Horth v. MansurHorth v. Mansur
Appeal from an order of the Supreme Court (Mugglin, J.), entered October 15, 1996 in Otsego County, which granted defendant’s motion for summary judgment dismissing the complaint.
In 1984, plaintiff underwent two surgical procedures for endometriosis. The pain began reoccurring in 1991, at which time plaintiff sought the services of defendant, a surgeon then practicing obstetrics and gynecology. According to defendant, he diagnosed plaintiff with endometriosis and/or severe adhesions and he initially discussed three alternatives with her: waiting, treating the problem with medication or performing a laparoscopy. Although plaintiff first chose to try medication, defendant subsequently performed surgery on plaintiff which removed the remainder of her right ovary and the extensive adhesions that had formed. The incision was made along the scar from the prior incisions all the way into the abdomen. Afterward, plaintiff complained of continuing pelvic pain and felt that she was not healing as well as she had after the previous operations. She was later examined and diagnosed as having an internal nerve injury just above the abdomen. Thereafter, plaintiff commenced the instant action against defendant alleging four causes of action that arose from the surgery he performed: (1) medical malpractice, (2) fraudulent concealment of the malpractice, (3) medical malpractice under the doctrine of res ipsa loquitur, and (4) lack of informed consent. After the
We affirm. Initially, we reject plaintiffs contention that defendant, in support of his motion, failed to make a prima facie showing of entitlement to judgment as a matter of law. It is beyond cavil that in support of a motion for summary judgment, the movant must establish an entitlement to judgment as a matter of law by producing evidence demonstrating the absence of any genuine issues of fact (see, Alvarez v Prospect Hosp.,
Here, defendant submitted the pleadings, portions of his and plaintiffs depositions, plaintiffs medical records, his own sworn affidavit as well as the affidavit of Saeed Bajwa, a neurosurgeon. In his affidavit, defendant unequivocally stated that he did not sever or damage any of plaintiffs nerves during the procedure, which he claimed was performed consistent with accepted medical standards. Hospital records on the surgery indicated no signs of abnormalities or overt negligence by de
In opposition to the motion, plaintiff submitted, inter alia, the affidavits of three physicians. Upon review, however, we also agree with Supreme Court that the physicians failed to overcome defendant’s entitlement to summary judgment. The record reveals that one physician stated that “there is every opportunity for the nerves in question to be injured or transected”, and later referred to the link between defendant’s incision and plaintiffs injury as a “possibility”. We conclude, however, that such speculation cannot substitute for a causal link between defendant’s surgery and plaintiffs alleged injury. The two other physicians were able to state that plaintiff suffered real and quantifiable pain; however, neither were able to conclude that the pain was the result of defendant’s malpractice. We conclude that there was no expert proof that defendant’s alleged deviation in surgery of carrying the incision down to the abdomen was negligent or proximately caused injury to plaintiffs nerves. In the absence of a causal nexus, plaintiff failed to create an issue of fact precluding summary judgment (see, Wahila v Kerr, supra, at 935; Fridovich v David, supra, at 985).
Finally, based upon plaintiffs failure to address in her brief Supreme Court’s dismissal of her remaining causes of action, her appeal from such dismissals is deemed abandoned (see, Deising v Town of Esopus,
Crew III, J. P., White, Yesawich Jr. and Carpinello, JJ., concur. Ordered that the order is affirmed, with costs.