In this "breach of contract" action arising out of surgery performed by defendant Mohamed Nizam, M.D. on plaintiff Paula Dubose at defendant North General Hospital, those defendants as well as remaining defendant, Toni Olasewere, M.D., move for an order dismissing this action on the grounds of res judicata and based on a release signed in a prior medical malpractice action commenced by Dubose and her husband against these same defendants arising out of the same surgery in issue in the instant action. The defendants also seek to have sanctions imposed on Dubose for bringing a frivolous action.

The surgery in issue was performed by Dr. Nizam on February 9, 2004. The consent form signed by Dubose that day indicated that the surgery to be performed was a laparoscopy and an ovarian cystectomy with a "possible oophorectomy". The surgical report dictated and transcribed on February 9th indicates that during the procedure the right ovarian dermoid cyst ruptured and that all dermoid cyst material was removed. Dr. Nizam decided to remove the right ovary which was difficult to do because of adhesions. Dubose had previously had surgery in 2000 to remove bilateral periovarian adhesions. See operative report of 4/14/00 Because of the density of the adhesions during the February 9th procedure Dr. Nizam noted in his report that some ovarian tissue may have been left behind. The pathology report of February 11, 2004 diagnosed, inter alia, a right ovary with a dermoid cyst.

It appears that Dubose was discharged on February 13, 2004 with instructions to follow up in the gynecology clinic on February 18, 2004. See Doctor's Order Sheet of 2/13/04 A CT of Dubose's pelvis and abdomen were done on February 20, 2004 and as a result a wound infection was diagnosed. See Radiology report of 2/20/04

In May 2005 Dubose and her husband commenced a medical malpractice action in connection with the medical care rendered by the defendants from about February 9th through March 4, 2004. See Complaint in prior action ¶ 18 In that proceeding it was alleged, inter alia, that defendants had failed to provide proper medical care and treatment, performed improper and contraindicated procedures and had failed to obtain a proper informed consent. The husband [*2]asserted a derivative claim. A certificate of merit was appended to the complaint in the prior action.

On December 8, 2005 Dubose and her husband settled the malpractice action for $44,000.00 and signed a stipulation discontinuing the action with prejudice and a release of all claims. At oral argument it was indicated that little discovery had been done in the prior action and that no bills of particular had been served. The release discharged the defendants "from any and all actions, cause of action, claims or demands for damages... on account of, or in any way growing out of any and all known personal injuries resulting or arising out of, or in any way connected with my activities at North General Hospital, and injuries that may have resulted from an incident in the course of those activities on or about February 9, 2004, and all medical care rendered as a result thereof." Dubose and her husband further "acknowledge[d] and assume[d] all risk, chance or hazard that the said injuries or damage may be or become permanent, progressive, greater or more extensive than is now known, anticipated or expected." See motion, Exh. B

Dubose now claims that on February 9, 2004 she "entered into a contract with defendants... to remove a dermoid cyst from her abdomen". Dubose does not reveal which defendants entered into this contract or the words or circumstances surrounding the alleged offer and acceptance. Dubose then states that she signed a consent form on February 9, 2004 in which it was recited that an ovarian cystectomy was consented to. It is not clear if Dubose is claiming that the consent form constituted the contract to remove her ovarian cyst. In any event she maintains that after the February 9th surgery "defendants" advised that in order to remove the cyst they also had to remove the right ovary.

Dubose claims that in May 2005 she became pregnant and was having continuing pain on her right side which continued after her daughter's birth, which led to the performance of a sonogram on August 22, 2006 which allegedly revealed the presence of her right ovary and a right ovarian cyst (See ultrasound report of August 22, 2006), which cyst Dubose claims is the same dermoid cyst allegedly removed by Dr. Nizam in 2004. Based on the foregoing Dubose, represented by the same attorney who represented her in the malpractice action, commenced the instant action asserting that the defendants breached their contract to remove the dermoid cyst. Plaintiff seeks damages for the pain, disability and medical monitoring allegedly caused by the failure to remove the cyst. See complaint ¶23, 27; Krawitz aff. ¶a17, 20

Defendants move to dismiss the action based on res judicata and release and also seek sanctions due to the commencement of a frivolous lawsuit. Dubose opposes the motion citing cases where releases were sought to be vacated because of mutual mistakes or fraud, but Dubose explicitly does not want the release vacated. See Krawitz aff. ¶ 36 Dubose's counsel further maintains that the release only pertained to injuries known to Dubose at the time of the release.

Dubose's counsel's position is without merit. If he believed that some fraud had been committed in obtaining the release and in entering into the stipulation of discontinuance, or that there was a mutual mistake he was free to move for any relief he believed was appropriate to have the release or stipulation vacated [See e.g. Mahon v NYCH & HC, 303 AD2d 725 (2nd Dept, 2003). However plaintiff does not want the release or stipulation vacated and therefore presumably neither she, her husband nor her counsel wants to return the $44,000. Plaintiff and her counsel can not have their cake and eat it too. [*3]

Having chosen to live with the stipulation resolving the malpractice action, and the release which clearly covered injuries greater and more extensive than she knew, Dubose is barred by the release and principles of res judicata from maintaining the current action here where both cases are predicated on related facts and transactions, in that, both cases stem from the February 9, 2004 surgery (See O'Brien v City of Syracuse, 54 NY2d 353). Presumably defendants would not have settled the medical malpractice action which arose from the February 9th surgery if they believed that Dubose would be able to sue them again under a different theory involving the same surgery. A stipulation of discontinuance with prejudice can have res judicata effect. See Nottenberg v Walber, 160 AD2d 574 (1st Dept, 1990)

Accordingly, this action is dismissed. In the exercise of my discretion I decline to impose sanctions pursuant to CPLR § 8303 a(c)(ii). While this action may have been misguided I do not find that it was made in bad faith. Nonetheless, motion costs in the amount of $100 is awarded to defendants. See CPLR §8202.

Settle order.

Dated:February _____, 2008

60 Centre Street

New York, NY

J.S.C.