August 20, 2019

The New York Appellate Division, First Department (“New York Appellate Court”), in its opinion filed on July 30, 2019, affirmed the trial court’s denial of summary judgment to the defendant, stating “The motion court correctly denied defendant’s motion to dismiss the malpractice claim based on the claimed failure to properly aspirate.”

The Underlying Facts

On March 24, 2015, the New York medical malpractice defendant, a plastic surgeon, performed fat transfers to areas of the plaintiff’s face during an elective cosmetic procedure. One of the known risks of this procedure is that fat could enter a blood vessel and migrate to the eyes, causing blindness. Upon awakening from anesthesia, the plaintiff complained of pain in her left eye and decreased vision. The plaintiff was immediately taken to an ophthalmologist, who observed fat in some of the vessels of the retina. The next day, the plaintiff went to a neuro-ophthalmologist, who determined that the plaintiff had “lost vision from a central retinal artery occlusion secondary to fat embolism.”

The plaintiff filed her New York medical malpractice case alleging that as a result of the defendant’s negligence in injecting the fat into her face, she suffered permanent loss of vision in her left eye. The plaintiff alleged that the defendant failed to properly aspirate during the administration of fat. At his deposition, the defendant explained that aspiration is the technique of drawing back on the syringe prior to the injection of fat to ensure that blood does not comes into the syringe. According to the defendant’s expert, this withdrawal technique helps to prevent fat from being injected directly into a blood vessel.

The defendant filed a motion for partial summary judgment seeking to dismiss the plaintiff’s medical malpractice claim insofar as it is based on the defendant’s alleged failure to properly aspirate during the fat transfer procedure. In a New York medical malpractice action, a defendant doctor establishes prima facie entitlement to summary judgment by showing either: (i) that in treating the plaintiff there was no departure from good and accepted medical practice or (ii) that any departure was not the proximate cause of the injuries alleged. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers.

The New York Appellate Court stated that the defendant failed to meet his prima facie burden of establishing that he did not depart from accepted medical practice in his method of injecting fat into the plaintiff’s face: in support of his motion, the defendant submitted the transcript of his deposition, an affidavit from a plastic surgery expert, and the plaintiff’s medical records. In his deposition testimony, the defendant described the aspiration technique, but only in general terms, and never specifically stated that he used this technique during the plaintiff’s procedure. In fact, he stated “[t]hat’s the technique that I think I used (emphasis added).” The New York Appellate Court stated that the defendant’s generalized description of the aspiration technique is insufficient to establish prima facie that he properly used this technique in this case (notably, the defendant did not submit his own affidavit with the motion clarifying this equivocal testimony).

The New York Appellate Court further stated, “Nor does the expert’s affidavit establish that defendant properly aspirated during the procedure, because it is based on the same deposition testimony that we find lacking. Finally, the surgery report relied upon by defendant does not remove all issues of fact as to whether he aspirated before each injection of fat. The term “aspirate” is not found in the report, and defendant acknowledged in his deposition that the report does not specifically describe the aspiration technique. Although the report references the “microdroplet multifocal technique,” which defendant claims includes aspiration, the record is far from clear on this point, particularly in light of the fact that defendant only stated that he “think[s] [he] used” the aspiration technique. In view of defendant’s failure to meet his prima facie burden, it is unnecessary to determine whether plaintiff raised a triable issue of fact in her opposition papers.”

Source Bahnyuk v Reed, 2019 NY Slip Op 05839.

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