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Joseph F. Gagnon, Jr. and Sharon Gagnon v. St. Joseph's Hospital

December 30, 2011

JOSEPH F. GAGNON, JR. AND SHARON GAGNON,
PLAINTIFFS-APPELLANTS,
v.
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 E MPLOYEE OF ST. JOSEPH'S HOSPITAL,
DEFENDANTS-RESPONDENTS.



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.

Gagnon v St. Joseph's Hosp.

Decided on December 30, 2011

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: FAHEY, J.P., CARNI, SCONIERS, GORSKI, AND MARTOCHE, JJ.

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 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 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 ...


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