Appeal from a judgment of the Supreme Court, Onondaga County (Brian F. DeJoseph, J.), entered January 19, 2011 in a medical malpractice action
Decided on March 23, 2012
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: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND SCONIERS, JJ.
. The judgment dismissed the amended complaint.
It is hereby ORDERED that the judgment so appealed from is affirmed without costs.
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.
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 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 ...