Marguerite James, Appellant,v.David Wormuth, M.D., and CNY Thoracic Surgery, P.C., Respondents.BriefN.Y.May 28, 2013ARGUMENT TIME REQUESTED: 15 MINUTES ORAL ARGUMENT BY WOODRUFF CARROLL BREIF COMPLETED ON SEPTEMBER 23, 2012 STATE OF NEW YORK COURT OF APPEALS _______________________________________________________________ Marguerite James Plaintiff-Appellant v. David Wormuth and CNY Thoracic Surgery Inc. Defendants-Respondent ________________________________________________________________ REPLY BRIEF OF THE PLAINTIFF APPELLANT MARGUERITE JAMES 2005 2858 ________________________________________________________________ Woodruff Lee Carroll Esq. Attorney for Margureite James The Galleries 441 South Salina St. Syracuse, N.Y. 13202 1-315-474-5356 Daniel P. Laraby Esq. Attorney for Defendant David Wormuth and CNY Thoracic Surgery Inc. Martin, Ganotis, Brown, Mould, Currie 5790 Widewaters Parkway Syracuse, N.Y. 13214 1-315-449-2616 FULL COURT PRESS TABLE OF CASES AND AUTHORITIES 4 QUESTIONS PRESENTED 5 STATEMENT OF FACTS 6 PRIMA FACIE CASE 6 PROCEDURAL POSTURE 6 THE FACTS 6 ADDITIONAL FACTS 9 ARGUMENT POINT I 11 AFTER PROVING RES IPSA LOQUITUR THE PLAINTIFF IS NOT RESTRICTED TO A SINGLE THEORY OF NEGLIGENCE POINT II 14 THIS IS A FOREIGN OBJECT CASE POINT III 14 THE AGREEMENT WITH THE DOCTOR SUPPORTS THE PLAINTIFFS POSITION POINT IV 15 THE PLAINTIFF PROVED A PRIMA FACIE CASE POINT V 17 THE JUDGEMENT CHARGE IS INAPPLICABLE AND UNPROVEN POINT VI 20 1 THE JURY COULD INFER FROM HE EVIDENCE THAT THE DOCTOR LOST THE WIRE, COULD NOT FIND IT AND THEREFORE LEFT IT IN POINT VII 20 DEFENDANT DID NOT ARGUE THAT JUDGMENT WAS INVOLVED IN LOSING THE WIRE POINT VIII 21 THE DECISION TO NOT REMOVE THE WIRE WAS NOT A CHOICE BETWEEN MEDICALLY ACCEPTABLE ALTERNATIVES POINT IX 22 THE JUDGMENT CHOICE CLAIMED BY THE DEFENDANT IS A RED HERRING POINT X 24 THE JUDGMENT CHARGE IS NOT A COMPLETE DEFENSE ON THESE FACTS POINT XI 24 THE DEFENDANT'S CLAIMS OF A JUDGMENT DECISION IS FACTUALLY UNSUPPORTED POINT XII 25 THE DEFENDANT HAS SHOWN NO REASON FOR AN EXPERT POINT XIII 25 THE TORTFEASOR HAS NEVER 2 RECEIVED MORE LENIENT TREATMENT BECAUSE HE KNEW HIS ACTIONS COULD INJURE SOMEBODY POINT XIV 26 PLAINTIFFS PRESENTED AND THE DEFENDANT DEFENDED A RES IPSA LOQUITUR CASE POINT XV 29 CONCLUSION 3 TABLE OF CASES AND AUTHORITIES Kambat v St Francis Hospital 89 N.Y.2d 489 655 N.Y.S.2d 844 11, 12, 15, 24, 29 Rockefeller v Moront 81 N.Y.2d 560, 618 N.E.2d 119, 601 N.Y.S.2d 86. 4, 14, 29 4 QUESTIONS PRESENTED Can the Defendant unilaterally restrict the Plaintiff to a single theory of negligence? Is this a foreign object case? Does the physician's judgment rule apply to res ipsa loquitur? Is an expert necessary in this case? Does tort law reward a tortfeasor when he knows his actions are intentional instead of negligent? Did the Plaintiff waive anything? 5 STATEMENT OF FACTS PRIMA FACIE CASE Defendant admits the wire was lost in the Plaintiff. (R.353, 347) The Defendant admitted that the Plaintiff was unconscious and not contributorily negligent. (R. 298) The Defendant attorney and the Defendant doctor admit that the physician was in control of the operation. (R. 312, R. 298) PROCEDURAL POSTURE The case was dismissed at the close of Plaintiffs case without the Defendant putting in his case or any proof of the judgment charge or Plaintiffs cross examination of defendants witnesses. (R. 26) THE FACTS Pursuant to the medically accepted method for doing this biopsy operation (the same procedure as a breast biopsy (R. 273, 278)) and under the control of Dr. Wormuth the camera guide wire was intentionally inserted into the Plaintiff to guide the camera and locate the lesion that needed to be removed and tested for cancer. (R. 273) The wire was intended to be removed at the end of the operation. (R. 291, 292) Instead the wire remained in the patient for two months causing considerable pain, suffering and loss of business. (R. 210-216) The cause of losing the wire is unknown. The record states that it was retained in the chest wall. (R. 280) The wire may have become dislodged and lost during transport to the operating room or when the physician trimmed the wire to the skin or 6 just it pulled out of the lung when the lung was deflated or due to some other unreported event and was retained in the chest wall. (R. 280, 281, 282) But when they tried to find the wire to locate the lesion on the deflated lung the wire had became disconnected from the lung and was lost in the patient. (R. 280-282) The exact cause of the wire pulling out of the lung is unknown. (R. 281, 282) If the biopsy procedure is done correctly there is no wire left in the Plaintiff at the end of the operation. (R. 275, 277) But, in this case there was a wire lost and left in the patient. (R. 285, 280-283) The physician tried for 20 minutes to find the wire visually and with gloved hands without using a readily available x-ray C-arm (R. 291) that could locate the wire before he gave up. ( 285-288, 290, 291) reasoning he could remove the wire later and maybe the wire would not be a problem. ( R. 292) The patient was removed from the operating room. Either the physician x-rayed the patient and he knew where the wire was before he sewed her up or he sewed the Plaintiff up then did the x-ray (the record can be read either way because the sworn testimony is silent on when this x-ray was taken in relation to the termination of the surgery). (Defendants Brief page 6, R.305, 306) But an x-ray was done the day of the operation and the wire was found circled in black on the x-ray. (R. 305, 306) But, the patient was unconscious and the physician then decided to leave the wire in rather than remove it. (R. 289) He allegedly reasoned that the wire was harmless and a large painful incision was needed to remove it. (R. 7 289, 288) Both assertions were proved incorrect at a later time in that only a 3 mm incision was needed and the wire was painful. ( R. 347, 210-216) The patient experienced substantial pain and lost revenue from the wire and was unable to work and lost a large number of clients. (R. 210-217) Pursuant to the patients request a second operation was scheduled. The removal procedure for the wire required locating the wire with a C-arm x-ray machine then making a tiny 3 mm incision (not a larger incision as represented by the physician) . (R. 290) The procedure was not very painful and was over in several hours and she returned to work pain shortly thereafter. (R. 210-217) The second operation cured the pain and allowed her to work again. (R. 215) The operation was admittedly (both by the doctor and Defense attorney) under the complete control of the Defendant physician (R. 312, 298) and the Plaintiff patient was unconscious the entire time and had no say in any of the events. (R.298) On the day of the wire was improperly lost, improperly searched for, then found by an x-ray machine after the operation. The doctor knew the wire was in the patient and sewed it into the patient without obtaining a x-ray machine from down the hall to find it in a timely manner. On trial the Defendant argued in his motion to dismiss that R. 310- 321): 1. Plaintiff had failed to state a cause of action (R. 310) 2. An expert was required to prove Standard of card (R. 310, 311) 3. Case was too complicated for a jury (R. 312) 4. I was claiming res ipsa loquitur (with no mention of a waiver) (R. 312) 8 5. He misquotes the Delaney case (R. 314) 6. States that because the wire was left in intentionally as a act of judgment that allows the judgment charge to be used as a defense ( R. 315) 7. Not a foreign object (R. 314) The Defense attorney admitted that Wormuth was in complete control of the operation, agreeing with the testimony of Dr. Wormuth. (R. 312) Plaintiff replied that: 1. This was a classic foreign object res ipsa loquitur case (claimed at least four times) (R. 316, 317, 319, 320) and that a simple theory of negligence was present that was so simple that an expert was not required. (R. 316) 2. One of the acts of negligence was so simple it did not require any more expert testimony than had already been given by the doctor (R. 316 et seq.) The defendant attorney did not argued that I had waived res ipsa loquitur nor did the court mention it. (R. 310-321) The trial judge held that the case was too complex for the jury to decide without expert testimony. ( R. 26) ADDITIONAL FACTS The defendant has liberally quoted and cited from the deposition that was not been admitted into evidence over Defendants objection. (See page 146, 293 et seq. of the record.) The deposition is at pages 875 et seq. of the record. I have not argued for its admissibility on appeal to this court. 9 Either those statements are disregarded as inadmissible or I get to use the record to additionally claim that a reasonable inference of negligence is that the doctor was unable to locate the wire because he was not properly trained at the time of the operation in how to use the c-arm to find it. Based on the quote that he figured this out with a radiologist after the operation.(Defendants Brief 7, R. 938) Nor is the post operation x-ray testified to at page 306 of the trial transcript proven to be the x-ray report in the record at page 848 as stated in the Defendants Brief. 10 POINT I AFTER PROVING RES IPSA LOQUITUR THE PLAINTIFF IS NOT RESTRICTED TO A SINGLE THEORY OF NEGLIGENCE Kambat v St Francis Hospital 89 N.Y.2d 489 655 N.Y.S.2d 844 states: To rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that “it is more likely than not” that the injury was caused by defendant's negligence (Restatement [Second]of Torts § 328 D, comment e). Stated otherwise, all that is required is that the likelihood of other possible causes of the injury “be so reduced that the greater probability lies at defendant's door” (2 Harper and James, Torts § 19.7, at 1086). Res ipsa loquitur thus involves little more than application of the ordinary rules of circumstantial evidence to certain unusual events (see, Prosser and Keeton, Torts§ 40, at 257 [5th ed] ), and it is appropriately charged when, “upon ‘a common sense appraisal of the probative value’ of the circumstantial evidence, * * *[the] inference of negligence is justified” (George Foltis, Inc. v. City of New York,287 N.Y. 108, 115, 38 N.E.2d 455). ...................................... We agree with the Appellate Division dissenters, moreover, that defendants' evidence tending to rebut the three conditions did not disqualify this case from consideration under res ipsa loquitur (see, Fogal v. Genesee Hosp., 41 A.D.2d 468,476, 344 N.Y.S.2d 552 [Simons, J.] ). Plaintiffs were not obligated to eliminate every alternative explanation for the event. Defendants' evidence that they used due care and expert testimony supporting their competing theory that decedent might have had access to laparotomy pads and inflicted the injury upon herself by swallowing the pad merely raised alternative inferences to be evaluated by the jury in determining 11 liability (see, Sweeney v. Erving, 228 U.S. 233, 240, 33 S.Ct. 416,418, 57 L.Ed. 815). The undisputed fact remained in evidence that a laparotomy pad measuring 18 inches square was discovered in decedent's abdomen: “[f]rom this the jury may still be permitted to infer that the defendant's witnesses are not to be believed, that something went wrong with the precautions described, that the full truth has not been told” (Restatement [Second] of Torts §328 D, comment n). Thus, the inference of negligence could reasonably have been drawn “upon ‘a common sense appraisal of the probative value’ of the circumstantial evidence,” and it was error to refuse plaintiffs' request to charge res ipsa loquitur (George Foltis, Inc. v. City of New York, 287 N.Y. at 115, 38 N.E.2d 455, supra). The jury can review all the facts and decide among multiple theories of negligence and the defendants conflicting proof etc. The Defendants theory of the case is to involuntarily restrict the Plaintiff to one theory, preferably an indefensible one. As shown by Kambat this is incorrect law and grounds for reversal. The Plaintiff does not need to specify negligence in a res ipsa case. But there is plenty: 1. Searching with fingers and hands instead of timely using an x-ray (R. 288) 2. Trimming the wire to the skin rather than leaving a tail for easy removal after deflating the lung (R. 281) 3. Not using the x-ray machine before he sewed the Plaintiff up (knowing the wire was in the Plaintiff) (Defendants brief page 6, not argued in two lower courts, using information from a deposition not admitted into evidence per defendants objection) or using the x-ray to locate the wire then sewing the Plaintiff up (R. 306) (The Plaintiff gets the inference in his favor.) 12 4. Intentionally leaving the wire in the Plaintiff (R.21, 29) 5. Losing the wire (R. 289) 6. Whether he was properly trained for the operation to retrieve a lost wire (R. 938 again from the deposition that was not admitted into evidence See Defendants brief page 7) in that he may not have known the proper procedure for locating a lost wire which is negligent training because he had to consult the radiologist to learn the c-arm procedure after the operation. 13 POINT II THIS IS A FOREIGN OBJECT CASE The uncontested proof indicates that this wire was inserted as part of the accepted medical procedure and like a laparotomy pad. Like the pad the wire was intended to be removed. Something went wrong and the wire was lost then left in the patient. The wire was not left in for treatment purposes: it was because it was lost or the doctor decided not to remove it. This removes it from the medical fixation device group of cases that were left in deliberately as part of the treatment, albeit incorrectly. See Rockefeller v Moront 81 N.Y.2d 560, 618 N.E.2d 119, 601 N.Y.S.2d 86. POINT III THE AGREEMENT WITH THE DOCTOR SUPPORTS THE PLAINTIFFS POSITION This was not argued in any lower court. (R. 310-321) The Plaintiff did not expressly agree to have the camera wire left in her as part of the procedure nor is there any evidence she was informed and agreed to the wire being left in. Nor is there testimony that she was informed that leaving the camera wire in her was part of the procedure. Something went wrong and the wire was not where it was supposed to be. The doctor either could not find the wire before he sewed up the Plaintiff or decided to leave it in the Plaintiff. Further, the clause gives the doctor all the discretion he needs to get an x-ray machine, locate the wire, remove it and put this matter right. The agreement does not give him authority to go beyond the agreed procedure and leave a foreign body in the Plaintiff. Nor is it a defense to malpractice. 14 POINT IV THE PLAINTIFF PROVED A PRIMA FACIE CASE The Plaintiff must establish the three conditions needed to prove a prima facie case (Kambat v St Francis Hospital 89 N.Y.2d 489 655 N.Y.S.2d 844): 1. Event must be of a kind that ordinarily does not occur absent negligence 2. Caused under the exclusive control of the Defendant 3. No contributory negligence of the Plaintiff If there are multiple causes they need not be eliminated just that it is more likely than not that the injury was caused by Defendants' negligence upon consideration of a common sense appraisal of the probative value of the evidence. The jury infers negligence from the circumstances of the occurrence. No expert is necessary because a prima facie case can be inferred by a layman. The first condition was proven per the Court of Appeals decision in Kambat v St Francis Hospital (89 N.Y.2d 489 655 N.Y.S.2d 844) as follows: Manifestly, the lay jury here did not require expert testimony to conclude that an 18–by–18–inch laparotomy pad is not ordinarily discovered inside a patient's abdomen following a hysterectomy in the absence of negligence.Thus, plaintiffs' undisputed proof that this occurred satisfied the first requirement of res ipsa loquitur. We therefore need not resolve today the question whether res ipsa loquitur is applicable in medical malpractice cases in which the jury is incapable of determining whether the first res ipsa loquitur condition has been met without the aid of expert testimony. As to control: The Defense attorney admitted control: (R. 312) 15 I have submitted a memorandum of law to the court and counsel, and I submit that this is not a case that is appropriate for res ipsa because, although there has been testimony that certainly the patient was under anesthesia and that the operation was under the control or supervision of the doctor, The Doctor admitted control and testified: (R. 298) Q. Okay. And you were in control of the operation at all times? A. Yes. No one claims that the Plaintiff was contributorily negligent she was unconscious. A wire does not ordinarily occur in the Plaintiff absent negligence. The presence of the wire is admitted. No expert is needed to prove that the wire did not belong in the Plaintiff and that it should not have been lost, not found or left there. Leaving the wire served no treatment purpose. Leaving the camera wire in the patient was not part of the medically accepted procedure for the biopsy. But admittedly the wire was left in intentionally. The wire was not located until after the patient was sewed up and removed from the operating room because did not use the c-arm that was available down the hall. 16 POINT V THE JUDGEMENT CHARGE IS INAPPLICABLE AND UNPROVEN It is undisputed that the doctor knew the wire was in the patient when he terminated the operation and sewed it into the patient. He alleges it was a choice between a large painful incision or a harmless wire. Plaintiff argues that the choice is a red herring because a proper search with an x-ray machine would have found the wire and stated options are both untrue and medically unacceptable, the wire never should have been lost in the first place and the judgment charge rule and the res ipsa loquitur rule are mutually exclusive. The judgment charge is as follows (Pattern Jury Charge 2:150): A doctor is not liable for an error in judgment if (he, she) does what (he, she) decides is best after careful evaluation if it is a judgment that a reasonably prudent doctor could have made under the circumstances. In other words, a doctor is not liable for malpractice if he or she chooses one of two or more medically acceptable courses of action. The judgment defense does not automatically apply every time a physician has a thought or has to reason his way through a situation. The PJI 2:150 states: The fifth paragraph of the Charge (“error in judgment”) should not be charged unless there is a showing that defendant considered and chose among several medically acceptable alternatives, ........................ The fact that defendant physician's diagnosis or treatment involved the exercise of medical judgment does not by itself provide a basis for giving an “error in 17 judgment” charge, Anderson v House of Good Samaritan Hospital, supra. Further, it is improper to give the “error in judgment” charge when the evidence simply raises the issue of whether defendant physician deviated from the degree of care that a reasonable physician would have exercised under the same circumstances, .................. _________________________ When used in the context of medical malpractice litigation, the term “error in judgment” is something of a misnomer, as it is not properly used in a case where the issue involves a claimed misjudgment by the defendant practitioner, Rather, the so-called “error in judgment” rule represents a narrow principle of law that protects medical practitioners from liability when they are sued for making non-negligent choices among medically acceptable alternatives, Where alternative procedures are available to a physician, any one of which is medically acceptable and proper under the circumstances, there is no negligence in using one rather than another, To be distinguished from true “error in judgment” cases involving choices among medically acceptable alternatives are those in which the term “error in judgment” or a similar formulation is used but the real question is simply whether the practitioner's treatment represented a permissible exercise of medical judgment, The “error in judgment” charge implies the exercise of some judgment in choosing from among two or more available, medically acceptable alternatives, Thus, it should not be given unless there is a showing that defendant considered and chose among several medically acceptable alternatives, (“error in judgment” charge improper where neither party contended that ligation of renal artery was 18 acceptable alternative means of treatment); Anderson v House of Good Samaritan Hospital, 44 AD3d 135, 840 NYS2d 508 (citing PJI) (“error in judgment” charge improper where claim involved physician's alleged misdiagnosis and there was no issue as to whether physician had failed to use best judgment in choosing among medically acceptable alternatives); Martin v Lattimore Road Surgicenter, Inc., supra (citing PJI) (“error in judgment” charge appropriate only in narrow category of cases in which there is evidence that defendant physician considered and chose among several medically acceptable treatment alternatives); Grasso v Capella, 260 AD2d 600, 688 NYS2d 666 (where there was no evidence that defendant surgeon had to consider and choose among medically acceptable alternatives, trial court properly refused to give “error in judgment” charge); see Capolino v New York City Health & Hospitals Corp., 199 AD2d 173, 605 NYS2d 87 (“error in judgment” charge should have been given where it was possible for jury to determine that there was more than one course acceptable under medical standards at time of treatment); Petko v Ghoorah, 178 AD2d 1013, 580 NYS2d 668 (court did not err in giving “error in judgment” charge where each party's expert testified to acceptable methods of diagnosing and treating condition). It is improper to give the “error in judgment” charge when the evidence simply raises the issue of whether defendant physician deviated from the degree of care that a reasonable physician would have exercised under the same circumstances, Martin v Lattimore Road Surgicenter, Inc., supra. No such showing has been made. There is not a single word of testimony containing the words "medically acceptable" in the transcript. 19 POINT VI THE JURY COULD INFER FROM THE EVIDENCE THAT THE DOCTOR LOST THE WIRE, COULD NOT FIND IT AND THEREFORE LEFT IT IN The record supports the inference that the doctor negligently lost the wire, could not find it, ran out of time and decided that if there was a problem he could remove it later. He claims a judgment defense but the facts involves no judgment. See Point IX et al. The actions of the Defendant are a logical result of a losing the wire. It was not medically acceptable to lose the wire, it was not medically acceptable to fail to find it and reasoning we can straighten this out later if we have to is hardly a defense to the malpractice of losing the wire in the first place. (R. 292) The doctor states: I was not able to localize it, 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 POINT VII DEFENDANT DID NOT ARGUE THAT JUDGMENT WAS INVOLVED IN LOSING THE WIRE The Defendants do not even attempt argue that there is judgment involved in losing the wire. The judgment charge is completely inapplicable to losing the wire in the first place. It is not medically acceptable to lose the camera guide wire in the patient and not retrieve it. (R. 310-321) The judgment charge should not be applied. 20 POINT VIII THE DECISION TO NOT REMOVE THE WIRE WAS NOT A CHOICE BETWEEN MEDICALLY ACCEPTABLE ALTERNATIVES The alleged act of judgment is choosing between leaving a wire that Defendant claims was harmless or removing the wire which that Defendant alleges would be painful. There is no testimony saying: 1. Medically acceptable to lose the wire in the first place 2. Medically acceptable to not use an portable x-ray to search for it 3. Medically acceptable to leave the wire in the patient on these facts 4. Medically acceptable to make a larger incision rather than a 3 mm incision or to use the same cut 5. Or that it was medically acceptable to put the plaintiff in this position in the first place The record is silent on what is medically acceptable. Without that there can be no issue of physician's judgment. 21 POINT IX THE JUDGMENT CHOICE CLAIMED BY THE DEFENDANT IS A RED HERRING Common sense can resolve the eliminating judgment issue because this choice is a red herring: both proffered alternatives are false. Reality subsequently showed that the wire was painful and had to be removed. The removal required a small 3 mm incision not a larger incision. (R. 290, 347) The removal was not particularly painful. (R. 215) Juries are routinely given decisions of credibility when testimony contradicts reality. No expert testimony is needed to understand a three millimeter incision is not as painful and a larger incision is more painful or that both are more painful than retrieving the wire from the patient during the first operation using the original incision. (295, 296 ) It is medically unacceptable to leave a wire in the Plaintiff. Expert testimony adds little to this case. The Plaintiff does not need to specify negligence in a res ipsa case. But there is plenty: 1. Searching with fingers and hands instead of timely using an x-ray (R. 288) 2. Trimming the wire to the skin rather than leaving a tail for easy removal after deflating the lung (R. 281) 3. Not using the x-ray machine before he sewed the Plaintiff up (knowing the wire was in the Plaintiff) (Defendants brief page 6, not argued in two lower courts, using information from a deposition not admitted into evidence per defendants 22 objection) or using the x-ray to locate the wire then sewing the Plaintiff up (R. 306) (The Plaintiff gets the inference in his favor.) 4. Intentionally leaving the wire in the Plaintiff (R.21, 29) 5. Losing the wire (R. 289) 6. Whether he was properly trained for the operation to retrieve a lost wire (R. 938 again from the deposition that was not admitted into evidence See Defendants brief page 7) in that he may not have known the proper procedure for locating a lost wire which is negligent training because he had to consult the radiologist to learn the c-arm procedure after the operation. The jury as a matter of common experience has had x-rays done. In fact, so many people have had this procedure done (on breasts or other parts of their body) they are expert on the procedure. Regrettably, there was no record made of this during the jury draw. The testimony show the wire in an x-ray from the day of the operation. The portable c-arm x-ray machine found the wire in the second operation and it was removed. A jury can readily infer that the same x-rays done on the day of the operation and the second operation would have enabled the wire to have been located during the operation and removed with a 3 mm incision. There was no contrary testimony. 23 POINT X THE JUDGMENT CHARGE IS NOT A COMPLETE DEFENSE ON THESE FACTS The judgment charge is only being asserted to one of a multitude of decisions the doctor made: The one to leave the wire in. It is not being asserted against the negligence that caused the wire to be present in the first place or the other possible charges. Further, while in this case an inquiry has been made as to what possible underlying negligence there is in res ipsa loquitur, the rule is that the Plaintiff does not have to specify negligence, if he does not want to. (Kambat v St Francis Hospital 89 N.Y.2d 489 655 N.Y.S.2d 844) Counsel just felt he was ahead with the jury and the court, to avoid spectculation. POINT XI THE DEFENDANT'S CLAIMS OF A JUDGMENT DECISION IS FACTUALLY UNSUPPORTED The factual basis for the judgment charge is without foundation. The doctor claims a larger incision was needed to locate and remove the wire but second operation only required a 3 mm incision and mosquito forceps to retrieve the wire. (R. 290) The second operation is not even that painful. (R. 215) The wire not harmless and was painful. It was found wrapped around a muscle and when removed muscle tissue cam with it. (R. 264, 304) The muscle was in the Plaintiffs chest (R. 391, 264) and that is why she could not cut hair without pain. (R. 24 192) The doctor performed the second operation because it was hurting the Plaintiff. (R. 299, 289) POINT XII THE DEFENDANT HAS SHOWN NO REASON FOR AN EXPERT The alleged judgment decision was shown above to be a matter easily decided within the knowledge of a jury. (see supra) A larger incision incision vs a 3 mm incision: the jury needs to decide which would be more painful or whether it was more or less painful to remove the wire the day of the first operation through the original incision. Everyone on the planet knows the answer. Small incision hurt less, same incision under anesthetic even less. Next issue: Should the wire be left in or out? Everyone knows that too. Take it out. The portable x-ray machine (c-arm) was explained and was admitted to be readily available. (R. 291) The x-rays more than adequately showed the that the wire appeared on x-rays (circled in black on one) and the c-arm was used to find the wire in the second operation. (R. 305, 306) No expert is needed. POINT XIII THE TORTFEASOR HAS NEVER RECEIVED MORE LENIENT TREATMENT BECAUSE HE KNEW HIS ACTIONS COULD INJURE SOMEBODY In many of these res ipsa cases the object is found after the fact in the patient causing serious injury and there is no proving how it got there or what the state of mind of the physician was at the time the item was lost. In this case we cannot prove how the 25 wire was lost either but the doctor knew it was in the patient. Then decided to leave it. The act of deliberately deciding to leave the foreign object in the patient is hardly such a laudatory act are to entitle the doctor to the benefits of the more complicated case for the plaintiff to prove of ordinary negligence and benefits of the judgment defense. Between a doctor who had a miscount of pads and missed one (as distinct from the doctor who forged/fudged the count and hoped no one ever noticed) and a doctor who decided to leave the foreign object he knew was in the Plaintiff intentionally. The latter doctor is more at fault and should not be relieved from his additional fault by a rewarding him amore defensible case by making the Plaintiff prove the standard of care, which requires experts, greater expenses, more time and much, much more complicated. This reasoning of granting the more at fault tortfeasor a benefit by making the proof more complex for the plaintiff is contrary to every known principal underlying the field of tort. There is no concept of rewarding tortfeasors who are more at fault by making the Plaintiff have a higher standard of proof because their behavior was intentional rather then just negligent. (See original brief on gross negligence) POINT XIV PLAINTIFFS PRESENTED AND THE DEFENDANT DEFENDED A RES IPSA LOQUITUR CASE The Defendant did not move to dismiss the Plaintiff's case on grounds that anything had been waived at trial. (R. 310) The word waiver or a synonym did not even appear in the motion to dismiss argument. 26 The Defendant moved to dismiss the res ipsa loquitur claim on the grounds of (R 312 et seq.): I have submitted a memorandum of law to the court and counsel, and I submit that this is not a case that is appropriate for res ipsa because, although there has been testimony that certainly the patient was under anesthesia and that the operation was under the control or supervision of the doctor, the element that is missing here is the idea that when we have a complication such as this, when a wire has dislodged from the lung through no fault of the doctor, certainly there has been no suggestion and absolutely no testimony that any error in technique caused that wire to become dislodged. The focus has been on the decision once Plaintiff argued at (R. 316) (Plaintiff) that this is: A. a simple negligence case and B. a Res ipsa Loquitur was proven Plaintiffs argued stated at (R. 316) So I think we have shown beyond any doubt that this is a standard res ipsa case And again at (R. 317) So I think that this is sufficient to go to the jury on both negligence in terms of ordinary negligence and sufficient to go to the jury in terms of a res ipsa case, And yet again at (R. 320): That's the ordinary negligence issue. The res ipsa issue is whether or not the jury should be allowed, based on the fact that it's in that category of cases, that res ipsa applies here, in that a foreign object should not have been left in the plaintiff was l eft there, as to whether they are allowed to continue on to infer from that what then 27 negligence might have been without -- on the proof. That's how it works in a res ipsa case. Defendant argued a motion to dismiss against the res ipsa loquitur case. Plaintiff repeatedly asserted it was a res ipsa loquitur case. There was no waiver of res ipsa loquitur and the record cannot be construed as such. (R. 316-321) I repeatedly asserted Res Ipsa Loquitur in the argument against the motion to dismiss repeatedly. 28 POINT XV CONCLUSION In the end this case is no different that any other foreign object res ipsa loquitur case and should be treated as a routine result based on existing law except that the Defendant admits he intentionally left the wire in. This does not entitle the Defendant to more lenient treatment than if there was a mistake made or a new defense. He should receive more severe treatment for being an intentional tortfeasor in keeping with the fundamental principals of tort. Rockefeller v. Moront 81 N.Y.2d 560, 618 N.E.2d 119, 601 N.Y.S.2d 86 and Kambat (supra) are the controlling cases and they show error as a matter of law. The Plaintiff proved a prima facie case of res ipsa loquitur and was entitled to to a jury for a verdict without the judgment charge or an expert. The judgment charge does not apply on these facts. There is no reason for an expert to testify on the facts of this case since there are numerous theories of negligence present a jury could decide without an expert. Nothing about the doctor making decisions to cure or mitigate the consequences of the original act of negligence is grounds giving for the judgment charge. The act of deliberately deciding to leave the foreign object in the patient is hardly such a laudatory act are to entitle the doctor to the defenses and benefits of a higher standard of proof for the Plaintiff or an additional defense mandating dismissal. The case should be remanded for a trial and sent to a jury. 29 30 WoodurfTLee Carroll Carroll & Carroll Attorney for Plaintiff Marguerite James The Galleri es 44 I South Salina St. Syracuse, N.Y. 13202 1-3 15-474-5356 STATE OF NEW YORK APPELLATE DIVISION, FOURTH DEPARTMENT MARGUERITE JAMES, Plaintiff, v. DAVID WORMUTH, ET AL., Defendant. STATE OF NEW YORK ) COUNTY OF ONONDAGA ) ss: AFFIDAVIT OF MAILING DOCKET NO.: CA 11-00813; CA 11-00814 I, Julia Zimmer, being duly sworn, deposes and says that deponent is not a party to this action, is over 18 years of age, and resides Syracuse, New York, 13206. That on the 15th day of February, 2013 deponent served three copies of Reply Brief of the Plaintiff Appellant Marguerite James upon: Daniel P. Laraby, Esq. Martin, Ganotis, Brown, Mould, Currie 5790 Widewaters Parkway Syracuse, NY 13214 by depositing the same enclosed in a postpaid properly addressed wrapper, with first class postage, in a post office-official depository under the exclusive care and custody of the United States Post Office Department within the State of New York. Sworn to and subscribed before me on this 15th day of February, 2013 2~Jl&; tiJJ.utt dJ'oTARY P BLIC JOHN fl[NJAMIN CARROLL Notcuv Pubrtc, State of NC:·N 'Iork Qualified in MadiSOn CoL;n:y r~o. O~CA4:id~,qg.· My Commissicn Expires AUJL•>! 5, ];Pl.,~ t!J'zimmer