Sweeney v Budnik
Annotate this CaseDecided on April 2, 2008
Supreme Court, Dutchess County
Lauren Sweeney, Plaintiff,
against
Theodora S. Budnik, M.D., Defendant.
6599/06
TO:MARK J. METZGER, ESQ.
GOLDSTEIN & METZGER, LLP
Attorneys for Plaintiff
40 Garden Street
Poughkeepsie, New York 12601
CRAIG A. BURGESS, ESQ.
FELDMAN, KLEIDMAN & COFFEY, L.L.P.
Attorneys for Defendant
995 Main Street
P.O. Box A
Fishkill, New York 12524
James D. Pagones, J.
In this medical malpractice action, plaintiff moves for partial summary judgment as to liability against defendant doctor. Plaintiff maintains that she suffered a burn which left a permanent scar on her abdomen after undergoing laparoscopic gallbladder surgery, an injury she argues was not a risk associated with the procedure. The facts are undisputed, and defendant admits causing plaintiff's injury. However, defendant claims that the injury was a complication of surgery, and therefore her actions did not deviate from accepted medical standards.
Plaintiff was diagnosed with symptomatic gallstones for which defendant recommended laparoscopic surgery to remove the gallbladder. Plaintiff consented to the surgery with the understanding that if the gallbladder could not be removed laparoscopically, defendant would have to perform "open" surgery. Prior to the procedure, defendant discussed the complications of surgery and gave her an informational pamphlet. At her examination before trial, defendant explained that "the most feared complication of gallbladder surgery" is injury to the common duct. The pamphlet given to plaintiff, characterized by defendant as "very complete" (Ex A to Motion Papers p. 10), listed the risks and complications for gallbladder surgery as "bleeding," "infection," "injury to surrounding organs," "injury to the common bile duct," "blood clots," "indigestion," "narooma (painful spot) or numbness near the incision," "continued formation of stones in the common bile duct" (Ex A to Opposition Papers). The only other complication of surgery defendant specified in her deposition was "injury to surrounding organs" as mentioned in the informational booklet (Ex A to Motion Papers p. 26).
Defendant explained that her preferred instrument to dissect during this type of surgery is a spatula, which allows the doctor to suck, irrigate, dissect and cauterize. She did not usually use scissors, and if she did, she did not electrify them. However, plaintiff's tissue was especially dense, and she was bleeding. Therefore, defendant used electrified scissors "because of the unusually fibrous nature of the gallbladder capsule" (id. at p. 29). After cutting through the dense tissue, defendant placed the scissors on plaintiff's abdomen with the wire still attached, [*2]picked up the spatula to continue with the procedure and stepped on the foot pedal to activate the spatula. But, because defendant had not disconnected the wire from the scissors, the scissors were electrified and plaintiff was burned on her abdomen.
During her deposition, defendant admitted she was unaware the wire was still attached to the scissors when she stepped on the foot pedal. She thought it was attached to the spatula. Defendant also admitted that "stepping on the foot pedal caused the burn. I take full responsibility for that." Defendant further admitted it was her responsibility to ensure the wire was attached to the instrument she intended to use.
Plaintiff averred that the scar resulting from the misuse of surgical equipment is distinct from the four tiny scars resulting from the incisions made to perform the surgery (Ex E ¶2; Ex F to Motion Papers).
In support of her motion for partial summary judgment, plaintiff argues that the manner in which defendant admittedly caused her burn was a deviation from accepted medical practice. Plaintiff buttresses her claim with an expert's opinion that, before stepping on the foot pedal which activates the medical instrument, defendant should have made sure the wire was attached to the instrument she intended to use. The expert concluded that the plaintiff's injury was caused by defendant's carelessness, a deviation from accepted medical practice, and not a complication of surgery.
In opposition, defendant submits an affidavit in which she maintains, for the first time, that plaintiff sustained a cauterization burn, a "rare complication" which can occur when using cauterization equipment. Defendant claims that type of complication was encompassed in the consent discussion - particularly the risk of complication of injury to surrounding organs - a fact to which she had previously testified at her examination before trial (Ex D ¶4 to Opposition Papers).
In order to establish a claim for medical malpractice, a plaintiff must prove a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damage (see Anderson v Lamaute, 306 AD2d 232, 233 [2d Dept. 2003]; DiMitri v Mansouri, 302 AD2d 420, 421 [2d Dept. 2003]).
Assuming a deviation or departure, there is no question of fact to be resolved as to proximate cause, as defendant admits to causing plaintiff's injury.
Plaintiff established her prima facie entitlement to summary judgment as a matter of law on her claim that defendant, by admittedly misusing surgical equipment, departed from accepted medical procedures, causing plaintiff's injury (see Console v Wyckoff Hgts. Med. Ctr., 19 AD3d 637, 638 [2d Dept. 2005]). Indeed, defendant admitted that after finishing with the scissors, she placed them on plaintiff's stomach. She further admitted that she did not disconnect the wire from the scissors or make sure that the wire was connected to the spatula before activating the electric current which burned and scarred plaintiff. Plaintiff's expert also avers that defendant's conduct was a deviation and departure from accepted practice.
The burden of proof then shifts to defendant to raise a triable issue of fact that her conduct was not a departure from accepted medical standards (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendant's self-serving and conclusory affidavit, which belatedly asserts a new claim that a cauterization burn is a rare complication of surgery fails to raise a triable issue of fact sufficient to defeat plaintiff's motion. Although defendant asserts in [*3]opposition to plaintiff's motion that she had previously testified at her deposition that her prior discussion with plaintiff encompassed the particular risk of a cauterization burn as a complication of surgery, defendant's testimony reveals only that plaintiff was given a pamphlet which set forth specific risks, none of which was the risk of a cauterization burn. Moreover, when asked:
Before the surgery, had you discussed with
[plaintiff] the possible complication of a
burn such as the one that occurred during
the surgery?
defendant replied:
We go through a list of complications, and
on that list of complications is "injury
to surrounding organs."
(Ex A to Motion Papers at p. 26). Thus, defendant's deposition testimony contradicts
her present claim that she specifically discussed the risk of a burn as a complication of surgery
with plaintiff, failing to raise a triable issue of fact (Xenakis v Waldbaum, Inc., 237
AD2d 433 [2d Dept. 1997] [belated claim advanced for first time in opposition to defendant's
motion failed to raise a genuine triable issue of fact]; cf. Rosenblatt v Venizelos, __
NY2d __, 2008 WL 597275 [2d Dept. 2008], 2008 NY Slip Op 01935 [2008][defendant's
belated attempt to avoid consequences of earlier admission by raising feigned issue insufficient
to defeat motion]).
In any event, even assuming a timely assertion of defendant's specific claim that a burn was a rare complication from the use of cauterization equipment, defendant's own admissions preclude any finding that plaintiff's injury was anything other than the result of defendant's improper use of surgical equipment. Indeed, the risk of injury to surrounding organs cannot possibly encompass an injury sustained as a result of a plaintiff's stomach being used as a table for surgical equipment and a doctor's failure to disconnect the electrical conduit from such equipment.
It is hereby ordered that plaintiff's motion for partial summary judgment as to liability is granted. The parties are directed to appear for a trial on the issue of damages on May 12, 2008 at 10 a.m. No adjournments shall be granted without leave of the court.
The Court read and considered the following documents upon this application:
PAGES NUMBERED
1.Notice of Motion.........................1-2
Affirmation-Metzger.................1-4
Exhibits............................A-F
Affirmation-Goldstein...............1-2 (Ex D)
Affidavit-Sweeney...................1-2 (Ex E)
2.Affirmation in Opposition-Burgess........1-5
Exhibits............................A-D [*4]
Affidavit-Budnik....................1-3 (Ex D)
3.Reply Affirmation-Metzger................1-3
Affidavit-Sweeney...................1-3
The foregoing constitutes the decision and order of the Court.
Dated:Poughkeepsie, New York
April 2, 2008
ENTER
HON. JAMES D. PAGONES, A.J.S.C.
040208 decision & order
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