical malpractice action
are a deviation or departure from accepted community standards of
practice, and evidence that such deviation or departure was a
proximate cause of injury or damage” (Castro v New York City Health &
Hosps. Corp., 74 AD3d 1005, 1006; see Elias v Bash, 54 AD3d 354, 357,
lv denied 11 NY3d 711). Furthermore, it is well settled that, where
the “theory of liability necessarily involves matters of medical
science requiring professional skill and knowledge and, therefore,
constitute[s] a medical malpractice theory of liability, [it] must be
supported by expert medical testimony that there was a deviation from
the standard of care” (Lidge v Niagara Falls Mem. Med. Ctr. [appeal
No. 2], 17 AD3d 1033, 1036). Inasmuch as plaintiff failed to
establish the applicable standard of care or defendants’ breach of it,
plaintiff failed to make out a prima facie case and thus the court
properly granted defendants’ motion.

     Under the unique factual and pleading status of this case, we
reject plaintiff’s further contention that she submitted sufficient
evidence to submit the case to the jury under the theory of res ipsa
loquitur. “In New York it is the general rule that submission of the
case on the theory of res ipsa loquitur is warranted only when the
plaintiff can establish the following elements: (1) the event must be
of a kind [that] ordinarily does not occur in the absence of someone’s
negligence; (2) it must be caused by an agency or instrumentality
within the exclusive control of the defendant; [and] (3) it must not
have been due to any voluntary action or contribution on the part of
the plaintiff” (Dermatossian v New York City Tr. Auth., 67 NY2d 219,
226 [internal quotation marks omitted]). Thus, res ipsa loquitur “is
an evidentiary doctrine that merely permits the jury to infer
negligence based on a well-founded understanding that the
injury-causing event would not normally occur unless someone was
negligent” (States v Lourdes Hosp., 100 NY2d 208, 213-214, rearg
denied 100 NY2d 577). Although plaintiff is correct that “[r]es ipsa
loquitur is applicable where . . . a foreign body is unintentionally
left in a patient following an operative procedure” (LaPietra v
Clinical & Interventional Cardiology Assoc., 6 AD3d 1073, 1074),
plaintiff neither established at trial nor argued in opposition to
defendants’ motion that the wire fragment was unintentionally left
inside her thorax. To the contrary, she elicited testimony from
defendant that he purposely left the wire inside plaintiff because he
determined, in the exercise of his medical judgment, that there was a
lower risk of harm to plaintiff by taking that course of action than
by making a larger incision to remove the wire. In addition, in
opposition to the motion, plaintiff specifically disavowed any
reliance upon a theory that defendant was negligent in losing the wire
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                                                          CA 11-00814

in plaintiff prior to his decision to leave it inside her.
Consequently, she was required to establish that defendants breached
the applicable standard of care and failed to do so.

     All concur except FAHEY and SCONIERS, JJ., who dissent and vote to
reverse in accordance with the following Memorandum: We respectfully
dissent. In our view, Supreme Court erred in granting defendants’
motion for a directed verdict pursuant to CPLR 4401 dismissing the
amended complaint at the close of plaintiff’s case, and we therefore
would reverse the judgment, deny defendants’ motion for a directed
verdict, reinstate the amended complaint and grant a new trial.

     “[A] directed verdict is ‘appropriate where the . . . court finds
that, upon the evidence presented, there is no rational process by
which the fact trier could base a finding in favor of the nonmoving
party’ . . . In considering a motion for a directed verdict pursuant
to CPLR 4401, ‘the . . . court must afford the party opposing the
motion every inference which may properly be drawn from the facts
presented, and the facts must be considered in a light most favorable
to the nonmovant’ ” (Bennice v Randall, 71 AD3d 1454, 1455, quoting
Szczerbiak v Pilat, 90 NY2d 553, 556).

     Plaintiff contends that she established a prima facie case of
medical malpractice under the doctrine of res ipsa loquitur. “Under
appropriate circumstances, the evidentiary doctrine of res ipsa
loquitur may be invoked to allow the factfinder to infer negligence
from the mere happening of an event” (States v Lourdes Hosp., 100 NY2d
208, 211, rearg denied 100 NY2d 577). Application of that “ancient”
doctrine (id.) “is warranted only when the plaintiff can establish the
following elements: (1) the event must be of a kind which ordinarily
does not occur in the absence of someone’s negligence; (2) it must be
caused by an agency or instrumentality within the exclusive control of
the defendant; [and] (3) it must not have been due to any voluntary
action or contribution on the part of the plaintiff” (Dermatossian v
New York City Tr. Auth., 67 NY2d 219, 226 [internal quotation marks
omitted]; see Morejon v Rais Constr. Co., 7 NY3d 203, 209; Kambat v
St. Francis Hosp., 89 NY2d 489, 494). In the context of a medical
malpractice case, “[r]es ipsa loquitur is applicable where, as here, a
foreign body is unintentionally left in a patient following an
operative procedure” (LaPietra v Clinical & Interventional Cardiology
Assoc., 6 AD3d 1073, 1074; see Kambat, 89 NY2d at 495-496).

     The evidence presented by plaintiff at trial established that
David Wormuth, M.D. (defendant) performed a thorascopic lung biopsy
procedure in which a wire was inserted into plaintiff’s body and
“hooked” or secured near or on the region of the lung that was to be
biopsied. Defendant trimmed the wire to facilitate its passage
through plaintiff’s chest wall, ostensibly after the subject lung was
deflated and, using a camera inserted into plaintiff’s body, expected
to find a fragment of the wire protruding from that lung. Defendant,
however, was unable to locate a four-centimeter piece of wire that
remained in plaintiff’s body and searched for that object for 20
minutes before stopping, in part to minimize the amount of time that
plaintiff was under general anesthesia, in part because he did not
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                                                         CA 11-00814

think the object would cause any harmful effects and in part because a
bigger incision to remove it would be deleterious to plaintiff.

     Under the circumstances of this case, we respectfully disagree
with the majority that the failure to remove the subject part of the
wire was solely purposeful. The record establishes that the loss of
that part of the wire was unintentional and, in our view, the fact
that defendant realized the foreign body at issue had been lost before
closing the incision does not change the fact that plaintiff presented
evidence that the operation had the unplanned and inadvertent result
of leaving an implement inside plaintiff’s body. Even though a
medical decision was made to abandon the lost implement and close the
incision before it was recovered, the loss of that foreign body at the
surgical site speaks for itself and satisfies the element of res ipsa
loquitur at issue in this appeal (see generally Kambat, 89 NY2d at
497; LaPietra, 6 AD3d at 1074-1075). Put differently, on the facts
before us, although the search for the foreign object lost inside
plaintiff was intentionally abandoned, it cannot be said that the
object itself was intentionally left in plaintiff during that
procedure.

     We also respectfully disagree with the majority’s conclusion that
plaintiff disavowed her theory that defendant was negligent in losing
the wire inside of her body prior to deciding to abandon the wire
inside plaintiff. At trial, plaintiff opposed defendant’s motion for
a directed verdict by arguing, inter alia, “that [the doctrine of] res
ipsa [loquitur] applies here, in that a foreign object [that] should
not have been left in the plaintiff was left there . . . .” In our
view, through that argument, plaintiff contended that this case is one
in which a foreign body was unintentionally left inside of plaintiff’s
body and thus one in which the doctrine of res ipsa loquitur applies.




Entered:   March 23, 2012                      Frances E. Cafarell
                                               Clerk of the Court
