Rozon v. Schottenstein

• Decision Date: 01 March 2022
• Docket Number: Appeal No. 14777,Index No. 805014/16,Case No. 2020-04996
• Citation: 204 A.D.3d 94,164 N.Y.S.3d 124
• Parties: Carola ROZON, Plaintiff-Respondent, v. Edwin M. SCHOTTENSTEIN, M.D., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

204 A.D.3d 94

164 N.Y.S.3d 124

Carola ROZON, Plaintiff-Respondent,

v.Edwin M. SCHOTTENSTEIN, M.D., Defendant-Appellant.

Appeal No. 14777

Index No. 805014/16

Case No. 2020-04996

Supreme Court, Appellate Division, First Department, New York.

ENTERED March 1, 2022

Ekblom & Partners, LLP, New York (Neil H. Ekblom and Hillary C. Agins of counsel), for appellant.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac and Paul H. Seidenstock of counsel), for respondent.

Dianne T. Renwick, J.P., Angela M. Mazzarelli, Anil C. Singh, Manuel J. Mendez, John R. Higgitt, JJ.

MENDEZ, J.

Plaintiff sued defendant, an ophthalmological surgeon who specializes in the eye's anterior chamber,¹ for medical malpractice to recover for injury to her right eye caused by defendant's negligence while performing cataract removal and lens replacement surgery on December 31, 2013. Plaintiff alleges that as a result of defendant's malpractice in removing a six-millimeter Intra-Ocular Lens (IOL) through a 2.75-millimeter incision and the resultant excessive manipulation of the eyeball, she sustained a retinal tear, which developed into a giant retinal tear and retinal detachment, and eventually became legally blind in her right eye.

Defendant had previously performed a successful cataract removal and lens replacement surgery on plaintiff's left eye on July 16, 2013. As in the previous cataract removal and lens replacement surgery, the December 31, 2013 surgery was performed using phacoemulsification, a technique by which the tip of an ultrasonic machine, a phaco probe, is inserted into the lens through a small incision in the anterior chamber. The machine's vibrations break up the hard, inner portion of the lens (nucleus) that is affected by the cataract and then the lens is extracted with irrigation and suction, leaving the capsular bag² filled with fluid.

Defendant initiated plaintiff's surgery by making a 2.75-millimeter incision in the anterior chamber. He successfully removed most of the nucleus of the cataract lens using phacoemulsification, but two complications arose during the surgery: (1) the bottom of the capsular bag tore and (2) a piece of the lens dropped through the tear into the back of the eye, eventually requiring that a vitreoretinal surgeon³ remove it.

After those complications defendant injected a folded six-millimeter IOL into plaintiff's eye, but it was off-center and displaced towards the back, and he decided to remove it by using a holding forceps (instead of a folding forceps) and pulling the unfolded six-millimeter IOL through the same 2.75-millimeter incision he had made to insert it. The incision was not enlarged to the size of the six-millimeter IOL.

Defendant did not immediately obtain the assistance of a vitreoretinal surgeon to address the complications that arose during the surgery because it was late on New Year's Eve. Therefore, on January 2, 2014, two days after the surgery, defendant referred plaintiff to a vitreoretinal surgeon for removal of the dropped piece of lens and placement of the IOL from the back of the eye. On that day the vitreoretinal surgeon examined her and noted signs of trauma to the eye, including corneal edema and blood from a vitreous hemorrhage. Importantly, neither defendant nor the vitreoretinal surgeon noted any injury to the iris. The vitreoretinal surgeon was unable to visualize the back of the eye because of the vitreous hemorrhage and used a B-scan ultrasound⁴ to create an image of the back of the eye so he could determine if there were any retinal tears. According to the vitreoretinal surgeon the B-scan ultrasound did not detect any retinal tears. Therefore he scheduled a follow-up appointment for the following week.

On January 9, 2014, there was still blood in the eye from the vitreous hemorrhage, but the vitreoretinal surgeon did not perform another B-scan ultrasound. He stated that with the use of a fundoscope he was able to see well enough to the back of the eye, saw the piece of lens that had fallen - but did not see a tear or a giant retinal tear - and scheduled surgery for January 15, 2014.

During that surgery the vitreoretinal surgeon, whose goals were to remove the blood remaining in the vitreous fluid, remove the fallen piece of lens and insert an IOL, noted a choroidal effusion⁵ that necessarily had to be drained. Once the choroidal effusion was drained, he visualized a superiorly placed (top of the eye) giant retinal tear and retinal detachment, which he attempted to repair. The vitreoretinal surgeon performed five additional unsuccessful surgeries on plaintiff's eye to repair the giant retinal tear and retinal detachment over the course of a year. Ultimately, she lost the vision in her right eye.

This malpractice action was commenced on January 7, 2016 and the jury trial took place between November 12 and November 26, 2019. At trial, plaintiff presented as her expert an ophthalmological surgeon, who opined that the removal of the six-millimeter IOL through the 2.75-millimeter incision, and the related manipulations of plaintiff's eye, caused trauma that substantially increased the risk of, and was the cause of a retinal tear with a subsequent retinal detachment. He further opined that the vitreous hemorrhage and corneal edema visualized on January 2 by the vitreoretinal surgeon is proof of the trauma to plaintiff's eye and the injury to plaintiff's retina, and was caused by the negligence of defendant.

Plaintiff's expert opined that the excessive manipulation of the eye in removing the six-millimeter IOL through a 2.75-millimeter incision caused a small superiorly placed retinal tear which was not visualized by defendant at the end of the New Year's Eve surgery because he was not looking at that part of her eye; that the vitreoretinal surgeon also did not visualize the small retinal tear on January 2 or January 9; and that this tear gradually grew to become the giant retinal tear visualized by the vitreoretinal surgeon during the January 15 surgery.

Plaintiff's expert further opined that the vitreoretinal surgeon would not have been able to see a small retinal tear on January 2, because the B-scan ultrasound is generally not used to diagnose retinal tears, and they cannot be seen on B-scan ultrasounds. He opined that to see a retinal tear using a B-scan ultrasound the situation would have to be ideal and near perfect, with an experienced retinologist looking for it. He testified that a B-scan ultrasound is only effective at identifying giant retinal tears, and the larger the tear the more likely the displacement of tissue, making it easier to see. As to January 9, plaintiff's expert stated that a small superiorly placed retinal tear would not have been visualized because there was still vitreous hemorrhage in plaintiff's eye and the primary focus of the vitreoretinal surgeon was the back of plaintiff's eye to look for the fallen piece of lens, not looking at the top of her eye for a retinal tear. He opined that retinal detachment occurred at some point after the retinal tear and could have happened during the period between January 9 and its discovery on January 15.

The vitreoretinal surgeon testified - on behalf of defendant - that due to the vitreous hemorrhage, his ability to see to the back of the eye was hampered on January 2, therefore a B-scan ultrasound was performed, and no retinal tears were visualized. He conceded that the B-scan ultrasound he performed on January 2 was not an effective way to visualize small retinal tears, particularly those that have not moved and are in the superior position. He also conceded that retinal tears are more difficult to pick up than retinal detachments on a B-scan ultrasound. However, on January 9 a B-scan ultrasound was not necessary because with the use of a fundoscope, looking through the small opening in the pupil, and although there was still blood in plaintiff's eye, he was able to see the piece of lens that had fallen to the back of the eye, was able to visualize the retina and would have seen any giant retinal tear if one existed. If he was not able to visualize the retina, he would have done a B-scan ultrasound.

The vitreoretinal surgeon testified that he did not know how the giant retinal tear and retinal detachment occurred between January 9 and January 15, and although he claimed to have a theory about the cause, he did not state it. He only said something must have happened that caused plaintiff's eye pressure to drop, although she had not reported any recent trauma to the eye other than the surgery of December 31, 2013.

Defendant presented two additional expert witnesses, a vitreoretinal surgeon and an ophthalmological surgeon. Defendant's vitreoretinal expert testified that retinal tears that are tractional in origin will typically have a flap of the retina that can be visualized as a small indentation on a B-scan ultrasound ; however, a retinal tear with no flap would not be picked up by the B-scan ultrasound. Defendant's expert ophthalmological surgeon testified that if vitreous fluid pulled into the anterior chamber were not a strand but just a blob that was not big enough to distort the pupil, it is not likely for a retinal tear to have been visible to defendant or to the vitreoretinal surgeon on either January 2nd or January 9th.

Defendant appeals from an order, which denied his post trial CPLR 4404(a) motion to set aside the jury's verdict and for judgment in his favor or for a new trial. In denying defendant's motion, Supreme Court found there existed a valid line of reasoning and permissible inferences that could possibly lead a rational person to the conclusion that defendant committed malpractice, and the malpractice was the cause of plaintiff's injuries. Supreme Court further determined that the opinion of plaintiff's expert reflected an acceptable level of certainty and that the disputed testimony and evidence raised issues that were properly addressed by the jury. We agree and therefore...