## Facts

- Kenneth E. Sitts experienced chronic lower-back and left-leg pain and was treated at a Veterans Administration hospital in Syracuse, New York.
- Diagnostic testing led physicians to diagnose a bulging or herniated disk at the L5–S1 level, and surgery was recommended to remove the bulging material.
- In November 1978, a VA orthopedic resident performed a laminectomy but operated at the wrong spinal level, removing material at S1–S2 rather than L5–S1.
- Sitts’s symptoms persisted; subsequent imaging disclosed the wrong-level surgery.
- In October 1979, a second operation removed bulging material at L5–S1.
- The United States conceded the first surgery was performed at the wrong level, but presented testimony that the surgeon used the standard professional technique for locating the operative level (palpating to locate the sacrum and then counting vertebrae), and that wrong-level selection can occur even when the accepted method is followed.
- After exhausting administrative remedies, Sitts filed an FTCA medical malpractice action in the Northern District of New York alleging negligent performance of the 1978 operation and resulting injury.
- The district court granted the government summary judgment because Sitts identified no expert witness to establish negligence or causation under New York law, and it denied Sitts additional time to depose the surgeon who performed the 1979 operation.

## Issues

1. Under New York medical malpractice law applied through the FTCA, is expert medical testimony required to prove negligence and causation when the alleged malpractice concerns the technical method of locating the correct spinal level for surgery?
2. Was summary judgment proper where the government supported its motion with medical deposition testimony regarding accepted technique and Sitts offered no expert, asserting the negligence was within lay understanding?
3. Did the district court abuse its discretion by denying additional time for discovery before ruling on summary judgment?

## Decision

- The Second Circuit affirmed the grant of summary judgment to the United States.
- The court held that this case did not fit the narrow category of malpractice claims that a factfinder can evaluate without expert testimony.
- Because the standard of care for identifying the operative spinal level and the causal link between the alleged deviation and injury were beyond lay competence, Sitts’s failure to produce an expert warranted judgment as a matter of law.
- The court found no abuse of discretion in denying additional discovery time because Sitts did not show a concrete basis to believe further discovery would supply the necessary expert proof.

## Legal Principles

- In New York medical malpractice actions, except for matters within ordinary lay knowledge, expert medical testimony is generally required to establish (1) the applicable standard of care, (2) deviation from that standard, and (3) causation.
- An adverse medical outcome alone, including surgery at an unintended anatomical level, does not automatically permit a lay inference of negligence when evaluation depends on technical professional methods and risks.
- Summary judgment is appropriate when the moving party supports the motion with evidence of compliance with accepted practice and the nonmoving party lacks required expert proof to create a triable issue on negligence or causation.
- A district court’s denial of additional time for discovery is reviewed for abuse of discretion; additional discovery must be shown likely to produce evidence material to the summary-judgment issues.

## Conclusion

The Second Circuit held that wrong-level spine surgery presented technical questions about surgical localization methods and medical causation requiring expert testimony under New York law; because the plaintiff identified no expert and did not justify further discovery as a likely source of such proof, summary judgment for the United States was affirmed.


Sitts v. United States, 811 F.2d 736 (2d Cir. 1987)