Butler v Martins

[*1] Butler v Martins 2005 NY Slip Op 52114(U) [10 Misc 3d 1064(A)] Decided on November 30, 2005 Supreme Court, Nassau County Feinman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 30, 2005
Supreme Court, Nassau County

Rose Marie Butler, Plaintiff,

against

Carlos Martins and ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP, Defendants.



1854/04

Thomas Feinman, J.

The defendant, Carlos Martins, moves for an order pursuant to CPLR §3212 granting summary judgment in favor of the defendant, Carlos Martins, dismissing the plaintiff's complaint in its entirety with prejudice on the ground that there are no triable issues of fact as a matter of law, and an order permitting the defendant, Carlos Martins, permission to enter judgment for statutory fees and costs. The defendant, Orlin & Cohen Orthopedic Associates, LLP, also moves for an order requesting the same relief. The plaintiff submits opposition. The defendant, Carlos Martins, submits a reply affirmation.

This is an action for personal injuries allegedly caused by the professional malpractice of the defendants. The plaintiff claims that the defendants negligently fractured her left ulna while the defendant, Carlos Martins, a Certified Hand Therapist, (hereinafter referred to as "Martins"), was administering physical therapy to the plaintiff. During the treatment, while Martins was pushing down on the plaintiff's left arm, a loud crack was heard. X-rays confirmed a fracture of her left ulna. Two days later, the plaintiff underwent open reduction and internal fixation with removal of old [*2]hardware and placement of new hardware for repair of an ulna shaft fracture. The plaintiff then underwent physical therapy. It is undisputed that the fracture that plaintiff sustained was a "new" fracture.

The defendant, Martins, submits the affidavit of Regina Beatus, a Certified Hand Therapist, in support of his motion to dismiss. Dr. Beatus avers that it is her "opinion with a reasonable degree of certainty that there were no departures in any of the care and treatment rendered by Mr. Martins to Mr. Butler for all of the dates of care." Ms. Beatus further avers that "there was no departure in the care and treatment rendered by Mr. Martins that caused Ms. Butler to fracture her arm during therapy," and that a fracture, during therapy, could occur for many reasons.

In opposition to the motion, the plaintiff submits an affidavit by Christopher Burrei, a physician, D.O. Dr. Burrei avers that it is his "opinion with a reasonable degree of medical certainty that the excessive force used by Carlos Martins was the cause or substantial factor in the ulna fracture on June 24, 2003, necessitating the surgery which occurred on June 26, 2003." Dr. Burrei states that the plaintiff had no signs of osteoporosis, and had the appropriate amount of force been applied, a fracture would not have occurred. Dr. Burrei submits that based upon the plaintiff's complaints of extreme pain during Mr. Martin's therapy, her bone density, and the "loud crack" heard during her therapy while Dr. Martins was exerting downward force, "and the fact that this type of fracture would not have occurred without excessive force being applied," that it is his opinion, with a reasonable degree of medical certainty, "that the force applied by Carlos Martins was a deviation from good and accepted physical therapy practice" which cause the new ulna fracture necessitating surgery and the subsequent care that followed.

The court's function on this motion for summary judgment is issue finding rather than issue determination. (Sillman v. Twentieth Century Fox Film Corp., 165 NYS2d 498 {3 NY2d 395} ). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. (Rotuba Extruders v. Ceppos, 413 NYS2d 141 {46 NY2d 223} ). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. (Stone v. Goodson, 200 NYS2d 627 {8 NY2d 8} . The role of the court is to determine if bonafide issues of fact exists, and not to resolve issues of credibility. (Gaither v. Saga Corp., 203 AD2d 239; Black v. Chittenden, 69 NY2d 665).

Here, the plaintiff has raised a triable issue of fact to defeat the motion for summary judgment. As argued by the plaintiff, the plaintiff's expert medical proof is sufficient to invoke the doctrine of res ipsa loquitur to allow the factfinder to infer negligence from the mere happening of an event. The Court of Appeals has ruled that in a medical malpractice action, under the appropriate circumstances, the "evidentiary doctrine of res ipsa loquitur may be invoiced to allow the factfinder to infer negligence from the mere happening of an event." (States v. Lourdes, 100 NY2d 208). Res ipsa loquitur is a doctrine of ancient origin which derives from the understanding that some events do not occur in the absence of negligence. (Id.) Here, the affidavit of Dr. Burrei is sufficient to support the claim of res ipsa loquitur in that it supports the first element that there is an [*3]understanding that the event which occurred does not occur in the absence of negligence, as Dr. Burrei avers that the defendant, Martins, deviated from good and accepted physical therapy by using excessive force; it supports the second element, that the injury was caused by an agent or instrumentality within the exclusive control of the defendant, in that Martins was the only individual pushing down on the plaintiff's arm when he heard a loud crack; and it satisfies the third element that there is no act or negligence on the part of the plaintiff which contributed to the happening of the event. It has also been held that res ipsa loquitur need not be pled in the complaint or Bill of Particulars for the plaintiff to invoice res ipsa loquitur. (Weeden v. Armor Elevator Company, 97 AD2d 197). The Second Department had held that the lower court improperly refused to charge a jury on the doctrine of res ipsa loquitur on the ground that the theory at trial had been that of negligence, and that the plaintiff failed to specifically plead res ipsa loquitur. (Id.)

In light of the foregoing, and upon the aforesaid papers, the motions for summary judgment are hereby denied.

E N T E R :

________________________________

J.S.C.

Dated: November 30, 2005

cc: Poisson & Hackett, Esqs.

Kaufman Borgeest & Ryan LLP

Lewis, Johs, Avallone, Aviles & Kaufman, Esqs.