Defendants Farr Nezhat, M.D., Adam J. Flisser, M.D., and The Mount Sinai Hospital ("Mt. Sinai") (collectively referred to as "Defendants") move for summary judgment in their favor, pursuant to C.P.L.R. § 3212. At oral argument of the motion on March 11, 2008, plaintiffs agreed to withdraw their cause of action for informed consent.

This is an action for medical malpractice which arises from the treatment of plaintiff, Shirley Scoca. Plaintiff originally commenced this action against defendants Nezhat, Flisser and Mt. Sinai. After issue was joined and a verified bill of particulars was served, the parties were deposed. At his December 20, 2006 deposition, Dr. Nezhat testified that in his opinion, the injury to plaintiff's right ureter, which is the subject of this action, was caused during a procedure performed on September 25, 2003 by Richard N. Ashley, M.D. Plaintiff then commenced a new action against Dr. Ashley and Richard N. Ashley, M.D., P.C., in February 2007. By order dated May 1, 2007, the actions were consolidated under the above index number. [*2]

In July 2003, plaintiff Shirley Scoca, who was then 50 years old, was diagnosed with Stage IB1 cervical cancer. It is undisputed that the necessary course of action was the performance of a radical hysterectomy.^[FN1] Plaintiff alleges that shortly after her diagnosis, in August, she consulted with Dr. Nezhat at Mercy Medical Center ("Mercy"). Dr. Nezhat, an employee of Mt. Sinai, was also treating patients at Mercy's clinic, in accordance with an agreement between both hospitals.

Since the cancer was confined to the cervix and no larger than 4cm, Dr. Nezhat recommended the performance of a laparoscopic radical hysterectomy, which plaintiff agreed to, since she was told she would have a shorter recovery time and be able to return to her daily activities sooner than she would if she had traditional open surgery. Dr. Nezhat noted that plaintiff was experiencing stress urinary incontinence,^[FN2] and recommended a consultation with another specialist to evaluate plaintiff and determine whether surgical correction was indicated.^[FN3]

Plaintiff consulted with Dr. Flisser, a urogynecologist employed by Mt. Sinai. Dr. Flisser confirmed the diagnosis, and recommended a pubovaginal sling (a strip of tissue to suspend or elevate the bladder neck and posterior urethra) to treat the stress urinary incontinence. It was arranged that Dr. Flisser would perform his portion of the surgery at the conclusion of Dr. Nezhat's performance of the hysterectomy.

Plaintiff was admitted to Mt. Sinai on September 5, 2003. Following the respective surgical procedures on September 5, plaintiff remained at the hospital until she was discharged on September 7. At the time of her discharge, there was a suprapubic catheter in place to drain the urine accumulating in plaintiff's bladder. At her follow-up visit with Dr. Nezhat on September 15, plaintiff complained of abdominal pain and constipation, together with an inability to urinate. Dr. Nezhat prescribed a laxative and anti-gas medication. The next day, plaintiff went to Mercy for x-rays of her abdominal region. Following the tests, she called Dr. Nezhat, complaining of significant abdominal pain and distention; he instructed her to go to Mercy's emergency room, and she was admitted to Mercy that day. Over the next few days, CT scans of plaintiff's abdomen and pelvis were performed, both of which demonstrated a small bowel obstruction. Plaintiff states that according to the radiologist, there was no evidence of hydronephrosis (dilation of a kidney from obstruction to the flow of urine) or extravasation of contrast material on the films. A Foley catheter was inserted after the suprapubic catheter was removed, because plaintiff was unable to urinate on her own. Urinary leakage continued over the next few days; it was determined that the leakage was coming from a right ureterovaginal fistula. [*3]

On September 22, 2003, Dr. Zito performed a laproscopic procedure to treat the small bowel obstruction. He noted that a loop of plaintiff's small intestine was "kinked" and adherent to the right pelvic region. An indigo carmine intravenous dye injection was performed intraoperatively and no extravasation of dye was detected in the operative field. Plaintiff continued to experience urinary leakage, and it was noted that the amount of leakage from the vaginal area increased. A tampon test was performed, which, according to the hospital notes, indicated that there was leakage. Defendants assert that for the first time, a question was raised as to whether the dye was from a ureteral injury.

On September 25, 2003, a urological consult from Dr. Richard Ashley was requested. Dr. Ashley testified at his deposition that he at first suspected a right ureterovaginal fistula, based on plaintiff's complaints of urinary leakage from her vagina and pain on the right side of her body. On September 25, Dr. Ashley performed a cystoretrograde ureteroscopy to evaluate plaintiff's urinary tract. During the procedure, a retrograde pyelogram was performed; Dr. Ashley injected indigo carmine dye into the ureteral orifices and then observed via fluoroscopy. The procedure showed dye leaving the right ureter into the retroperitoneum, going into the fistula, and then coming down through the vagina. Dr. Ashley then inserted a ureteroscope into the patient's right ureter and discovered that the scope came out of the distal ureter into the retroperitoneum. The operative report sets forth that "[t]here was no continuity of the ureter" and that his impression was of ureterovaginal fistula with either "complete occlusion or transection of the ureter."

After a failed attempt for the placement of a percutaneous nephrostomy on September 26, 2003, a second attempt on September 29 by Dr. Ashley was successful. An attempt to stent the right ureter transection on October 1, 2003 was unsuccessful. Plaintiff was discharged from Mercy on October 3, 2003, with a right nephrostomy tube and a Foley catheter in place.

Dr. Ashley continued to care for plaintiff after her discharge from Mercy. At a visit on October 6, Dr. Ashley removed the Foley catheter; following the removal of the catheter, plaintiff was unable to urinate spontaneously. The catheter was replaced the following evening after plaintiff returned to Mercy's emergency room because of urinary retention. On October 8, plaintiff returned to Dr. Ashley, who instructed her on how to catheterize herself in order to drain her bladder. Subsequently performed urodynamic studies revealed that the nerves supplying plaintiff's bladder were damaged to the extent that she had no bladder sensation and was unable to urinate spontaneously.

On December 18, 2003, Dr. Ashley performed surgery on plaintiff at Winthrop University Hospital to repair her right ureter, assisted by Drs. McLenan and Garely. During the surgery, the right ureter was found to be intact at the level of the infundibulopelvic ligament, where the ovarian vessels had been cut, tied off, and secured within scar tissue. Dr. Ashley testified at his deposition that in the time between he placement of the nephrostomy tube and this surgery, the ureter had healed or "grew back" together on its own. Dr. Ashley also stated that there was no identification of any residue of pubovaginal sling or suture material from Dr. Flisser's procedure.

In June 2005, Dr. Garely performed additional surgery on plaintiff, whereby he placed an Interstim sacaral nerve root stimulator in an attempt to treat her non-functioning bladder. In January 2006, Dr. Garely performed the pubovaginal sling procedure. Although plaintiff acknowledges that [*4]her ability to urinate on her own has improved following surgery, she continues to self-catheterize because she cannot empty her bladder when she urinates. Plaintiff testified at her June 2006 deposition that she continues to have fecal seepage, but she no longer has urinary stress incontinence.

The party moving for summary judgment in a medical malpractice action must make a prima facie showing of entitlement to judgment as a matter of law by showing the absence of a triable issue of fact as to whether the defendant physician was negligent. Alvarez v. Prospect Hosp.,

68 NY2d 320, 324 (1986). Once the movant satisfies this burden, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Id. (citation omitted). Specifically, this requires, in a medical malpractice action, that a plaintiff opposing a physician's summary judgment motion

must submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he was not negligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact. . . . General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant physician's summary judgment motion.

Id. at 324-25 (citations omitted).

In support of the motion, defendants submitted an affirmation by Scott W. Smilen, M.D., a physician board certified in Obstetrics and Gynecology. Defendants' medical expert notes that a ureterovaginal fistula is a known and recognized complication of a radical hysterectomy. He notes that the cause of plaintiff's development of the fistula is unknown, but there is "overwhelming" evidence that no transection of the ureter occurred during the surgery performed on September 5, 2003. He further sates that there is no evidence that any direct ureteral injury occurred during the September 5 surgery. Finally, he states that if the ureterovaginal fistula occurred after the September 5 surgery, it was not diagnosable at the time of the procedures performed by Defendants.

Dr. Smilen further notes that during plaintiff's admission to Mercy, two CT scans were performed, on September 16 and 18; there was no evidence that she had either a ureteral transection or ureterovaginal fistula. A dye injection study was performed during the surgery performed on September 22, 2003 by Dr. Zito; this dye study did not reveal a transected ureter or ureterovaginal fistula. Dr. Smilen opines that these studies would have revealed a transected ureter or ureterovaginal fistula, if present. Defendants maintain that the CT scans on September 16 and 18 provide "conclusive radiological evidence that the ureters were without injury at this time."

Defendants here met their burden as summary judgment proponents. The doctors submitted an expert affidavit. The expert concluded, after reviewing all relevant documents, medical records and the transcript of plaintiff's examination before trial, that there was no departure from the standard of care, and no proof of injury following Dr. Nezhat's and Dr. Flisser's procedures. Defendants maintain that the CT scans on September 16 and 18 provide "conclusive radiological [*5]evidence that the ureters were without injury at this time."

Having established a prima facie showing of entitlement to summary judgment, the burden shifts to plaintiff to assert a genuine issue of material fact as to whether the proper standard of care was used. There is no dispute that the hysterectomy performed on plaintiff was a necessary procedure. The question is whether the procedure was performed properly, whether the transection occurred during the surgery, and whether an injury to the ureter is a known complication of the surgery that was performed.

In response to the motion, plaintiff's medical expert notes that because of the close anatomical relationship between the lower urinary tract and the internal genitalia, the ureter is at particular risk for injury during either procedure that was performed. He asserts that the standard of care requires that ureters be identified, protected, and preserved during gynecologic surgery, and notes that intraoperative injuries to an unprotected ureter can commonly occur during such surgery. He opines that Drs. Nezhat and Flisser departed from accepted standards of care by failing to properly identify and protect plaintiff's right ureter during her gynecological surgery, which caused the transection. The expert further opines that Dr. Nezhat failed to timely and properly suspect, investigate, and diagnose the injury to plaintiff's right ureter and ureterovaginal fistula prior to September 25, 2003. These departures, plaintiff's expert contends, were substantial contributing factors in causing plaintiff to incur subsequent procedures and therapies, and, as plaintiff also alleges unnecessary pain and suffering.

Plaintiff's expert further notes that it is not at all surprising that the CT scans performed on September 16 and 18 failed to reveal the transected right ureter and/or a ureterovaginal fistula, since such a test would not be expected to demonstrate such a finding. He points out that the CT was ordered to evaluate plaintiff's suspected small bowel obstruction, and not her urinary system. The CT performed on September 16 was performed without contrast; Dr. Nezhat testified that if you want to evaluate the ureter and bladder, contrast must be utilized. Even Dr. Ashley noted during his deposition that aside from direct visualization of the bladder via a cytoscope and ureteroscope, the only way to determine if a urinary fistula exists is to inject dye directly into the urinary system.

In addition to plaintiff's expert's affidavit, plaintiff's counsel points to the depositions of the defendant doctors which, counsel asserts, raise questions of fact precluding the granting of summary judgment. At his deposition, Dr. Nezhat testified that the results of the dye test performed on September 24 revealed leakage from either the vagina or the catheter, but the notes indicate that the leakage appeared to be from the catheter. Dr. Nezhat further opined, within a reasonable degree of medical certainty, that the ureterovaginal fistula did not develop until the time that Dr. Ashley's procedure was performed on September 25, 2003.^[FN4] In other words, Dr. Nezhat testified that there was no evidence in the chart that plaintiff had a ureterovaginal fistula until she was operated on by [*6]Dr. Ashley and that the fistula or perforation occurred during Dr. Ashley's procedure. Dr. Ashley testified, however, that at the time he performed the procedure on September 25, there was a ureterovaginal fistula. He further testified that there was a complete transection of the right ureter. Finally, he testified that he told the family that Dr. Nezhat caused the fistula.

Even assuming arguendo that a transection of the ureter is a known risk of a hysterectomy, plaintiff's expert asserts that the failure to recognize and identify the injury is a breach of the standard of care. Moreover, the defendant doctors each assert that the other surgeon's procedure caused the injury to the ureter. See Santiago v. Brandeis, 309 AD2d 621, 622 (1st Dep't 2003). Since there is an issue of fact as to the alleged malpractice, the motion must be denied.

The motion for summary judgment is denied. The conference scheduled for April 29 is adjourned. The parties are directed to appear for a pre-trial conference on May 6, 2008, at 9:30 a.m. This constitutes the decision and order of the court.

Dated: April, 2008

______________________________

Joan B. Lobis, J.S.C.