                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 22, 2016                   521965
________________________________

EVON MAJID,
                    Appellant,
     v                                      OPINION AND ORDER

ELAINE CHEON-LEE et al.,
                    Respondents,
                    et al.,
                    Defendant.
________________________________


Calendar Date:   October 12, 2016

Before:   Peters, P.J., McCarthy, Lynch, Rose and Mulvey, JJ.

                             __________


      Conway & Kirby, PLLC, Latham (Andrew W. Kirby of counsel),
for appellant.

      Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Daisy
Ford Paglia of counsel), for respondents.

                             __________


Peters, P.J.

      Appeal from a judgment of the Supreme Court (Kramer, J.),
entered July 2, 2015 in Schenectady County, which granted a
motion by defendants Elaine Cheon-Lee and Carenet Medical Group,
P.C. for a directed verdict.

      In 2006, plaintiff was experiencing pain in her abdominal
area and presented to defendant Elaine Cheon-Lee, an
obstetrician-gynecologist, for treatment. After an ultrasound
revealed a cyst on plaintiff's right ovary, Cheon-Lee performed a
surgery to remove the ovary and plaintiff's right fallopian tube.
Cheon-Lee also diagnosed plaintiff with endometriosis, a painful
gynecologic condition. When subsequent treatments proved
                              -2-                521965

unsuccessful in alleviating plaintiff's pain and heavy bleeding,
plaintiff underwent a second surgery on March 2, 2009, also
performed by Cheon-Lee, to remove her uterus, left ovary and left
fallopian tube. At the time of plaintiff's second surgery,
Cheon-Lee was an employee, officer and/or shareholder of
defendant Carenet Medical Group, P.C.

      In the weeks following the March 2009 surgery, plaintiff
complained of pain, nausea, fevers and vomiting to Cheon-Lee, who
eventually ordered a blood test, discovered an abnormality and
referred plaintiff to her primary care physician. On May 12,
2009, a CAT scan revealed that plaintiff's urine was not properly
draining out of her left kidney – a condition referred to as
hydronephrosis – because her left ureter, a tube which brings
urine from the kidney to the urinary bladder, was blocked.
Attempts to treat plaintiff's kidney proved ineffective and, in
November 2013, plaintiff underwent a surgery to remove her left
kidney.

      Plaintiff commenced this action in August 2011, alleging,
among other things, that Cheon-Lee was negligent in performing
the 2009 surgery and in failing to detect or diagnose the blocked
ureter. Plaintiff also relied on the doctrine of res ipsa
loquitur to establish the fault, liability and negligence of
Cheon-Lee. At trial, plaintiff presented expert testimony to
support three theories of negligence: that Cheon-Lee failed to
identify and isolate the left ureter during the surgery, that she
failed to recognize an injury to plaintiff's left ureter during
the surgery and that she failed to recognize the injury to the
left ureter during the postoperative period. At the close of
plaintiff's proof, Cheon-Lee and Carenet Medical Group
(hereinafter collectively referred to as defendants) moved for a
directed verdict, contending that plaintiff failed to establish
that Cheon-Lee's alleged negligence proximately caused
plaintiff's injuries. Supreme Court agreed, finding that the
testimony of plaintiff's expert that Cheon-Lee's alleged
negligence in clamping, cutting and suturing plaintiff's left
ureter was unsupported by the record, granted defendants' motion
and dismissed the complaint against them in its entirety.
                               -3-                521965

Plaintiff appeals.1

      A directed verdict is only appropriate "when, viewing the
evidence in a light most favorable to the nonmoving part[y] and
affording such part[y] the benefit of every inference, there is
no rational process by which a jury could find in favor of the
nonmovant[]" (Peluso v C.R. Bard, Inc., 124 AD3d 1027, 1028
[2015] [internal quotation marks and citation omitted]; see Clune
v Moore, 142 AD3d 1330, 1331 [2016]). "[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]; see Mazella v Beals, 27 NY3d
694, 705 [2016]). "[T]o establish proximate causation, the
plaintiff must demonstrate that the defendant's deviation from
the standard of care was a substantial factor in bringing about
the injury" (Clune v Moore, 142 AD3d at 1331 [internal quotation
marks and citation omitted]; see Wild v Catholic Health Sys., 21
NY3d 951, 954-955 [2013]). A plaintiff in a medical malpractice
action may also rely on the doctrine of res ipsa loquitur (see
Weeks v St. Peter's Hosp., 128 AD3d 1159, 1161-1162 [2015]),
which "permits the jury to infer negligence and causation
sufficient to establish a prima facie case based on
circumstantial evidence" (Mack v Lydia E. Hall Hosp., 121 AD2d
431, 432 [1986]; see Frank v Smith, 127 AD3d 1301, 1302 [2015]).
"Notably, a plaintiff is not required to eliminate all other
possible causes of the injury in order to establish a prima facie
case" of medical malpractice (Turcsik v Guthrie Clinic, Ltd., 12
AD3d 883, 886 [2004] [citation omitted]; see Kambat v St. Francis
Hosp., 89 NY2d 489, 494 [1997]; Schneider v Kings Hwy. Hosp.
Ctr., 67 NY2d 743, 744 [1986]).

      Initially, we find that Supreme Court properly concluded
that plaintiff failed to establish as a matter of law that Cheon-
Lee's alleged negligence in failing to identify and isolate
plaintiff's left ureter caused her alleged injuries. It is


     1
        Supreme Court also granted a motion by defendant Danilo
G. Cosico for a directed verdict, and plaintiff does not
challenge the granting of said motion.
                              -4-                521965

undisputed that, when removing the ovary and fallopian tube, the
surgeon must cut the infundibulopelvic (hereinafter IP) ligament,
which attaches the ovary to the pelvic wall. Because the IP
ligament carries with it significant blood supply, prior to
cutting it, it must be clamped off to prevent any bleeding.
After the ligament is cut, each of its ends must be sutured to
control bleeding.

      At trial, John DiOrio, a board certified
obstetrician-gynecologist who testified as plaintiff's expert,
repeatedly and "unequivocal[ly]" asserted that plaintiff's
injuries were caused by Cheon-Lee's failure to identify
plaintiff's left ureter during the March 2009 surgery, which
Cheon-Lee then clamped and cut together with the left IP
ligament. In DiOrio's own words:

             "The ureter was clamped, along with the
           IP ligament, and clamped and cut and then
           tied, which is how the ureter was damaged.
           This didn't come up from the moon. The
           ureter was clamped, let me be very clear
           on this, . . . with a clamp when [Cheon-
           Lee] clamped the IP ligament. . . . With
           that, she then clamped the ureter, because
           she didn't identify it. Once you clamp
           it, . . . you cut or transect, and then
           you put a suture ligature tie around it.
           We refer to the one-two-threes of those
           steps. Unfortunately, Dr. Cheon-Lee . . .
           did not ID the ureter, so the ureter was
           included in that maneuver, and thus we are
           here today with [plaintiff's] missing
           kidney."

      This conclusion, however, was in direct conflict with
plaintiff's own proof. Plaintiff's treating urologist, Brian
Murray, testified that, on August 12, 2009, when performing
surgery to remove the drainage tube and insert a stent between
plaintiff's left kidney and bladder, he accessed and visualized
plaintiff's left ureter. According to Murray, the ureter had not
been cut, as evidenced by the ureter being "still one piece" and
                              -5-                521965

the absence of any suture material in it. Murray's conclusion
was supported by a pathologist's report to the effect that the
ureter had not been cut but rather appeared to have collapsed
onto itself, causing the blockage. Inasmuch as the opinion of
plaintiff's expert was in direct conflict with plaintiff's own
proof, Supreme Court properly determined that there was a
complete absence of evidence with respect to causation pertaining
to plaintiff's first theory of negligence (see Peluso v C.R.
Bard, Inc., 124 AD3d at 1030-1031; Nichols v Stamer, 49 AD3d 832,
833-834 [2008]; Brown v Bauman, 42 AD3d 390, 392 [2007]; Lipsius
v White, 91 AD2d 271, 279 [1983]).

      However, Supreme Court erred when it dismissed the
complaint in its entirety, as plaintiff's trial proof established
a prima facie case of medical malpractice on two other theories
of negligence – namely, that Cheon-Lee failed to recognize an
injury to plaintiff's left ureter both when performing the
surgery and during the postoperative period.2 With respect to
the former theory, DiOrio testified that Cheon-Lee's failure to
perform a cystoscopy in conjunction with a dye test during the
March 2009 surgery represented a deviation from the standard of
care. Specifically, he opined that plaintiff's medical record
revealed that Cheon-Lee used a dye test during the surgery, which
was indicative of concern about possible damage to plaintiff's
left ureter. According to DiOrio, under the circumstances in
which the dye test was administered, the test itself would not
have revealed an injury to the ureter. Rather, at that point,
the standard of care mandated that Cheon-Lee perform a
cystoscopy, which, according to DiOrio, is a quick, simple method
of examining the lining of the bladder and the ureter for
potential damage. Had Cheon-Lee performed this technique, DiOrio
opined, she "would have identified the injury, urology would have
been called in and [plaintiff] would have had her repair on the


    2
        We reject defendants' contention that plaintiff failed to
preserve this argument for our review, as plaintiff opposed the
motion for a directed verdict, which, notably, was limited to the
issue of causation with regard to only one theory of liability
related to the failure to identify and isolate the ureter
(compare Rodriguez v Ford Motor Co., 106 AD3d 525, 526 [2013]).
                              -6-                521965

table" and would not have subsequently suffered from a loss of
kidney function and ultimately a loss of her left kidney. In our
view, this was a viable theory of liability that should have gone
to the jury (cf. Bunea v Cahaly, 37 AD3d 389, 390-391 [2007];
compare Golden v Pavlov-Shapiro, 138 AD3d 1406, 1406 [2016]).

      Plaintiff's final theory of liability was premised on
Cheon-Lee's alleged failure to diagnose the blockage of
plaintiff's left ureter during her postoperative visits. It is
well settled that, "[w]here, as here, the plaintiff alleges that
the defendant negligently failed or delayed in diagnosing and
treating a condition, a finding that the negligence was a
proximate cause of an injury to the patient may be predicated on
the theory that the defendant thereby 'diminished [the patient's]
chance of a better outcome'" (Clune v Moore, 142 AD3d at 1331,
quoting Wolf v Persaud, 130 AD3d 1523, 1525 [2015]; see Goldberg
v Horowitz, 73 AD3d 691, 694 [2010]; Borawski v Huang, 34 AD3d
409, 410 [2006]).

      Plaintiff's postoperative discharge note, dated March 5,
2009, indicated as follows: "Post-op course complicated by
nausea. Question, secondary to narcotics? Resolved post-op day
number three." Cheon-Lee conceded that the "question mark" in
that note signified that she was unsure whether plaintiff's
nausea was related to narcotic medications. In the days and
weeks following the March 2009 surgery, plaintiff again
complained to Cheon-Lee of pain, nausea, fatigue and loss of
appetite. Cheon-Lee likewise admitted in her testimony that
plaintiff presented with these symptoms and that she did not
diagnose plaintiff's ureteral obstruction, and acknowledged that
she does not routinely diagnose and treat ureteral obstructions.
Notably, DiOrio testified that nausea, vomiting, malaise, poor
appetite and pain in the left flank are all symptoms of a
ureteral obstruction, and that Cheon-Lee "had an absolute
responsibility in the early postoperative period at the hospital
to recognize the fact that things were not quite right." DiOrio,
as well as plaintiff's expert urologist, specified that time was
of the essence because "[t]he sooner the injury is picked up, the
higher the rate of success of the ureter being connected
appropriately and the kidney being saved." DiOrio opined that,
by failing to diagnose the subject injury and provide proper care
                              -7-                  521965

to plaintiff during the postoperative period, Cheon-Lee breached
the standard of care, causing plaintiff's injuries.

      "Whether or not res ipsa loquitur was applicable here,
plaintiff presented sufficient evidence of negligence to go to
the jury" on two of her three theories of liability (Lo Presti v
Hospital for Joint Diseases, 275 AD2d 201, 203 [2000]; see Babits
v Vassar Bros. Hosp., 287 AD2d 670, 671-672 [2001]). Upon the
evidence submitted, Supreme Court properly rejected plaintiff's
first theory of liability as a matter of law at the close of
plaintiff's proof, yet provided no explanation for dismissing the
entire complaint, and we can perceive none under the
circumstances of this case given the existence of two viable and
independent theories of liability that were supported by
sufficient trial proof (cf. Law v Moskowitz, 279 AD2d 844, 845-
847 [2001]). Accordingly, plaintiff is entitled to a new trial
as against defendants on the second and third theories of
liability.

     McCarthy, Lynch, Rose and Mulvey, JJ., concur.



      ORDERED that the judgment is reversed, on the law, without
costs, motion denied and matter remitted to the Supreme Court for
a new trial.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
