Johnson v Montefiore Med. Ctr.Johnson v Montefiore Med. Ctr.
In this medical malpractice action, plaintiff alleges that she sustained injuries to her ureter after defendants negligently performed a hysterectomy to remove a cancerous tumor. Defendants Drs. Dennis Kuo and Devin Miller performed the surgery at defendant Montefiore Medical Center. Defendants deny plaintiff‘s negligence claims and have asserted affirmative defenses of culpable conduct and comparative negligence.
In their motion for summary judgment, defendants argued that they acted within the confines of good and accepted medical practice, that injury to the ureter is a known risk of hysterectomies, and that there was no delay in diagnosing the injury in light of plaintiff‘s clinical presentation. Defendants further contended that all other allegations were conclusory and speculative. Defendants relied on plaintiff‘s medical records, deposition transcripts, and expert affirmations.
Plaintiff opposed and argued that defendants were negligent by failing to insert ureteral catheters or create tunnels to protect the ureters during the hysterectomy, by injuring the right ureter, and by failing to perform a cystoscopy postoperatively. Plaintiff also submitted an expert affirmation.
A defendant makes a prima facie case of entitlement to summary judgment in a medical malpractice action by submitting an affirmation from a medical expert establishing that the treatment provided to the plaintiff comported with good and accepted practice (see Coronel v New York City Health & Hosps. Corp., 47 AD3d 456, 457 [1st Dept 2008]). Once established, the burden shifts to the plaintiff to present evidence in admissible form that demonstrates the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
A plaintiff normally sustains his or her burden where the affirmation of his or her medical expert demonstrates “that the defendant‘s actions were a departure from the accepted standard of care in the medical community, and a proximate cause—i.e., a substantial factor—in bringing about the injury” (Melendez v Parkchester Med. Servs., P.C., 76 AD3d 927, 927 [1st Dept 2010]; see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). When the parties have submitted nonconclusory conflicting expert opinions, the matter cannot be decided as a matter of law (see Cruz v St. Barnabas Hosp., 50 AD3d 382, 382 [1st Dept 2008]).
The motion court properly granted defendants’ motion for summary judgment. Defendants made a prima facie showing of entitlement to summary judgment through the affirmation of their medical expert, Dr. Molly Brewer, a board-certified obstetrician and gynecologist. Dr. Brewer‘s affirmation established that the treatment provided to plaintiff comported with good and accepted practice.
Dr. Brewer averred that injury to the ureter is a known surgical risk of a hysterectomy even where best practices are followed, as they were here, and that plaintiff‘s risk of injury was higher due to her physical size, her history of smoking, and the way the tumor distorted her anatomy. She opined that Dr. Kuo took the appropriate precautions to prevent an injury to the ureters by, among other things, creating a tunnel around the dissected area and a window underneath the infundibulopelvic ligament. Dr. Brewer averred that because the ureters were visualized during surgery and deemed intact, there was no need for any tests to check the ureter functioning. A cystoscopy would only have visualized a bladder injury, not a ureteral injury as alleged here. Moreover, there was no evidence of leakage until several days postsurgery.
Dr. Brewer also opined that plaintiff‘s reported symptoms associated with leakage were consistent with a ureteral injury of a vascular nature, as opposed to a laceration or crush injury as alleged by plaintiff‘s expert. According to Dr. Brewer, a vascular injury would typically take 7-14 days to show symptoms of leakage and thus would not have been evident during surgery. However, leakage from a cut or crushed ureter during the operation would likely have been visible intraoperatively or there would have been classic signs of uremic deterioration immediately after surgery.
Furthermore, plaintiff‘s expert did not address Dr. Brewer‘s opinion that plaintiff‘s ureter developed damage from devascularization, which would not have been apparent during surgery and was consistent with plaintiff‘s clinical presentation postsurgery (see Pietroforte, 220 AD3d at 628-629). Plaintiff‘s expert‘s failure to address this portion of Dr. Brewer‘s opinion was fatal to her opposition to defendants’ motion.
Plaintiff‘s argument that the court erred in relying on Dr. Kuo‘s testimony regarding his custom and practice is unpreserved and unpersuasive in light of the surgical report and other evidence the court relied upon in its analysis (see Guido v Fielding, 190 AD3d 49, 53 [1st Dept 2020]).
Supreme Court correctly denied plaintiff‘s motion to strike defendants’ affirmative defense of culpable conduct, as this Court previously decided the issue (see Johnson v Montefiore Med. Ctr., 203 AD3d 462, 464 [1st Dept 2022]).
We have considered plaintiff‘s remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: August 6, 2026