Marguerite James, Appellant,v.David Wormuth, M.D., and CNY Thoracic Surgery, P.C., Respondents.

Brief

N.Y.May 28, 2013

To Be Argued By: Mark L. Dunn, Esq. Daniel P. Laraby, Esq. Time Requested: 10 Minutes STATE OF NEW YORK MARGUERITE JAMES, Plaintiff-Appellant, -against- DAVID WORMUTH, M.D. and CNY THORACIC SURGERY, P.C., Defendants-Respondents. Onondaga County Clerk’s Index No. 2005-2858 Appellate Division - Fourth Department’s DocketNo.: CA 09-01939 BRIEF ON BEHALF OF DEFENDANTS-RESPONDENTS MARTIN, GANOTIS, BROWN, MOULD & CURRIE, P.C. Attorneys for Defendants-Respondents 5790 Widewaters Parkway DeWitt, New York 13214 (315) 449-2616 Date Completed: January 18, 2012 Sffaulding Law Printing, _~nc., 231 Walton Street, Syracuse, New York 13202 (315) 422-4805 TABLE OF CONTENTS Table of Authorities .......................................................................ii Question Presented ........................................................................1 Preliminary Statement .....................................................................2 Statement of Facts .........................................................................4 Point I THE APPELATE DIVISION PROPERLY AFFIRMED THE TRIAL COURT’S JUDGMENT DISMISSING TIlE PLAINTIFF’S COMPLAINT AS SHE FAILED TO ESTABLISH A PRIMA FACIE CASE OF MEDICAL MALPRACTICE BASED ON RES IPSA LOQUITUR; WHERE HER SOLE CLAIM CHALLENGED DR. WORMUTH’S JUDGMENT TO LEAVE A PIECE OF GUIDE WIRE WHICH HAD DISLODGED FROM THE LUNG AND BECOME EMBEDDED IN CHEST MUSCLE TISSUE, RATHER THAN SUBJECT HER TO A MORE INTRUSIVE PROCEDURE WITH ATTENDANT SURGICAL RISKS TO TRY TO LOCATE AND REMOVE THE WIRE ................................................................................ 9 Ao Dr. Wormuth’s surgical judgment to leave the guide wire rather than enlarging the magnitude of the surgical procedure is not a decision upon which an inference of negligence can be drawn based upon common experience so as to invoke res ipsa loquitur ................................................................ 13 B° Plaintiff failed to establish her claims through Dr. Wormuth’s testimony, i .....23 Conclusion ................................................................................23 TABLE OF AUTHORITIES Castro v. NYC Health & Hosp. Corp., 74 A.D.3d 1005 (2d Dept. 2010) ........23 Dermatosian v. New York City Transit Authority, 67 N.Y.2d 219 (1986) ......11 Kambat v. St. Francis Hosp., 89 N.Y.2d 489 (N.Y. 1997) ............... ............13 Lidge v. Niagara Falls Mere. Med. Ctr., 17 A.D.3d 1033 (4th Dept. 2005) .....23 Rockefeller v. Moront, 81 N.Y.2d 560 (N.Y. 1993) .......................19, 20, 21 Rodriguez v. Manhattan Medical Group, 77 N.Y. 2d 219 (1986) ...........20, 21 ii QUESTION PRESENTED Whether the Appellate Division properly affirmed the Trial Court’s decision to grant the defendants’ motion for summary judgment dismissal of the plaintiff’ s complaint for failure to establish a prima facie case of medical malpractice; where the plaintiff failed to offer any expert testimony at trial and instead relied on the theory ofres ipsa loquitur to challenge Dr. Wormuth’s judgment to leave a piece of guide wire which had dislodged from the lung and become embedded in muscle tissue, rather than subject the plaintiff to a more invasive surgical procedure with attendant surgical risks. PRELIMINARY STATEMENT This brief is submitted on behalf of Respondents-Defendants David Wormuth, M.D. and CNY Thoracic Surgery, P.C. ("Defendants"). Appellant- Plaintiff Marguerite James ("Plaintiff") pursued an action for alleged medical malpractice claiming that Dr. Wormuth was negligent in deciding to leave a piece of a fine localizing guide wire in her chest wall after it was discovered that the wire had become dislodged. (R. 62, 81,102, 112). The matter was the subject of a jury trial in the Supreme Court, Onondaga County. (R. 32). Throughout the trial, the plaintiff focused exclusively on Dr. Wormuth’s decision to leave the wire in place. (R. 319-20). The plaintiff concluded her presentation of evidence without offering any expert testimony to establish the applicable standard of care or a deviation from that standard. (R. 27). Defendants moved for dismissal of the plaintiff’s complaint for failure to establish a prima facie case of medical malpractice. (R. 27). In a well reasoned decision, the Honorable Brian F. De Joseph held that "[t]here ha[d] been no proof and plaintiff d[id] not contend that the wire was improperly inserted into the plaintiff’ s body or that any negligence on the part of Dr. Wormuth caused the wire to dislodge." (R. 29). Accordingly, he noted that the sole subject of the dispute was Dr. Wormuth’s decision to leave the wire in place once he discovered that it had dislodged, rather than making a larger incision to attempt to locate it. (R. 25). Judge De Joseph held that "[a] jury [was] not capable of weighing and analyzing all facts that led to Dr. Wormuth’s decision." (R. 29- 30). He therefore dismissed the plaintiff’s complaint by Order dated December 27, 2010. (R. 25, 30). Plaintiff appealed to the Appellate Division, Fourth Department. (R. 6). The Appellate Division upheld the Judge De Joseph’s Order, holding that Dr. Wormuth’s purposeful decision to leave the wire in the plaintiff’s body was not subject to the doctrine ofres ipsa loquitur. (R. 7, 8). The Appellate Division decision should be affirmed as Dr. Wormuth’s Judgment to treat the patent by intentionally leaving the fragment in place rather than subject the patient to a more involved procedure is not a judgment within the realm of common experience, upon which negligence can be inferred. STATEMENT OF FACTS The plaintiff presented to Crouse Hospital for the performance of a needle localization and wedge biopsy on October 28, 2004. (R. 351). This procedure was intended to biopsy an 8mm nodule in the plaintiff’s lung discovered on an October 4, 2004, CT scan performed in response to a recent episode of bronchitis. (R. 349, 351). Since the area sought to be biopsied was not on the surface of the lung and was about the size of a pea, needle localization was utilized to assist in identifying the area to be removed. (R. 271,272). This was accomplished with the aid of an Interventional Radiologist, a non-party, who used a CT scanner to place a small, hollow needle into the lung, then advanced a very fine Wire into the lung. (R. 274). This wire measured less than one tenth of a centimeter in diameter. (R. 395). This procedure was performed independently by the Interventional Radiologist. The plaintiff provided an independent informed consent to the Interventional Radiologist for the procedure. (R. 830). The plaintiff was then moved onto a gurney and then transported from the radiology suite to the operating room. (R. 274). Once in the operating room, Dr. Wormuth trimmed the end of the guide wire to reduce dragging through the chest wall. (R. 275). The lung was then deflated by anesthesiology to minimize the risk of injury. (R. 270, 275). Again, an independent informed consent was provided to 4 Anesthesia. (R. 853-854). Dr. Wormuth testified that a camera is used to aid in visualization. (R. 270, 275). However, in the plaintiff’s case, when he began the procedure he was unable to locate the guide wire. (R. 280). At this point, the wire had been placed by interventional radiology, the plaintiff had been transported to the operating room by hospital staff, and her lung had been deflated by anesthesiology. (R. 270, 274, 275). The plaintiff’s sole claim focused on Dr. Wormuth’s surgical decision once the guide wire had become dislodged from the lung. (R. 319-20). Upon discovering that the wire had become dislodged, Dr. Wormuth attempted to locate it by feeling beneath the skin, above the muscle, beneath the muscle, above the rib, and beneath the rib in the intrapleural space. (R. 351). He spent at least twenty minutes attempting to locate the wire while trying to minimize the amount of time the plaintiff was under anesthesia. (R. 282). approximately four cm of the wire. (R. 351). He was unable to locate However, because the wire had punctured the lung as intended, leaving an irregular surface, Dr. Wormuth was able to locate the site to be biopsied and complete the procedure. (R. 282-83). Plaintiff provided an independent informed consent to Dr. Wormuth authorizing him to use his best judgment in treating her in the event that during the course of the operation conditions occurred which required a change in treatment plan. (R. 853). Dr. Wormuth then made the medical judgment that the plaintiff was best served by leaving the wire in place rather than creating a larger incision to try to locate and remove it, which would result in more certain and direct pain. (R. 292). He testified that in his experience, patients tend to tolerate wires in their chest walls well, and there is a long history of using metal sutures in chest walls and abdominal cavities, as well as leaving pacemaker wires in the skin, all without problems. (R. 292). He further testified that if the wire was not well tolerated, it could be removed later. (R. 292). His plan and clinical reasoning was documented in his surgical note dictated that same day. (R 856). The record shows that the plaintiff awoke from the operation at approximately 2:05 PM, and that the post-operative x-ray plaintiff claims located the wire that day was performed at approximately 3:03 PM, with the report yielding no indication of the wire. (R. 848, 863). On the morning of October 29, 2004, Dr. Wormuth saw the plaintiff in follow up of the procedure, at which time he advised her of what had happened with the wire and what her options were. (R. 838-39). The plaintiff indicated that she wanted to leave the wire alone. (R. 841). The plaintiff subsequently requested that the wire be removed, and Dr. Wormuth performed an operation to remove it on December 28, 2004. (R. 347- 48). The wire was ultimately removed with the aid of a C-arm. (R. 290). Dr. Wormuth explained that a C-arm is an x-ray device that creates real-time x-ray images that are like looking at a very old black and white television, with grainy, imprecise images. (R. 291). He did not feel that utilizing the C-arm was a reasonable approach until consulting with an x-ray specialist, an interventional radiologist, prior to the December 28, 2004 procedure. (R. 938). Dr. Wormuth explained that even with the C-arm, it was difficult to locate the very fine piece of wire, and that it ultimately took approximately thirty minutes to find. (R. 290). The procedure to remove the wire was performed without complication. (R. 347-48). The plaintiff testified that she had no residual problems following its removal. (R. 253). During the trial of the action, Plaintiff focused her claim of negligence on the judgment made by Dr. Wormuth, when confronted with a dislodgement of the guide wire, to leave the wire in place, arguing that the C-arm subsequently utilized to assist with the localization of the fragment should have been utilized at the initial surgery and the wire removed at that time. (R260-300). Plaintiff called Dr. Wormuth to testify during her case but called no other medical expert witnesses. (R 260-300). After plaintiff rested, Dr. Wormuth moved to dismiss the complaint. The Trial Court granted the motion holding that the issue of whether Dr. Wormuth should have removed the fragment of wire once it became dislodged requires an understanding of the surgical procedure and judgment exercised by Dr. Wormuth; a question which cannot be left to the common experience and knowledge of a lay jury. (R 52). Plaintiff appealed to the Appellate Division, Fourth Department. The majority affirmed the Trial Court’s Order holding that under the unique factual and pleading status of the case, plaintiff elicited testimony from Dr. Wormuth that he purposely left the wire fragment, determining in the exercise of his medical judgment that there was a lower risk of harm as compared to making a larger incision to remove the wire. (R. 21). The contention that res ipsa loquitur was applicable was rejected. (R 21). Plaintiff appealed to this Court based upon two dissents in the Appellate Division. (R. 22). It is submitted that the Appellate Division decision should be affirmed. POINT I THE APPELATE DIVISION PROPERLY AFFIRMED THE TRIAL COURT’S JUDGMENT DISMISSING THE PLAINTIFF’S COMPLAINT AS SHE FAILED TO ESTABLISH A PRIMA FACIE CASE OF MEDICAL MALPRACTICE BASED ON RES IPSA LOQUITUR, WHERE HER SOLE CLAIM CHALLENGED DR. WORMUTH’S JUDGMENT TO LEAVE A PIECE OF GUIDE WIRE WHICH HAD DISLODGED FROM THE LUNG AND BECOME EMBEDDED IN CHEST MUSCLE TISSUE, RATHER THAN SUBJECT HER TO A MORE INTRUSIVE PROCEDURE WITH ATTENDANT SURGICAL RISKS TO TRY AND LOCATE AND REMOVE THE WIRE. The Appellate Division and Trial Court both recognized that the plaintiff’ s claim in the action focused on Dr. Wormuth’s surgical judgment to leave a piece of guide wire in muscle tissue rather than utilizing imaging studies and enlarging the magnitude of the surgical procedure to try to locate and remove the wire. (R. 7; R. 50-51). At trial, the plaintiff’ s theory of negligence was succinctly stated in opposition to defendant’s motion to dismiss: "...when the wire was lost, that they made a decision between a thoracotomy and leaving the wire in, when really the decision should have been why don’t I walk down the hall and just get a C-arm and go find the thing." (R. 316). It is thus plain that from the outset that the plaintiff was pursuing a theory of negligence based solely on Dr. Wormuth’ s judgment to leave the wire once he discovered it had dislodged. 9 From her opening statement the plaintiff made clear that her claim was that Dr. Wormuth erred in his judgment to leave wire once it dislodged and that he lacked the knowledge and skill that an imaging study may have been beneficial in locating the fragment. (R 170). During her examination of Dr. Wormuth there were no questions or claims to ever suggest that there was some negligence which caused the wire to become dislodged. The absence of such a claim is easily understood under the facts of this case as there was no evidence to suggest that the dislodgement of the guide wire from the lung could only occur if there was negligence. It is simply not within the realm of common experience to be able to state that the only way this thin guide wire could have only become dislodged is by a medical provider’s negligence. The plaintiff did not offer any expert opinion evidence to "bridge this gap" to explain that dislodgement could only occur with someone’s negligence. The guide wire was inserted by interventional radiology; the patient was moved from a table to a gurney; the patient was transported from radiology to the surgical room and the lung was deflated. (R. 270, 274, 275). The wire could have been dislodged at any step in the absence of negligence. In fact, the plaintiff’s own brief recognizes that this could have occurred accidentally. (Brief of Plaintiff-Appellant at page 28). Furthermore, the plaintiff could not establish that the event was in the exclusive control of Dr. Wormuth when dislodgment occurred. By contrast, the 10 record demonstrates that multiple other health care providers were involved independently in the plaintiff’s care in relation to the wire. Significantly, Dr. Wormuth did not place the wire. Rather, the wire was placed by another physician, an interventional radiologist, who is not a party to this action. (R. 274). After the wire was placed by the interventional radiologist, the plaintiff was transported to the operating room by hospital staff. (R. 274). Her lung was then deflated by an anesthesiologist. (R. 270, 275). Independent informed consults were provided to independent practitioners. (R. 853,854). It was not until after each of these steps that Dr. Wormuth began the procedure and discovered that the wire had dislodged. (R. 270, 275, 280). Dr. Wormuth’s control over the wire was thus anything but exclusive. No proof was offered to exclude the more likely event that the wire was dislodged prior to Dr. Wormuth’s incision. See Dermatossin v. New York City Trans. Auth, 67 N.Y.2d 219 (NY 1980). In her opposition to defendants’ motion to dismiss for failure to establish a prima facie case of medical malpractice, the plaintiff made it clear that her claim focused on Dr. Wormuth’s judgment to leave the guide wire once he discovered it had become dislodged. THE COURT: But wait a minute. No one said that the doctor performed the procedure in a negligent manner causing it to break off, for example. I mean, no one said that. 11 MR. CARROLL: No. He didn’t retrieve it. THE COURT: Correct. Your theory here is that he committed negligence and malpractice by failing to retrieve it back on October the 28th - MR. CARROLL: Right. THE COURT: During the first surgery. MR. CARROLL: As it’s gone in, your Honor, that is the case. If I had an expert it would have been a different one, but that’s what the case is right now (R. 319-20). The claim and questioning focused on whether the wire was visible on an x- ray, whether it could have been located on a C-arm, and whether it should have been removed once discovered it had dislodged. (R260-308). Where, as in the instant case, the malpractice claim is predicated on professional surgical judgment or discretion, a lay person is not equipped to make a finding of negligence without the assistance of expert opinion evidence. The plaintiff’s complaint was properly dismissed. 12 Ao Dr. Wormuth’s surgical judgment to leave the guide wire rather than enlarging the magnitude of the surgical procedure; is not a judgment upon which an inference of negligence can be drawn based upon the common experience so as to involve res ipsa loquitur. Res ipsa loquitur permits an inference of negligence to be drawn from an event which, within the realm of common experience, would not ordinarily happen without negligence. Kambat v. St. Francis Hospital, 89 N.Y.2d 489, 494-95 (N.Y. 1997). The applicability of the doctrine may be limited in medical malpractice cases where the common knowledge and experience of lay jurors may be inadequate to support an inference of negligence. Id. Specific prerequisites must be met in order for the doctrine to apply. The first element a proponent of ares ipsa loquitur theory of negligence must establish is that "the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence." Kambat, 89 N.Y.2d at 494. This Court held that when considering whether a fact pattern meets the criteria of ares ipsa loquitur case such that a plaintiff is not required to offer expert testimony, the inquiry "centers primarily on the first element, since it is with regard to the likelihood that the accident would not have happened without negligence that the jury is generally expected to draw upon its common knowledge." Kambat, 89 N.Y.2d at 497. The event in this case, the decision to leave in place a portion of guide wire which had become dislodged from the lung and embedded in the chest wall rather 13 than subject the patient to a more involved surgical procedure, is not an event which can be said to have only occurred by virtue of neglect. It is simply not within the realm of common experience to be able to infer that a reasonable prudent surgeon would not have made the same judgment when confronted with the same circumstances. There is simply no plausible basis upon which to conclude that a lay person has the experience to analyze that claim. It cannot be said that Dr. Wormuth’s decision to leave the wire in place was an accident or that it was judgment that could have only been made if he was negligent. Dr. Wormuth testified that once he discovered the wire had become dislodged, he made the medical judgment that the plaintiff was best served by leaving the wire in place rather than creating a larger incision to try to locate and remove it, which would result in more certain and direct pain. (R. 292). lie further testified that in his experience, patients tend to tolerate wires in their chest wall well, and there is a long history of using metal suture in patient’s chest walls and abdominal cavity, as well as leaving pacemaker wires in the skin, all without problems. (R. 292). Moreover, he explained that if the wire was not well tolerated, it could be removed later. (R. 292). The plaintiff initially opted not to have the wire removed, though it was later removed without complication. (R. 347-48, 841). 14 As the Trial Court eruditely pointed out, this decision was not something a lay jury is equipped to judge without the aid of expert testimony. (R. 29-30). It would therefore have been wholly inappropriate to allow the jury to infer negligence in this case. Plaintiff’s contention in this case that after the fragment of guide wire became dislodged, Dr. Wormuth should have utilized an imaging device, specifically a C-arm, only highlights the inappropriateness of applying the theory of res ipsa loquitur in this case. Dr. Wormuth’s decision regarding the use of a C- arm cannot reasonably be said to be within the common experience of a lay jury. Dr. Wormuth testified that his experience was that a C-arm would not be capable of locating the fine wire. (R. 938). He explained that a C-arm is a device that creates real-time x-ray images that is like looking at a very old black and white television, with grainy, imprecise images. (R. 291). It was not until he consulted with an interventional radiologist, a specialist in the use of the device, prior to the December surgery that an attempt was made to utilize the C-arm. (R. 938). Even with the C-arm, it was very difficult to locate the very fine piece of wire, and took approximately thirty minutes to find. (R. 290). Whether a general surgeon should be familiar with an imaging device such that he should have known it may have been capable of locating a very fine piece of wire despite its limitations, and whether obtaining a C-arm, or consulting with 15 an interventional radiologist regarding the same, during the October 24, 2004, procedure while the plaintiff was anesthetized, resulting in longer time under anesthesia, thereby placing the plaintiff at increased risk for substantial harm, is plainly not something that is within the common experience of a lay jury. In all likelihood, a lay jury will not have heard of a C-arm, let alone know whether a general surgeon is required to be so familiar with the radiology device as to know whether it may have located the fine piece of wire, when its limitations indicate it would not be able to. Nor is a lay jury familiar enough with the risk of prolonged anesthesia to make a determination as to whether attempting to utilize a C-arm warranted those risks. Dr. Wormuth’ s judgment with regard to the C-arm is thus not subject to the doctrine of res ipsa loquitur. None of the medical decisions made by Dr. Wormuth were within the common experience of laymen. Expert testimony was thus required to establish the standard of care and a deviation from that standard, and the plaintiff was not entitled to rely on the doctrine of res ipsa loquitur. The contention that the fragment of guide wire, once dislodged, was unintentionally left by Dr. Wormuth so as to invoke res ipsa loquitur is belied by the specific facts of the case. Even the plaintiff conceded that Dr. Wormuth was aware that the wire had become dislodged and that he made a decision to allow it to remain (see Plaintiff’s Briefp. 28-29). Dr. Wormuth documented his discovery 16 that the guide wire had dislodged and his treatment plan to leave the wire fragment in place rather than extend the incision and cause further discomfort in his operative note dictated the day of the procedure. (R 856). Similarly, the contention that leaving the fragment of wire in place was not part of the treatment plan so that a jury can infer negligent treatment by Dr. Wormuth is also belied by the specific fact pattern in this case. Simply stating that the wire was a foreign object because it initially was intended to serve only a limited function during the procedure unfairly overlooks the fact that various circumstances can change during surgery. The wire may not have been intended to be left in the plaintiff at the outset of the procedure. However, by the time Dr. Wormuth began his involvement in the procedure, a number of variables came into play which modified that intent. First, the wire was placed by another physician, an interventional radiologist. (R. 274). In fact, the patient provided a specific informed consent to the interventional radiologist for the procedure of insertion of the guide wire (R. 830). After the wire was placed, the plaintiff was transported to the operating room by hospital staff. (R. 274). Her lung was then deflated by an anesthesiologist. (R. 270, 275). Again the patient provided specific informed consent to the anesthesiology provider (R. 853-854). At this point, Dr. Wormuth was faced with a scenario where, through no fault of his own, he was required to make a judgment as to whether to pursue 17 efforts to remove an object at the risk of certain harm to the patient, or to leave it in place based on his reasoned medical judgment that to do so was in the plaintiff’ s best interest. Dr. Wormuth made the medical judgment to act in the manner his knowledge and experience told him would be in the patient’s best interest, despite the initial intentions at the outset of the procedure. Obviously facts and circumstances can change during surgery so as to require modification of the treatment plan. Suggesting that the judgment to leave the fragment of guide wire in place was not part of the treatment plan unfairly approaches the facts of this case with blinders. The patient expected Dr. Wormuth to respond and utilize his best judgment and alter the treatment plan if necessary. This is evident from the consent she provided Dr. Wormuth: I also understand that during the course of this operation, unknown conditions may necessitate additional/different procedures than those mentioned above. I authorize the above named physician to perform such procedures as are necessary in his judgment. (R. 853). Indeed, Dr. Wormuth addressed this precise issue when confronted at trial: Q. So it was not a normal part of the operation procedure, then, to leave this five [sic] centimeter wire in Marguerite James? A. My intent at the beginning of the procedure was not to leave the wire, but part of my job is to respond to new information and continuing to reevaluate. The fact that I could not find the wire where I expected it to be and the fact that in quite detailed searching on a relatively thin chest wall I was not able to localize it, I made a judgment that she would be better served if we 18 abandoned the wire in place and, if necessary, came back at a later time to take it out; my experience being that people tolerate wire in their chest wall or abdominal cavity without problem. (R. 291-92). The plaintiff does not challenge that Dr. Wormuth failed to discover that the wire had become dislodged. She challenges the judgment made to leave the wire and the judgment as to whether a C-arm should have been utilized to assist with the efforts to locate the wire. Finally, any effort to ignore the actual substance of the claim made by attempting to classify the fragment of guide wire as a foreign object for statute of limitations purposes so as to then invoke the theory of res ipsa loquitur is illogical. Attempts to determine whether the guide wire was a foreign object or a fixation device for purposes of considering whether the statute of limitations may De tolled pursuant to CPLR 214-a should not be determinative of whether an inference of negligence could have been made during the actual trial of this matter. Reliance on this Court’s decision in Rockefeller v. Moront, 81 N.Y.2d 560 (N.Y. 1993) in support of the contention that an inference of negligence can be drawn regarding Dr. Wormuth’s judgment is misplaced. First, that case involved the potential application of the discovery rule to medical implements located in a patient’s body for purposes of the statute of limitations. Whether or not the guide wire was a foreign object for the purposes of the statute of limitations is irrelevant. The policy considerations underlying the 19 application of a rule in the context of the statute of limitations are necessarily different than those underlying the application of a rule which functions as an evidentiary substitute in extremely limited situations. In Rockefeller, this Court considered whether an internal suture improperly affixed to an organ not involved in the procedure constituted a foreign object or a fixation device for the purpose of determining whether the full of the limitation period was applicable. 81 N.Y.2d at 562. This Court concluded that it did not, as the "plaintiff’s claim [wa]s more accurately characterized as a challenge to defendant Moront’s medical judgment and treatment." Id. at 566. In this case the guide wire was deliberately placed by an Interventional Radiologist to serve a specific purpose; to assist the surgeon by identifying the area of the lung to be biopsied. Therefore it likely would have been considered a fixation device pursuant to the decisions of the Court. See Rodriguez v. Manhattan Medical Group 77 N.Y.2d 217 (N.Y. 1990). The notion that a fixation device can be transformed into a foreign object because it remains in the body after it should have been removed has also been rejected by this Court. Id~ at 222 (holding that an IUD intentionally inserted in uterus did not become foreign object when physician failed to remove it after being told to do so). This Court in Rodriguez noted that there was no claim against the surgeon who actually inserted the IUD. Id. at 223. Rather, the plaintiffs were seeking recovery from a different treating 20 physician on the theory that his treatment at that point in connection with the previously inserted IUD was negligent. Id____~. There was a subsequent medical omission, allegedly negligent causing her injuries. Id. However, this Court’s analysis in Rockefeller recognized that consideration must be given to the actual substance of the claim. 81 N.Y.2d at 564. It is the substance of the claim that is important; whether the guide wire was a foreign object is immaterial. Although plaintiff correctly points out that a number ofres ipsa loquitur cases involve "foreign objects," the suggestion that the mere involvement of a foreign object justifies the application ofres ipsa loquitur grossly oversimplifies both the doctrine of res ipsa loquitur and the facts of a given case, and would almost certainly result in injustice. An analysis must still be made as to whether the questioned action is something that would not have occurred absent negligence or whether it is in within the realm of common experience that such an event could only occur if someone was negligent. Here, the plaintiff does not challenge the insertion of the guide wire by the Interventional Radiologist. She did not challenge how the guide wire had become dislodged. She challenges Dr. Wormuth’s judgment as to how best to proceed, claiming that he failed to use appropriate skill, knowledge and training by not utilizing imaging studies in an effort to better isolate the location of the fragment and proceed surgically to remove it. 21 The Appellate Division and Trial Court both factually determined that the plaintiff’s sole challenge was the judgment Dr. Wormuth made. She could not and did not suggest that the dislodgment was caused by Dr. Wormuth because so many others were involved prior to his involvement. The guide wire was not placed by Dr. Wormuth. He was responding to a circumstance which confronted him and the patient challenged his treatment plan. Res ipsa loquitur was not appropriate. 22 B. Plaintiff failed to establish her claims through Dr. Wormuth’s testimony. Finally, plaintiff s contention that she has established a prima facie case of medical malpractice through the testimony of Dr. Wormuth is without merit. "The requisite elements of proof in a medical malpractice action are a deviation or departure from the accepted community standards of practice, and evidence that such deviation or departure was a proximate cause of injury or damage." Castro v. NYC Health & Hosp. Corp., 74 A.D.3d 1005, 1006 (2d Dept. 2010). Further, a medical malpractice theory of liability "must be supported by expert medical testimony that there was a deviation from the standard of care." Lidge v. Niagara Falls Mem. Med. Ctr., 17 A.D.3d 1033, 1035 (4th Dept. 2005). The plaintiff was thus required to offer expert medical testimony to establish a deviation from the standard of care. Plaintiff failed to provide any expert testimony at trial. Instead, plaintiff claims that she relied on Dr. Wormuth’s testimony as expert testimony against himself. Her efforts in that regard are to no avail as Dr. Wormuth’s testimony makes it clear that he felt he acted appropriately by pursuing the course he felt was in the plaintiff s best interest once he discovered the wire had dislodged: A. I made a judgment that she would be better served if we abandoned the wire in place and, if necessary, came back at a later time to take it out; my experience being that people tolerate wire in their chest wall or abdominal cavity without problem. There is a long history of using suture, metal sutures to close 23 abdominal wounds and chest incisions. I’ve had in my practice occasion to leave temporary pacemaker wires trimmed off at the skin, and I thought that trying to make a bigger incision was going to cause more direct and certain pain and discomfort than attempting to leave this small fragment of wire in place. (R. 291-93). Nothing in Dr. Wormuth’s testimony can reasonably interpreted as establishing a deviation from the standard of care. By contrast, his testimony explains his judgment, the reason for that judgment, and points out that such judgment was in keeping with a long history of practice. As such, no reasonable jury could infer from Dr. Wormuth’s testimony that he established a deviation from the standard of care. The plaintiff thus failed to establish a prima facie case of medical malpractice by failing to offer any expert testimony establishing the standard of care or a deviation from that standard. As discussed infra, her claims were not subject to the doctrine ofres ipsa loquitur. It follows that she failed to establish a prima facie case of medical malpractice by any means. 24 CONCLUSION For the forgoing reasons, it is respectfully submitted that the Trial Court properly granted the defendants’ motion to dismiss for failure to establish a prima facie case of medical malpractice, and the Appellate Division properly affirmed that ruling. It is therefore respectfully requested that this Court affirm the decision of the Appellate Division. Daniel P. Z’arab-~, Esq. MARTIN, GANOTIS, BROWN, MOULD & CURRIE, P.C. Attorneys for Defendants- Respondents DAVID WORMUTH, M.D. and CNY THORACIC SURGERY, P.C. Office and P.O. Address 5790 Widewaters Parkway Dewitt, New York 13214 (315) 449-2616 25