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

1146
CA 11-00343
PRESENT: FAHEY, J.P., CARNI, SCONIERS, GORSKI, AND MARTOCHE, JJ.


JOSEPH F. GAGNON, JR. AND SHARON GAGNON,
PLAINTIFFS-APPELLANTS,

                     V                             MEMORANDUM AND ORDER

ST. JOSEPH’S HOSPITAL, THROUGH ITS OFFICERS,
AGENTS AND/OR EMPLOYEES, RICHARD KELLEY, M.D.,
INDIVIDUALLY AND AS AN OFFICER, AGENT AND/OR
EMPLOYEE OF ST. JOSEPH’S HOSPITAL, DAVID
ENG, M.D., INDIVIDUALLY AND AS AN OFFICER,
AGENT AND/OR EMPLOYEE OF ST. JOSEPH’S HOSPITAL,
AND CRAIG MONTGOMERY, M.D., INDIVIDUALLY AND AS
AN OFFICER, AGENT AND/OR EMPLOYEE OF ST.
JOSEPH’S HOSPITAL, DEFENDANTS-RESPONDENTS.


GUSTAVE J. DETRAGLIA, JR., UTICA, FOR PLAINTIFFS-APPELLANTS.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (JAMES D. LANTIER OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS DAVID ENG, M.D., INDIVIDUALLY AND
AS AN OFFICER, AGENT AND/OR EMPLOYEE OF ST. JOSEPH’S HOSPITAL, AND
CRAIG MONTGOMERY, M.D., INDIVIDUALLY AND AS AN OFFICER, AGENT AND/OR
EMPLOYEE OF ST. JOSEPH’S HOSPITAL.

SUGARMAN LAW FIRM, LLP, SYRACUSE (JOSHUA M. GILLETTE OF COUNSEL), FOR
DEFENDANT-RESPONDENT RICHARD KELLEY, M.D., INDIVIDUALLY AND AS AN
OFFICER, AGENT AND/OR EMPLOYEE OF ST. JOSEPH’S HOSPITAL.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Oneida County (Samuel D. Hester, J.), entered November 30, 2010
in a medical malpractice action. The order and judgment granted the
motions of defendants Richard Kelley, M.D., individually and as an
officer, agent and/or employee of St. Joseph’s Hospital, David Eng,
M.D., individually and as an officer, agent and/or employee of St.
Joseph’s Hospital, and Craig Montgomery, M.D., individually and as an
officer, agent and/or employee of St. Joseph’s Hospital, for summary
judgment dismissing the complaint against them.

     It is hereby ORDERED that the order and judgment so appealed from
is reversed on the law without costs, the motions are denied and the
complaint against defendants Richard Kelley, M.D., David Eng, M.D.,
and Craig Montgomery, M.D., individually and as officers, agents
and/or employees of St. Joseph’s Hospital, is reinstated.

     Memorandum:   Plaintiffs commenced this action seeking damages for
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                                                         CA 11-00343

injuries allegedly sustained by Joseph F. Gagnon, Jr. (plaintiff) as a
result of defendants’ medical malpractice. We agree with plaintiffs
that Supreme Court erred in granting the motion of defendants David
Eng, M.D. and Craig Montgomery, M.D. (Montgomery defendants) and the
motion of defendant Richard Kelley, M.D., seeking summary judgment
dismissing the complaint against them. On a motion for summary
judgment, defendants in a medical malpractice case have “the initial
burden of establishing the absence of any departure from good and
accepted medical practice or that the plaintiff was not injured
thereby” (Williams v Sahay, 12 AD3d 366, 368; see Humphrey v Gardner,
81 AD3d 1257, 1258). In support of their motion, the Montgomery
defendants submitted an expert’s affidavit that “fail[ed] to address
each of the specific factual claims of negligence raised in
plaintiff’s bill of particulars, [and thus] that affidavit is
insufficient to support a motion for summary judgment as a matter of
law” (Larsen v Banwar, 70 AD3d 1337, 1338).

     The Montgomery defendants also failed to establish as a matter of
law that their alleged negligence was not a proximate cause of
plaintiff’s injury (see generally Alvarez v Prospect Hosp., 68 NY2d
320, 324; Padilla v Verczky-Porter, 66 AD3d 1481, 1483). The expert
asserted that the Montgomery defendants could not have damaged
plaintiff’s left phrenic nerve during surgery on his cervical spine
because the surgical site was on the right side of the cervical spine
and the damaged nerve was on the left side thereof. The expert also
asserted that the removal of an osteophyte on the left side at C4-5
could not have damaged the left phrenic nerve because that nerve is
located at C3. Dr. Eng’s operative notes, however, indicate that the
Montgomery defendants also removed an osteophyte from the left side at
C3-4 and used screws to attach a plate to the cervical spine, and the
expert did not state whether the left phrenic nerve could have been
damaged during those procedures. The Montgomery defendants’ failure
to make a prima facie showing of entitlement to summary judgment
“requires denial of the motion, regardless of the sufficiency of
[plaintiffs’] opposing papers” (Winegrad v New York Univ. Med. Ctr.,
64 NY2d 851, 853).

     We also conclude that Dr. Kelley failed to meet his initial
burden on his motion for summary judgment dismissing the complaint
against him. Dr. Kelley submitted his own affidavit in support of the
motion and contended therein that he was entitled to summary judgment
because he complied with the accepted standard of care and did not
cause an injury to plaintiff’s left phrenic nerve. According to Dr.
Kelley, his instruments remained on the right side of plaintiff’s
spine and did not cross the midline of the anterior cervical spine.
In his operative notes, however, Dr. Kelley stated that he performed
tasks “on either side of the midline.” The operative notes also
indicate that Dr. Kelley used retractors to hold back structures in
plaintiff’s neck, but the affidavit of Dr. Kelley did not establish as
a matter of law that the use of retractors could not have caused an
injury to the left phrenic nerve. Because Dr. Kelley failed to make a
prima facie showing of entitlement to summary judgment, we need not
consider the adequacy of plaintiff’s opposing papers (see generally
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                                                         CA 11-00343

Winegrad, 64 NY2d at 853).

     We decline the request of plaintiffs to search the record and
grant summary judgment on liability with respect to the cause of
action against the Montgomery defendants and Dr. Kelley on the theory
of res ipsa loquitur pursuant to CPLR 3212 (b). “[O]nly in the rarest
of res ipsa loquitur cases may . . . plaintiff[s] win summary judgment
. . . That would happen only when the plaintiff[s’] circumstantial
proof is so convincing and the defendant[s’] response so weak that the
inference of defendant[s’] negligence is inescapable” (Morejon v Rais
Constr. Co., 7 NY3d 203, 209), and that is not the case here (see
Dengler v Posnick, 83 AD3d 1385, 1386). Contrary to the contention of
plaintiffs, the court acted within its discretion when it rejected the
submission of the curriculum vitae of their expert as untimely.
“While a court can in its discretion accept late papers, CPLR 2214 and
[CPLR] 2004 mandate that the delinquent part[ies] offer a valid excuse
for the delay” (Mallards Dairy, LLC v E&M Engrs. & Surveyors, P.C., 71
AD3d 1415, 1416 [internal quotation marks omitted]) and, here,
plaintiffs offered no excuse for the delay.

     In light of our determination, we do not address plaintiffs’
remaining contention.

     All concur except CARNI, J., who dissents and votes to affirm in
the following Memorandum: I respectfully dissent inasmuch as I
disagree with my colleagues that Supreme Court erred in granting the
motion of defendants David Eng, M.D. and Craig Montgomery, M.D.
(collectively, Montgomery defendants) and the motion of defendant
Richard Kelley, M.D. for summary judgment dismissing the complaint
against them. I therefore would affirm the order and judgment.

     On February 9, 2007, Joseph F. Gagnon, Jr. (plaintiff) underwent
an anterior cervical discectomy at the C3-4 and C4-5 levels. The
surgical approach and incision were made anteriorly on the right side
of plaintiff’s neck by Dr. Kelley, a board certified otolaryngologist.
After performing the surgical approach, Dr. Kelley was excused from
the operating room. The discectomy was then performed by Dr. Eng, a
board certified neurosurgeon, who was assisted by Dr. Montgomery, also
a board certified neurosurgeon. Plaintiff was discharged from the
hospital later that day and instructed to wear a cervical collar.
There is no dispute that, upon discharge from the hospital following
the surgery, plaintiff did not experience any symptoms or present any
complaints consistent with a surgically-related left phrenic nerve
injury.

     On February 22, 2007, plaintiff was seen by Dr. Eng in his office
and was without any complaints or symptoms consistent with a trauma or
surgically-related injury to the left phrenic nerve. At that visit,
plaintiff was given permission to stop wearing the cervical collar
part time. Shortly thereafter, plaintiff began to experience symptoms
of a left phrenic nerve injury. Plaintiffs commenced this medical
malpractice action alleging that, during the surgery, plaintiff
sustained an injury to the left phrenic nerve as a result of the
negligence of one or more of the defendants. Supreme Court granted
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                                                         CA 11-00343

the motions of the Montgomery defendants and Dr. Kelley for summary
judgment dismissing the complaint against them.

     I disagree with the conclusion of my colleagues that the
Montgomery defendants failed to submit an expert affidavit addressing
each of the specific factual claims of negligence raised in
plaintiffs’ bill of particulars. The majority does not identify any
“ ‘specific factual claim[] of negligence’ ” raised by plaintiffs and
not addressed by the Montgomery defendants in their moving papers.
Indeed, the only specific factual claim of negligence in plaintiffs’
bill of particulars is that the Montgomery defendants “failed to
recognize, . . . identify, isolate and prevent injury to the phrenic
nerve in the course [of] operating on the plaintiff . . . .” In
specifically addressing that claim, the Montgomery defendants’ expert
stated that plaintiff’s left phrenic nerve injury “could not have been
caused by the cervical dis[c]ectomy performed by Drs. Eng, Montgomery
and Kelley on February 9, 2007. [Plaintiff’s] dis[c]ectomy began with
an anterior, right-side approach through the soft tissue structures on
the right to the osteophytes located on his cervical spine.
Anatomically, the left phrenic nerve is located lateral to the left
carotid artery, left jugular vein and left scalene musculature. In
order to reach the left phrenic nerve from the right-side approach
used in [the] procedure, the physician would have had to pierce
through [plaintiff’s] left scalene musculature along with at least one
of several vital structures[,] including the bon[e]y spine, trachea,
esophagus, carotid sheath, carotid artery, and/or jugular vein. It
would therefore be anatomically impossible to cause injury to the left
phrenic nerve during an anterior cervical dis[c]ectomy with right-side
approach . . . without having seriously damaged one or more of those
vital structures and traversing the left scalene musculature.” The
expert further concluded, upon reviewing the medical records, that no
such injury occurred. Comparing that expert’s opinion to the specific
factual claim of negligence in plaintiffs’ bill of particulars, I
conclude that the Montgomery defendants sufficiently established their
entitlement to summary judgment and shifted the burden to plaintiffs
to raise a triable issue of fact (see Horth v Mansur, 243 AD2d 1041,
1042-1043), which they failed to do.

     The majority also concludes that the Montgomery defendants failed
to establish that “their alleged negligence was not a proximate cause
of plaintiff’s injury . . . .” Initially, inasmuch as defendants
established in the first instance that they were not negligent in
recognizing, identifying, isolating and preventing injury to the left
phrenic nerve in the course of operating on plaintiff, they did not
have any such burden. Thus, it was “beside the point to establish
that” the alleged negligence was not a proximate cause of the injury
(Cassano v Hagstrom, 5 NY2d 643, 645, rearg denied 6 NY2d 882).
Further, the Montgomery defendants’ expert opined that it would be
“impossible” to cause injury to the left phrenic nerve without causing
injury to one or more vital structures, which undisputedly did not
occur during the surgery. Therefore, even if the Montgomery
defendants had the burden to establish that their “alleged negligence
was not a proximate cause of plaintiff’s injury,” they more than
adequately did so by submitting evidence that it was “impossible” for
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                                                         CA 11-00343

the injury to have occurred during the right-side surgical approach
(see Horth, 243 AD2d at 1042-1043).

     The majority criticizes the Montgomery defendants’ “failure to
make a prima facie showing of entitlement to summary judgment” because
Dr. Eng’s operative notes indicate that an osteophyte was removed from
the left side at C3-4 and screws were used to attach a plate to the
cervical spine. Importantly, those “ ‘specific factual claims of
negligence’ ” are neither contained in plaintiffs’ bill of particulars
nor raised by their medical expert in opposition to the Montgomery
defendants’ motion. They are raised for the first time by the
majority.

     Advancing its own reading and interpretation of Dr. Kelley’s
operative notes, the majority further concludes that Dr. Kelley failed
to meet his initial burden on the motion because he submitted evidence
establishing that he “performed tasks ‘on either side of the
midline.’ ” Again, that specific allegation of negligence is first
raised by the majority and is neither contained in plaintiffs’ bill of
particulars nor raised by their medical expert in opposition to Dr.
Kelley’s motion. Inasmuch as plaintiffs’ medical expert has not
interpreted Dr. Kelley’s operative notes in that manner, I
respectfully submit that this Court should refrain from interpreting,
on its own and unaided by medical expert testimony, the operative
notes from sophisticated surgical procedures in order to find a claim
of negligence independent of any specific factual claim of negligence
made by plaintiffs. Here, Dr. Kelley’s operative notes contain the
following reference to the performance of tasks on either side of the
midline: “The bipolar cautery was used along the longus muscle on
either side of the midline.” The majority interprets the use of the
term “midline” to mean the midline of the cervical spine. In the
operative report, however, the term “midline” is used in reference to
the longus muscle, which is situated on the anterior spine and also
has a midline. In any event, in his affidavit in support of the
motion, Dr. Kelley describes the involvement of the midline of the
longus colli muscle as follows: “The approach concluded with
identification of the midline and border of the longus colli muscles.”
In other words, the reference to the term “midline” in the operative
report is to the midline of the longus colli muscle on the right side
and not, as the majority concludes, the midline of the cervical spine.
Thus, without any medical opinion from plaintiffs’ expert or any
specific claim of negligence in their bill of particulars, and
contrary to Dr. Kelley’s unchallenged explanation, the majority takes
it upon itself to interpret operative notes from a complex
neurosurgical procedure in order to identify a claim of negligence not
advanced by plaintiffs. I cannot agree with that interpretation.

     With respect to the conclusion of the majority that “the
affidavit of Dr. Kelley did not establish as a matter of law that the
use of retractors could not have caused an injury to the left phrenic
nerve,” I note that neither the term “retractor” nor any of its
derivatives appear anywhere in the complaint or bill of particulars.
Thus, the majority inappropriately criticizes Dr. Kelley’s affidavit
for failing to address a specific claim of negligence that was not
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                                                         CA 11-00343

raised by plaintiffs in the first instance. The first reference to
“retraction” as an alleged cause of the left phrenic nerve injury
appears in the opposition affidavit of plaintiffs’ expert, which
states that it is the expert’s “opinion that during the procedure the
retraction damaged the phrenic nerve . . . .” I note that
“retraction” per se of a nerve during a surgical procedure is not in
and of itself a deviation from accepted surgical procedure (see Schoch
v Dougherty, 122 AD2d 467, 468, lv denied 69 NY2d 605; Welsh v State
of New York, 51 AD2d 602). Dr. Kelley averred in his affidavit that
the left phrenic nerve was not exposed or retracted during the right-
side approach. In addition, according to that affidavit, “dissection
would need to continue and go beyond and behind the entire
laryngopharyngeal complex and esophagus, the left carotid artery,
vagus nerve and left internal jugular vein before the left phrenic
[nerve] is reached. It is not possible to retract or transect [those]
structures to reach the left phrenic nerve with an anterior right side
incision/approach without transecting, removing or severely injuring
[those] structures and therefore the patient.” Critically,
plaintiffs’ expert and the majority assume that the left phrenic nerve
was retracted. In doing so, however, they ignore the undisputed
evidence that no instrument or retractor used by Dr. Kelley came near
the left phrenic nerve (see Cassano, 5 NY2d at 645). “In drawing or
attempting to draw the inference that the nerve[ was damaged by Dr.
Kelley, plaintiffs’ expert] was applying the fallacy of ‘post hoc ergo
propter hoc’ ” (id. at 645). “In other words, [the expert] attempted
to [aver] in the form of an opinion [with respect] to a supposed fact
of which [that expert] could have no knowledge, that is, that the
[left phrenic nerve injury] was caused by [the] surgical [procedure]”
(id. at 645-646). There simply is no evidentiary basis, direct or
circumstantial, that any surgical instruments were ever located near
the left phrenic nerve during the operation, nor is there any
evidentiary basis to support the assumptions of plaintiffs’ expert
that the left phrenic nerve was retracted during the procedure (see
Lowery v Lamaute, 40 AD3d 822, lv denied 9 NY3d 810). Moreover,
setting aside the undisputed evidence that no retraction of the left
phrenic nerve occurred during the procedure, plaintiffs’ expert failed
to distinguish between retraction per se and excessive retraction,
either in degree or duration, and that expert did not set forth the
standard of care with respect to the left phrenic nerve retraction
that the expert asserts, in a conclusory fashion, occurred (see
generally DiMitri v Monsouri, 302 AD2d 420).

     Inasmuch as I conclude that the court properly granted the
motions of the Montgomery defendants and Dr. Kelley, there is no
remaining negligence cause of action to which the doctrine of res ipsa
loquitur may be applied. I therefore find no basis upon which to
consider plaintiffs’ request that we search the record and grant them
summary judgment on liability pursuant to CPLR 3212 (b) (see generally
Abbott v Page Airways, 23 NY2d 502, 512).

     Lastly, I agree with the majority that the court did not abuse
its discretion when it rejected the untimely submission of the
curriculum vitae of plaintiffs’ medical expert.
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                                              CA 11-00343

Entered:   December 30, 2011         Frances E. Cafarell
                                     Clerk of the Court
