Baldwin v. Gretz
| Decision Date | 16 November 1978 |
| Citation | 65 A.D.2d 876,410 N.Y.S.2d 394 |
| Parties | Colleen C. BALDWIN et al., Appellants, v. Herbert F. GRETZ, Jr., Respondent, and St. Clare's Hospital et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Nicholas J. Grasso, Schenectady, for appellants.
Martin, Ganotis, Amsler & Brown, Syracuse (George F. Mould, Syracuse, of counsel), for respondent.
Before MAHONEY, P. J., and SWEENEY, KANE, LARKIN and HERLIHY, JJ.
Appeal from an order of the Supreme Court at Special Term, entered December 6, 1977 in Schenectady County, which granted a motion by defendant Gretz for summary judgment dismissing the complaint against him.
The underlying action is one for alleged medical malpractice against defendant Herbert F. Gretz, Jr. and others. Basically, it is alleged that defendants negligently left a surgical sponge within plaintiff Colleen Baldwin's vagina following the delivery of her child. It is also alleged that defendants failed to detect the presence of the sponge.
The pertinent facts are essentially undisputed. Dr. Gretz did not participate in the delivery of the child on August 6, 1971. He saw Mrs. Baldwin on two occasions following delivery, including the date of her discharge from the hospital which he authorized. On August 13, 1971, some three days after her discharge from the hospital, Dr. Gretz examined Mrs. Baldwin and removed the sponge. On deposition, Dr. Gretz also testified he was an employee of the other two defending physicians. There is also testimony in the record by Dr. Gretz that he did not perform a pelvic examination on the date of discharge and that to his knowledge it was not the usual procedure to conduct such an examination prior to discharging a patient. There is also an affidavit of an obstetrician-gynecologist that the care and treatment rendered by Dr. Gretz was entirely consistent with the standards of good and accepted medical care in the area in 1971. Plaintiffs rely on the pleadings, bill of particulars and the depositions of Mrs. Baldwin and Dr. Gretz. The general allegations of malpractice, however, were merely conclusory, unsupported by competent evidence tending to establish the essential elements of medical malpractice. Furthermore, plaintiffs failed to submit an affidavit of merits when accorded an opportunity by Special Term. We also reject plaintiffs' contention that the doctrine of Res ipsa loquitur is applicable. The order should be affirmed (see Snelson v....
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