May 13, 2022

The New York Supreme Court, Appellate Division, First Judicial Department (“New York Appellate Court”) held in its decision dated March 1, 2022 in a New York medical malpractice case against an ophthalmologist that alleged medical negligence led to the plaintiff’s subsequent blindness in her right eye, “In this case, we cannot say the verdict is palpably wrong. The jury found that plaintiff’s injuries were proximately caused by defendant. They deemed the testimony of plaintiff’s expert, when considered with the documentary evidence and all the other evidence in the case, more credible than the testimony of the vitreoretinal surgeon, and defendant’s expert witnesses. The differing testimony and conclusions on causation given by defendant’s witnesses do not require a different outcome. In the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict.”

The plaintiff alleged that the defendant ophthalmologist, who performed cataract removal and lens replacement surgery on the plaintiff on December 31, 2013, negligently removed a six-millimeter Intra-Ocular Lens (IOL) through a 2.75-millimeter incision and the resultant excessive manipulation of the eyeball caused her to sustain a retinal tear, which developed into a giant retinal tear and retinal detachment, and eventually the plaintiff became legally blind in her right eye.

In a battle of the parties’ experts, the 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 the 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. The 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, the plaintiff’s expert stated that a small superiorly placed retinal tear would not have been visualized because there was still vitreous hemorrhage in the plaintiff’s eye and the primary focus of the vitreoretinal surgeon was the back of the 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 the defendant and 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 the 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. The defendant presented two additional expert witnesses, a vitreoretinal surgeon and an ophthalmological surgeon. The 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. The 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 the defendant or to the vitreoretinal surgeon on either January 2nd or January 9th.

The New York Appellate Court stated that all parties agreed there was no giant retinal tear on January 2 or January 9. If there had been one the B-scan ultrasound would have visualized it on January 2, or the vitreoretinal surgeon could have visualized it on January 9. The plaintiff’s theory was not that there was always a giant retinal tear but that initially there was a small tear, pointing to the vitreous hemorrhage as proof.

The New York Appellate Court stated: “Whether the hemorrhage came from a small retinal tear or from the iris was a question for the jury to decide. There was a vitreous hemorrhage on January 2 and the source of the blood was either a small retinal tear or the iris, and there was no damage to the iris. Accordingly, there was a valid line of reasoning for the jury’s conclusion that the source of the blood was a small retinal tear, that the small retinal tear existed on the date of the surgery, was not seen by the vitreoretinal surgeon on January 2 or January 9 and progressed to the point that on January 15 it had developed into a giant retinal tear. A jury may entirely reject the testimony of experts; and the credibility of such witnesses, the weight and sufficiency of their evidence are for the jury, and not for the court, to decide.”

The New York Appellate Court therefore affirmed the jury’s verdict.

Source Rozon v Schottenstein, 2022 NY Slip Op 01278.

If you or a family member suffered serious injury or other harm that may be due to ophthalmologist malpractice in New York or in another U.S. state, you should promptly find a New York medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your ophthalmology medical malpractice claim for you and represent you or your family member in an ophthalmologist medical malpractice case, if appropriate.

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