Summary
In Critelli v. Long Island Jewish Hillside Med. Ctr., 115 A.D.2d 632, 496 N.Y.S.2d 290 (2nd Dep't 1985), a laparotomy pod was left behind.
Summary of this case from Barrera v. StewartOpinion
December 23, 1985
Appeal from the Supreme Court, Queens County (Le Vine, J.).
Order affirmed, with costs.
Appellant Leonard Burson, practicing "by and through" appellant Metropolitan Surgical Group, P.C., has failed to negate, as a matter of law, the inference of negligence that may be drawn as a result of his failure to observe and remove a laparotomy pad, measuring 100 to 144 square inches, which he had placed in the plaintiff's abdomen during surgery (see, Benson v Dean, 232 N.Y. 52, 56; Blackburn v Baker, 227 App. Div. 588). Appellant physician's pretrial deposition arguably raises triable issues of fact with respect to the issue of liability (cf. Freeman v Easy Glider Roller Rink, 114 A.D.2d 436). Under these circumstances, appellants' motion for summary judgment was properly denied, despite the fact that plaintiff did not submit an affidavit of a medical expert (see, Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851, 853). Gibbons, J.P., Bracken, Brown and Lawrence, JJ., concur.