Dowdell v Lenox Hill Hosp.

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[*1] Dowdell v Lenox Hill Hosp. 2019 NY Slip Op 50320(U) Decided on March 18, 2019 Supreme Court, Bronx County Capella, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 18, 2019
Supreme Court, Bronx County

Velynthia Dowdell, Plaintiff,


Lenox Hill Hospital, North Shore-long Island Jewish Health System, Inc., Elizabeth A. Poynor, MD, Stephanie Narducci, RN, Supplemental Health Care, Nicole Clement, ORT, and Cross County Travcorp d/b/a Cross County Staffing, Defendants.


Plaintiff's Attorney

Jonathan C. Reiter, Esq.

Jonathan C. Reiter Law Firm, PLLC

New York, New York 10118


Narducci & Supplemental Health's Attorney

Jesse R. Dunbar, Esq.

Barclay Damon LLP

200 Delaware Ave., Suite 1200

Buffalo, New York 14202


Clemente & Cross County Attorney

Anthony Lugara, Esq.

Decorato, Cohen, Sheehan et. al.

90 Broad Street, 14th Floor

New York, New York 10004


Lenox Hill & North Shore Attorney

Erin K. Kelley, Esq.

Heidell, Pittoni Murphy & Bach, LLP

99 Park Avenue

New York, New York 10016


Attorney for Elizabeth A. Poynor, MD

DOPF, PC 440 Ninth Ave., 16th Floor

New York, New York 10001

Joseph E. Capella, J.

The following papers numbered 1 to 7 read on these motions noticed on July 13, 2018, and duly submitted on March 4, 2019.







According to the plaintiff, this medical malpractice action arises from the unintentional leaving of a foreign object in plaintiff's body during a gynecological surgery. The foreign object was not discovered until months later, and plaintiff's complaint alleges that the doctrine of res ipsa loquitor applies to all defendants. The defendants, Stephanie Narducci, RN (Narducci), and Supplemental Health Care (Supplemental Health), and defendants, Nicole Clemente, ORT (Clemente), and Cross County Staffing (Cross County),[FN1] move for summary judgment (CPLR 3212) and dismissal of plaintiff's complaint and all cross-claims. The pertinent facts, which are not in dispute, are that defendant, Elizabeth A. Poyner, MD, performed a supracervical hysterectomy with bilateral salpingectomy on plaintiff on October 3, 2014, at Lenox Hill Hospital. The surgery itself started at 1340 and ended at 1545. Clemente, who was in the operating room at 1248 and left at 1320 (20 minutes before the surgery commenced), was the surgical scrub technician and Narducci, who was in the operating room from 1248 to 1345, was the circulating nurse. Dennis Renderas (Renderas) replaced Clemente as the surgical scrub technician at 1315 and remained until the conclusion of the surgery. Mia Jackson, RN (Jackson), replaced Narducci as the circulating nurse at 1248 and remained until the conclusion of the surgery. Clemente and Narducci prepared the surgical hysterectomy kit for use during the surgery and performed the initial laparotomy (lap) pad (a/k/a lap sponge) count. According to Jackson, these surgical hysterectomy kits are prepackaged with 15 lap pads. Narducci documented an initial 15 lap pads, and Jackson added 15 additional lap pads during the surgery.

On March 11, 2015, some five months after the surgery, plaintiff underwent an MRI of the abdomen that revealed a cystic collection in the anterior abdomen posterior of the rectus muscles displacing the adjacent bowel. On April 21, 2015, plaintiff underwent an interventional radiology procedure to drain the collection, and a sonography revealed a fluid collection containing a radiopaque structure that was suspicious for a surgical towel or gauze pad. Plaintiff then underwent exploratory laparotomy for the removal of a retained surgical lap pad. According to plaintiff, the aforementioned undisputed facts warrant the application of res ipsa loquitur, (Kambat v St. Francis Hosp., 89 NY2d 489 [1997]), because they show that a foreign object was unintentionally left in plaintiff's body following an operative procedure, and that the operating room, surgical instruments and the surgical procedure were under the defendants' joint and exclusive control.

As summary judgment relief is being sought, the movants must make a prima facie showing of an entitlement to same as a matter of law by tendering sufficient evidence to eliminate any material issues of fact. (Alvarez v Prospect, 68 NY2d 325 [1986].) Therefore, as [*2]the movants, these defendants must provide evidentiary proof in the form of expert opinions and/or factual evidence that establishes that they did not deviate from accepted standards of care and practice, and as such, their conduct was not a proximate cause of plaintiff's injuries. (Fileccia v Massapequa, 99 AD2d 796 [2nd Dept 1984]; affirmed 63 NY2d 639 [1984]). If they do, then the burden shifts to plaintiff and the remaining defendants to produce evidentiary proof in admissible form sufficient to create issues of fact to warrant a trial. (Alvarez, 68 NY2d 325.) In support of their summary judgment motion, Clemente and Cross County include, inter alia, the expert affidavit of registered nurse JoAnn Labellarte (Labellarte), who opines that the care and treatment Clemente provided was consistent with good and accepted nursing practice.

Nurse Labellarte states that Clemente complied with the standard of care required of a scrub tech, which was to set out the necessary surgical instruments and supplies for use during the surgery, and to assist in the initial lap pad count. According to Labellarte, this was in fact done because the evidence (i.e., North Shore medical form/worksheet) demonstrates that Clemente laid out fifteen lap pads, which is what Narducci recorded on the worksheet, and there was no requirement that Clemente personally record the count. Instead, as the circulating nurse, it was Narducci's responsibility to record the number of pads on the worksheet. Labellarte further opines that because Clemente left the operating room twenty minutes before the surgery commenced, there were no other actions on her part which could have caused or contributed to an incorrect count at or near the end of the surgery. Given the aforementioned, Clemente argues that plaintiff cannot rely upon res ipsa loquitur because she (Clemente) was not there to pass or hand any lap pads to the surgeon or resident during the surgery, to introduce any additional lap pads into the sterile field, to retrieve or collect any used lap pads, or to participate in the pre-closure or final count.

Res ipsa loquitur is neither a theory of liability nor a presumption of liability but an evidentiary rule (reflecting the common sense application of the probative value of circumstantial evidence) that permits the trier of fact to infer negligence solely because of the happening of an unusual or extraordinary occurrence. (Abbot v Page, 23 NY2d 502 [1969].) And it is often used in medical malpractice actions to establish liability when causation is difficult to prove. The criteria for res ipsa loquitur are that the event (1) was of a kind that ordinarily does not occur in the absence of someone's negligence, (2) must be caused by an agency or instrumentality within the exclusive control of the defendant(s), and (3) must not have been due to any voluntary action or contribution on the part of plaintiff. (Kambat, 89 NY2d 489.) For example, in Kabalan v Hoghooghi, plaintiff brought a dental malpractice action arising from a third-degree burn to her face that she sustained while under anesthesia during oral surgery. (77 AD3d 1350 [4th Dept 2010].) There the court ruled that res ipsa loquitur was appropriate because there was no dispute that the drill in question was in the dentist's exclusive control, and that plaintiff was not in any way responsible for the injury. (Id.) Here, Clemente argues that as the instrumentality (i.e., lap pad) was not within her exclusive control, plaintiff's reliance on res ipsa loquitur is misplaced.

In support of their summary judgment motion, Narducci and Supplemental Health argue that Narducci was not present during the time in which plaintiff alleges negligence and malpractice occurred (i.e., in the counting of lap pads pre-closure and at the conclusion of the two hour surgery), as Narducci had already left the surgical procedure within five minutes of the initial incision. And they note that there are no allegations of negligence or malpractice relating to the initial lap pad count performed by Narducci and Clemente before the incision. There is no expert affidavit/affirmation included with Narducci's summary judgment motion; however, res ipsa loquitur often eliminates the need for such expert testimony. And the reason for that is because it is often used in cases when the jury may draw an inference based on their common experience and general knowledge that reasonable care was not provided. (Abbot, 23 NY2d 502.) For example, the plaintiff in Escobar v Allen initiated a medical malpractice action arising from a bunionectomy, and the court ruled that the metal fragments left embedded in plaintiff's foot could be established utilizing res ipsa loquitur without the need for expert testimony. (5 AD3d 242 [1st Dept 2004].) Therefore, in a narrow category of factually simple medical [*3]malpractice actions, such as the instant one involving an alleged error in leaving a foreign object inside a body, no expert opinion is required to reasonably conclude that this would not have occurred without negligence. (Kambat, 89 NY2d 489.) Based on the aforementioned, the court is satisfied that movants have met their burden for summary judgment, (Zuckerman v City of NY, 49 NY2d 557 [1980]; Kaffka v NY Hospital, 228 AD2d 332 [1st Dept 1996]), in that they have established that res ipsa loquitur should not apply to them, and the burden now shifts to plaintiff and the other defendant, Elizabeth A. Poynor, MD,[FN2] and defendants, Lenox Hill Hospital and North Shore-Long Island Jewish Health System, Inc. (collectively referred to as Lenox Hill), to create issues of fact to warrant a trial on this issue.

In opposition, plaintiff includes an expert affidavit by Mindy S. Langweil, RN, MSN, ANP-BC, RNFA (Langweil), who opines that Narducci, Clemente, Jackson and Renderas all "departed from accepted standards of care in failing to perform and document a count of lap pads at the time of the handoff of this patient's care." She describes a "handoff" as an exchange of pertinent patient information and transfer of patient care between healthcare givers. Specifically she is referring to the transfer of lap pads from Narducci and Clemente to Jackson and Renderas. Nurse Langweil states that there is no documentation in the hospital records, nor is there any testimony in the deposition transcripts, that a "handoff count" (i.e., a count of lap pads at the time of the transfer) was performed. According to Langweil, "the nursing/tech staff would be responsible [for an] inaccurate count at the beginning of the procedure by Narducci and Clemente as well as an inaccurate count at the end of the procedure by Jackson and Renderas." She further opines that since Clemente participated in the initial count, and there is a possibility that there was an extra lap pad in the hysterectomy kit that may have been negligently overlooked, the initial count may have been incorrect. The opposition by Lenox Hill includes an affidavit by surgical nursing expert Courtney Boucher, NP (Boucher), who first opines that the Lenox Hill employees, nurse Jackson and scrub technician Renderos, properly performed their lap pad counts. She then further opines that merely because Narducci and Clemente were not involved in the pre-closure and final counts does not absolve them of liability. According to Boucher, "[b]oth of these individuals were involved in the initial equipment count, which, by the very nature of this case and the fact that there was a retained [lap] pad, had to be incorrect given that Nurse Jackson and scrub technician Renderos followed the proper procedure for accounting for equipment (sic) and their counts were correct both times."

As already noted, plaintiff's expert, nurse Langweil, opines that "there is no evidence that a handoff count of lap pads was performed . . . [and] this was a departure from the standard of care." She then states in very conclusory language, that this departure "was a substantial contributing factor in causing the patient's retained [lap] pad." However, nurse Langweil does not explain whose obligation it was to initiate such a count, whose obligation it was to record this count, or when this count should have been performed (e.g., should it have been done when Renderos relieved Clemente, or when Jackson relieved Narducci). Nurse Langweil sets forth this opinion in very conclusory language, (Bowder v NYC Health & Hosp., 37 AD3d 375 [1st Dept 2007]), in that it does not sufficiently elaborate on how this alleged failure to conduct a handoff count, in and of itself, could possibly have been the proximate cause of a lap pad remaining inside the plaintiff. She goes on to further opine that there may have been (emphasis added) an extra lap pad in the initial hysterectomy kit that may have been negligently overlooked. However, the undisputed evidence reveals that there were only 15 lap pads at the commencement of the surgery, and an additional 15 lap pads introduce by nurse Jackson during the surgery. It is well-settled that an expert's opinion must be not be speculative, (Diaz v NY Downtown Hosp., 99 NY2d 542 [2002]), but must be based on facts in evidence or facts that can be reasonably inferred from the evidence. (Gilleo v Elizabeth A. Horton Memorial Hosp., 196 AD2d 569 [2nd Dept 1993].) Given the undisputed evidence in this case, nurse Langweil's suggestion that there [*4]may have been an additional lap pad that was somehow overlooked is pure speculation. (Diaz, 99 NY2d 542.) As her opinion was essentially conclusory and speculative, it is of no probative value.

As for Lenox Hill's expert, Boucher, she opines that merely because Narducci and Clemente were not involved in the pre-closure and final counts does not absolve them of liability. However, what she fails to appreciate is the second criteria for res ipsa loquitur, and that is that the instrumentality must be within the exclusive control (emphasis added) of a defendant(s). (Kambat, 89 NY2d 489.) And although res ipsa loquitur has been utilized where more than one defendant may have been in control (Kerber v Sarles, 151 AD2d 1031 [1989]), the responsible defendants must share exclusive control of the instrumentality causing injury. (Bucsko v Gordon, 118 AD3d 653 [2nd Dept 2014].) Here, at the time the surgery commenced, up until it ended, the lap pads were in the exclusive (and uninterrupted) control of multiple other individuals (i.e., the surgeon, resident and the other nurses and scrub techs), and clearly the alleged act of leaving a lap pad in plaintiff's abdomen occurred after Narducci and Clemente had left.

Clemente, who left 20 minutes before he surgery commenced, did not participate in the pre-closure or final counts that were performed at the end of surgery. She did not introduce any additional lap pads, did not pass or hand any instruments or supplies to the surgeon or resident performing the surgery, and did not retrieve or collect any of the pads that had been used. Narducci, who left within 5 minutes of the initial incision, likewise did not participate in the pre-closure or final counts that were performed at the end of surgery. Under these circumstances, Narducci and Clemente cannot be held responsible for an alleged harm that occurs after their departure from the surgical room. Moreover, even if one were to accept the premise that Narducci and Clemente were negligent in their initial count of the lap pads, and that this negligence may have been a proximate cause of the malpractice, it cannot have been the proximate cause of the injury sustained (i.e., of leaving the lap pad inside plaintiff's abdomen). (Bustamante v Westinghouse, 195 AD2d 318 [1993]; Rodriguez v Budget, 44 AD3d 216 [1st Dept 2007]; Fileccia, 99 AD2d 796) Based on the aforementioned, the motions by defendants, Narducci and Supplemental Health, and defendants, Clemente and Cross County, for summary judgment (CPLR 3212) are granted, and plaintiff's complaint and all cross-claims against said defendants are dismissed.

The movants are directed to serve a copy of this decision/order with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court.

Dated: March 18, 2019

Hon. Joseph E. Capella, J.S.C. Footnotes

Footnote 1: The claims against Supplemental Health are vicarious in nature and based on the purported negligence of Narducci, and the claims against Cross County are likewise vicarious in nature and based on the purported negligence of Clemente.

Footnote 2: There was no opposition by Dr. Poynor.

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