Senior Trial Partners, Thomas A. Mobilia and Aryeh S. Klonsky, and Partner Gregory A. Cascino, secured summary judgment in a case where it was alleged MCB’s client, a vitreoretinal surgeon, negligently recommended and performed epiretinal membrane peel surgeries on plaintiff’s right eye, without her consent, on October 9, 2018 and December20, 2018, and negligently recommended and performed epiretinal membrane peel surgery on her left eye on March 26, 2019. MCB also represented the ambulatory surgery center where the surgeries were performed. The plaintiff alleged the surgery center was negligent for failing to have necessary surgical instruments available at the time of the first surgery.
After the first epiretinal membrane peel surgery was unsuccessful, our client recommended attempting the procedure a second time utilizing a different surgical instrument. The plaintiff secretly recorded a post-operative discussion with our client and alleged that the video supported her claim that the necessary pre-operative testing to measure her eye was not performed, and our client failed to obtain informed consent for surgery.
MCB’s summary judgment motion was supported with the expert affirmation of a vitreoretinal surgeon, who opined our client appropriately recommended and performed epiretinal membrane peel surgery, and appropriately obtained informed consent. The expert also opined the surgery center stocked all appropriate surgical instruments and equipment. Further, the expert opined the plaintiff's injuries were not proximately caused by the alleged malpractice.
In opposition, plaintiff submitted the affirmation of a general ophthalmologist. This “expert” opined our client was negligent for failing to measure the axial length of the eye prior to surgery, and negligent for failing to obtain informed consent. Plaintiff further argued this alleged negligence caused permanent visual disturbances.
In reply, we asserted the plaintiff's expert was not qualified to render an opinion as to the standard of care in vitreoretinal surgery. In support, we submitted prior testimony from plaintiff's expert where he admitted he does not perform epiretinal membrane peel surgery because it is outside the area of his expertise, and that he defers to vitreoretinal surgeons in this regard
The court granted our motion for summary judgment, adopting our arguments in full, holding that plaintiff's expert's affirmation was deficient and the expert incompetent to render an opinion as to the standard of care in vitreoretinal surgery.