In October 2013, Ralph Carter (the decedent), who had a long, significant history of alcohol abuse, presented to the defendant Jonathan Ellant, an ophthalmologist, with vision issues. Upon determining that the decedent had cataracts in each eye, Ellant recommended that the decedent have surgery performed in separate procedures to remove the cataracts. Ellant required the decedent to obtain medical clearance before performing the surgery. Thereafter, the decedent visited his primary care physician, the defendant Joseph Hubert Paul, who discovered that the decedent suffered from atrial fibrillation. Paul referred the decedent to the defendant Alexander Slotwiner, a cardiologist, for further testing and treatment. According to Slotwiner, he prescribed Metoprolol to manage the decedent’s atrial fibrillation and reduce his heart rate, as well as aspirin to reduce the risk of a stroke. Based on the decedent’s alcohol abuse, anticoagulation medication was contraindicated. Slotwiner cleared the decedent for the surgery. Paul completed the medical clearance form, confirming that the decedent could have the cataract removal surgery.
In November 2013, the decedent underwent cataract removal surgery on his left eye, which was performed by Ellant without incident at the defendant New York Eye and Ear Infirmary (NYEEI). Subsequently, in December 2013, Ellant performed cataract removal surgery on the decedent’s right eye also at NYEEI. While the decedent was in the post-anesthesia care unit, he displayed right-sided weakness. Nonparty Rebecca Bagdonas, an anesthesiologist, evaluated the decedent and diagnosed a possible stroke. The decedent was then transferred to Beth Israel Medical Center where he was diagnosed with a left middle cerebral artery territory infarct. Thereafter, he was transferred to a nursing home, where he remained until his death in September 2018.
In 2016, a New York medical malpractice action was commenced by a guardian of the decedent, who was thereafter substituted by the administrator of the decedent’s estate. The plaintiff sought to recover damages for medical malpractice and lack of informed consent. The plaintiff alleged, inter alia, that the defendants committed medical malpractice by failing to appreciate the decedent’s atrial fibrillation before clearing him for the cataract removal surgery and operating on him. Following the completion of discovery, Ellant, NYEEI, Paul, and Slotwiner (the defendants) separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. In an order dated May 27, 2020, the Supreme Court granted the defendants’ separate motions. Thereafter, a judgment dated June 5, 2020, was entered in favor of the defendants and against the plaintiff dismissing the complaint insofar as asserted against each of them. The plaintiff appealed.
The Supreme Court of the State of New York Appellate Division: Second Judicial Department stated in its Decision & Order dated October 9, 2024: “Here, the defendants each established their prima facie entitlement to judgment as a
matter of law by submitting, among other things, affidavit/affirmations of their respective expert physicians, who opined that each of the defendants did not depart from the accepted standard of care and that any alleged departures were not a proximate cause of the decedent’s injuries … In opposition, the plaintiff failed to raise a triable issue of fact. Affidavits of the plaintiff’s experts, inter alia, failed to address specific assertions made by the defendants’ experts, including, among other things, that a stroke was not a risk of cataract removal surgery and that aspirin was an appropriate prescription given the decedent’s medical history, including his alcohol abuse, and were otherwise speculative and conclusory … Accordingly, the Supreme Court properly granted those branches of the defendants’ separate motions which were for summary judgment dismissing the medical malpractice cause of action insofar as asserted against each of them.”
The New York appellate court stated with regard to the informed consent issue: “Here, the defendants each established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging lack of informed consent by submitting, among other things, the decedent’s medical records, the affidavit/affirmations of their respective expert physicians, and transcripts of the parties’ deposition testimony. In opposition, the affidavits of the plaintiff’s experts failed to raise a triable issue of fact, as they failed to address certain assertions made in the decedent’s medical records, the defendants’ expert affidavit/affirmations, and the parties’ deposition testimony. Accordingly, the Supreme Court properly granted those branches of the defendants’ separate motions which were for summary judgment dismissing the cause of action alleging lack of informed consent insofar as asserted against each of them,”
Source Mattocks v. Ellant, 2020-04278.
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