PETERS, P.J.
Appeal from a judgment of the Supreme Court (Kramer, J.), entered July 2, 2015 in Schenectady County, which granted a motion by defendants Elaine Cheon-Lee and Carenet Medical Group, P.C. for a directed verdict.
In 2006, plaintiff was experiencing pain in her abdominal area and presented to defendant Elaine Cheon-Lee, an obstetrician-gynecologist, for treatment. After an ultrasound revealed a cyst on plaintiff's right ovary, Cheon-Lee performed a surgery to remove the ovary and plaintiff's right fallopian tube. Cheon-Lee also diagnosed plaintiff with endometriosis, a
In the weeks following the March 2009 surgery, plaintiff complained of pain, nausea, fevers and vomiting to Cheon-Lee, who eventually ordered a blood test, discovered an abnormality and referred plaintiff to her primary care physician. On May 12, 2009, a CAT scan revealed that plaintiff's urine was not properly draining out of her left kidney — a condition referred to as hydronephrosis — because her left ureter, a tube which brings urine from the kidney to the urinary bladder, was blocked. Attempts to treat plaintiff's kidney proved ineffective and, in November 2013, plaintiff underwent a surgery to remove her left kidney.
Plaintiff commenced this action in August 2011, alleging, among other things, that Cheon-Lee was negligent in performing the 2009 surgery and in failing to detect or diagnose the blocked ureter. Plaintiff also relied on the doctrine of res ipsa loquitur to establish the fault, liability and negligence of Cheon-Lee. At trial, plaintiff presented expert testimony to support three theories of negligence: that Cheon-Lee failed to identify and isolate the left ureter during the surgery, that she failed to recognize an injury to plaintiff's left ureter during the surgery and that she failed to recognize the injury to the left ureter during the postoperative period. At the close of plaintiff's proof, Cheon-Lee and Carenet Medical Group (hereinafter collectively referred to as defendants) moved for a directed verdict, contending that plaintiff failed to establish that Cheon-Lee's alleged negligence proximately caused plaintiff's injuries. Supreme Court agreed, finding that the testimony of plaintiff's expert that Cheon-Lee's alleged negligence in clamping, cutting and suturing plaintiff's left ureter was unsupported by the record, granted defendants' motion and dismissed the complaint against them in its entirety. Plaintiff appeals.
A directed verdict is only appropriate "when, viewing the evidence in a light most favorable to the nonmoving part[y]
Initially, we find that Supreme Court properly concluded that plaintiff failed to establish as a matter of law that Cheon-Lee's alleged negligence in failing to identify and isolate plaintiff's left ureter caused her alleged injuries. It is undisputed that, when removing the ovary and fallopian tube, the surgeon must cut the infundibulopelvic (hereinafter IP) ligament, which attaches the ovary to the pelvic wall. Because the IP ligament carries with it significant blood supply, prior to cutting it, it must be clamped off to prevent any bleeding. After the ligament is cut, each of its ends must be sutured to control bleeding.
At trial, John DiOrio, a board certified obstetrician-gynecologist who testified as plaintiff's expert, repeatedly and "unequivocal[ly]" asserted that plaintiff's injuries were caused by Cheon-Lee's failure to identify plaintiff's left ureter during the March 2009 surgery, which Cheon-Lee then clamped and cut together with the left IP ligament. In DiOrio's own words:
This conclusion, however, was in direct conflict with plaintiff's own proof. Plaintiff's treating urologist, Brian Murray, testified that, on August 12, 2009, when performing surgery to remove the drainage tube and insert a stent between plaintiff's left kidney and bladder, he accessed and visualized plaintiff's left ureter. According to Murray, the ureter had not been cut, as evidenced by the ureter being "still one piece" and the absence of any suture material in it. Murray's conclusion was supported by a pathologist's report to the effect that the ureter had not been cut but rather appeared to have collapsed onto itself, causing the blockage. Inasmuch as the opinion of plaintiff's expert was in direct conflict with plaintiff's own proof, Supreme Court properly determined that there was a complete absence of evidence with respect to causation pertaining to plaintiff's first theory of negligence (see Peluso v C.R. Bard, Inc., 124 AD3d at 1030-1031; Nichols v Stamer, 49 A.D.3d 832, 833-834 [2008]; Brown v Bauman, 42 A.D.3d 390, 392 [2007]; Lipsius v White, 91 A.D.2d 271, 279 [1983]).
However, Supreme Court erred when it dismissed the complaint in its entirety, as plaintiff's trial proof established a prima facie case of medical malpractice on two other theories of negligence — namely, that Cheon-Lee failed to recognize an injury to plaintiff's left ureter both when performing the surgery and during the postoperative period.
Plaintiff's final theory of liability was premised on Cheon-Lee's alleged failure to diagnose the blockage of plaintiff's left ureter during her postoperative visits. It is well settled that, "[w]here, as here, the plaintiff alleges that the defendant negligently failed or delayed in diagnosing and treating a condition, a finding that the negligence was a proximate cause of an injury to the patient may be predicated on the theory that the defendant thereby `diminished [the patient's] chance of a better outcome'" (Clune v Moore, 142 AD3d at 1331, quoting Wolf v Persaud, 130 A.D.3d 1523, 1525 [2015]; see Goldberg v Horowitz, 73 A.D.3d 691, 694 [2010]; Borawski v Huang, 34 A.D.3d 409, 410 [2006]).
Plaintiff's postoperative discharge note, dated March 5, 2009, indicated as follows: "Post-op course complicated by nausea. Question, secondary to narcotics? Resolved post-op day number three." Cheon-Lee conceded that the "question mark" in that note signified that she was unsure whether plaintiff's nausea was related to narcotic medications. In the days and weeks following the March 2009 surgery, plaintiff again complained to Cheon-Lee of pain, nausea, fatigue and loss of appetite. Cheon-Lee likewise admitted in her testimony that plaintiff presented with these symptoms and that she did not diagnose plaintiff's ureteral obstruction, and acknowledged that she does not routinely diagnose and treat ureteral obstructions.
"Whether or not res ipsa loquitur was applicable here, plaintiff presented sufficient evidence of negligence to go to the jury" on two of her three theories of liability (Lo Presti v Hospital for Joint Diseases, 275 A.D.2d 201, 203 [2000]; see Babits v Vassar Bros. Hosp., 287 A.D.2d 670, 671-672 [2001]). Upon the evidence submitted, Supreme Court properly rejected plaintiff's first theory of liability as a matter of law at the close of plaintiff's proof, yet provided no explanation for dismissing the entire complaint, and we can perceive none under the circumstances of this case given the existence of two viable and independent theories of liability that were supported by sufficient trial proof (cf. Law v Moskowitz, 279 A.D.2d 844, 845-847 [2001]). Accordingly, plaintiff is entitled to a new trial as against defendants on the second and third theories of liability.
Ordered that the judgment is reversed, on the law, without costs, motion denied and matter remitted to the Supreme Court for a new trial.