[Copyrighted Material Omitted]
[974 N.Y.S.2d 309]
Woodruff L. Carroll, Syracuse, for appellant.
Martin, Ganotis, Brown, Mould & Currie, PC, DeWitt (Mark L. Dunn and Daniel P Laraby of counsel), for respondents.
[997 N.E.2d 134] Plaintiff Marguerite James commenced this medical malpractice action against defendants Dr. David Wormuth and his practice, CNY Thoracic Surgery, EC, after he failed to remove a localization guide wire during a biopsy of an area on plaintiffs lung. On this appeal from the Appellate Division order affirming the dismissal of her amended complaint, we affirm.
In October 2004, a guide wire inserted into the plaintiff to assist with a biopsy of an area in her lung dislodged. Defendant Dr. Wormuth proceeded with the biopsy, but was unable to locate the dislodged wire. After an unsuccessful 20-minute manual search for the wire, defendant determined that it was better for the plaintiff to leave the wire and end the surgical procedure, rather than to extend the amount of time she was in surgery for him to continue searching for the wire. Defendant informed plaintiff after the surgery that he could not find the wire, and that he had determined that it was better to leave it rather than continue the search procedure.
Plaintiff subsequently returned to defendant complaining of pain she attributed to the lodged wire, and which she said was so significant that it disrupted her ability to work. Approximately two months after the first procedure, defendant performed a second operation. In that procedure, he successfully
located and removed the wire with the use of a special X-ray machine known as a C-arm.
Plaintiff then commenced this medical [997 N.E.2d 135] [974 N.Y.S.2d 310] malpractice action. PLAINTIFFS
EVIDENCE at trial consisted of her testimony about, among other things, her discussion with Dr. Wormuth after the procedure, the postoperative pain and its impact on her ability to work, as well as the testimony of two of her clients as to the apparent disruption to her work caused by the pain, and Dr. Wormuth's testimony describing the procedure and his decision to leave the wire inside the plaintiff. Plaintiff also introduced several medical records relating to both procedures, including Dr. Wormuth's file, operation reports, a surgical pathology report, and an X-ray report produced during the period between the two procedures.
At the close of plaintiff's case, defendants moved to dismiss for failure to establish a prima facie case of medical malpractice. Defendants argued that plaintiff failed to show a deviation from accepted standards of medical practice, and also that such deviation was the proximate cause of the plaintiff's injury. Defendants pointed specifically to plaintiff's failure to present any expert proof on the standard of practice. Anticipating plaintiff's response, defendants argued that res ...