Preview
FILED: KINGS COUNTY CLERK 12/20/2019 10:54 PM INDEX NO. 521431/2016
NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 12/20/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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KLARA KHUTORYANSKAYA,
Index No.: 521431/2016
Plaintiff,
-against -
LASER & MICROSURGERY, P.C., d/b/a NY LASIK EXPERT AFFIDAVIT
LASER & MICROSURGERY INSTITUTE, BROOKLYN
EYE SURGERY CENTER, LLC, d/b/a BROOKLYN EYE
SURGERY CENTER, ALEXANDER RABINOVICH, M.D.,
and JOHN AND JANE DOES 1-100 (said names being
fictitious, it being the intention of Plaintiff to designate any
and all individuals, parties, corporations or entities if any
having or claiming a knowledge of the foregoing complaint),
Defendants.
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STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
AMILIA SCHRIER, M.D., being duly sworn, deposes and says:
1. I am an ophthalmologist, Board Certified in Ophthalmology, and licensed to
practice medicine in the State of New York. I graduated medical school at SUNY Downstate
Medical School, Brooklyn, Ny in 1987. I completed an internship at Long Island College
Hospital, Brooklyn, NY in the Department of Internal Medicine in 1988. I completed a SUNY
Downstate Medical Center, Department of Ophthalmology residency program in 1991 in which I
was Chief Resident during my last year. Further, I completed a cornea and external disease
Fellowship at North Shore University Hospital-Cornell Medical College, Ophthalmology
Department, Manhasset, NY in 1992. Currently, I am an attending at Manhattan Eye, Ear &
Throat Hospital (“MEETH”), New York, NY as well as the Director of Education, and Professor
of Ophthalmology at Hofstra University and Director of Corneal Fellowship program at MEETH,
Northshore LIJ, and Hofstra Medical School. I have been actively treating corneal diseases for
over 25 years.
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2. This affirmation is submitted in support to the summary judgment on behalf of
Defendant Dr. Alexander Rabinovich.
3. I have reviewed the pleadings, deposition transcripts, plaintiff Klara
Khutoryanskaya’s medical records from Laser & Microsurgery, P.C. (“Laser PC”), Brooklyn Eye
Surgery Center (“Brooklyn Center”), New York Eye & Ear Infirmary, Dr. Edward Rubinchik,
Dr. Angie Wen, Ophthalmic Consultants, PC, Dr. John Seedor, Dr. Millie Fell, as well as other
relevant records related to plaintiff’s care in this matter. My opinion is based on the materials
reviewed, as well as my knowledge, training and experience in the field of Ophthalmology
generally, and specifically problems and diseases of the cornea and anterior segment. All of
my opinions in this Affidavit are made with a reasonable degree of medical certainty.
4. Based upon my review of the pleadings, plaintiff Klara Khutoryanskaya is
alleging in summary that Dr. Rabinovich departed from the standard of care in excising a cyst
from the inside of the plaintiff’s lower left eyelid on August 22, 2016. Specifically, plaintiff
alleges that she had corneal damage and reduced vision as a result from the surgery performed by
Dr. Rabinovich and did not receive proper follow-up care. Moreover, plaintiff alleges that Dr.
Rabinovich was solely responsible for everything that occurred during the surgery. Further,
plaintiff alleges lack of informed consent regarding the risks to this surgery. However, this is not
the case. As stated more fully below, it is my opinion with a reasonable degree of medical
certainty that Dr. Rabinovich acted within the standard of care in performing the cyst removal
surgery and properly performed the procedure having none of his actions been the cause of any
corneal damage since the cornea was protected throughout the procedure by a plastic shield.
Moreover, Dr. Rabinovich responded timely to plaintiff’s complaints after the procedure and
referred to her corneal specialists. It is also my opinion that Dr. Rabinovich’s actions during the
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surgery were not the proximate cause of plaintiff’s injuries. Further, it is my opinion that Dr.
Rabinovich fully informed plaintiff prior to the cyst removal surgery of any foreseeable risks.
5. At the outset it is important to note that Dr. Rabinovich performed the cyst
removal surgery at an ambulatory surgical center, Codefendant Brooklyn Center, as with all
outpatient ambulatory centers, are responsible to supervise and supply nursing staff, technicians,
equipment and medication for surgeries. It is standard that Brooklyn Center would ensure that
the surgical machinery and tools will be in proper working order, cleaned, sterilized, and made
ready for each surgery. It is not the responsibility of the surgeon to clean, sterilize or prepare the
tools that he/she will need for surgery. A surgeon expects when he walks into an operating room
that everything will be set up for his/her use in order for the surgeon to properly execute the
procedure.
6. Immediately prior to the surgical removal of the cyst, Dr. Rabinovich placed a
corneal shield over the plaintiff’s cornea to prevent any abrasions, damage or injury to the cornea
during his procedure. Dr. Rabinovich’s entire procedure was the removal of cyst on the inside of
the left lower eye lid. He did not perform surgery on the eye globe or any of its parts. It is the
standard of care for Dr. Rabinovich to place the corneal shield to protect the cornea for this type
of procedure. The corneal shield does not only protect from damage but also exposing the main
portions of the visual access, i.e. lens, iris, cornea, to light and heat.
7. The corneal shield used in the August 22, 2016, surgery was purchased, owned,
cleaned and sterilized by employees of Co-defendant Brooklyn Eye Surgery Center. Brooklyn
Eye Surgery Center’s witness Nurse Cahill explained that the corneal shields are sterilized using
Cidex solution. Although, Cidex has been widely used to disinfect medical equipment, it can be
irritating and even cause more severe reactions/damage if comes in direct contact with the eye.
Nurse Cahill testified that the technicians reuse the corneal shield, and prior to surgery place
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shield in a Cidex solution for at least 90 minutes. Just prior to surgery, the shield still in the
Cidex is brought into the operating room where the shield is taken out of the Cidex solution and
put into a cup with saline solution (salt & water) to rinse the shield and then taken out and put
into a cup of plain water. The shield is not rinsed under running water or washed by hand. Nurse
Cahill also testified that all the other instruments used in this surgery were placed in a heating
device to sterilize and washed by hand, but not the corneal shield. Nurse Cahill also testified the
shield is then placed onto a tray next to the surgical field for use by the surgeon during the
procedure. The first time Dr. Rabinovich would see the shield prior to surgery is when it is on the
surgical tray, he, as all surgeons, assumed the shield was sterilized and prepared for his use
during surgery.
Standard Of Care Treatment
8. Initially, plaintiff was a patient of Laser PC for general ophthalmology, treat and
follow her for conditions and problems with her retina (wholly unrelated to the cornea), and
plaintiff was diagnosed with cataracts in both eyes. Plaintiff was referred to Dr. Rabinovich
because she wanted a consultation regarding ptosis of her eyelids (droopy lids) and a cyst on the
inside of her left lower eyelid. Dr. Rabinovich specializes in oculoplastic surgery, that is surgery
of the eyelids inside and out, area around the eye and sometimes area behind the globe of the
eye. On August 1, 2016, plaintiff initially saw Dr. Rabinovich and discussed her droopy lids and
the cyst. Dr. Rabinovich noted a 5 x 7 mm firm, non-tender lesion on the inside of plaintiff’s left
lower eyelid. Plaintiff complained that it had appeared to have grown, it was bothering her, and
she did not like the appearance. Dr. Rabinovich discussed the risks, benefits and alternatives
including but not limited to recurrence, scarring, infection, bleeding, and no resolution of the
symptoms. Plaintiff’s visual acuity was 20/40 in the left eye at this exam. It is my opinion that
Dr. Rabinovich did not deviate from the standard of care during this appointment and in
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discussing the reasonably foreseeable risks. Further, it is my opinion that reasonably foreseeable
risks of this type of surgery would be infection, bleeding, scarring but would not be corneal
abrasion or damage to the cornea. The cornea was shielded the entire time of the surgery and he
was not performing surgery on that area of the eye. Dr. Rabinovich testified that he never had a
problem with the cornea after eyelid surgery. Further, Dr. Rabinovich did discuss alternatives
such as leaving the cyst alone, but it bothered plaintiff, or he could use a needle to reduce it but
then it would recur. After this discussion with Dr. Rabinovich she wanted to proceed with
surgical removal and signed a consent form.
9. On August 22, 2016, Dr. Rabinovich performed cyst removal surgery at the
Brooklyn Center without any complications. Just prior to surgery starting, Nurse Cahill puts
three different types of drops in the surgical eye. The first drop was for numbing, the second
drop was an antibiotic, and the third drop was Betadine (which is also an antiseptic and used to
prep a surgical area). When Dr. Rabinovich entered the surgical field all of his instruments he
needed for the procedure were waiting for him on trays including the corneal shield. The corneal
shield has a small square tab so that the Dr. Rabinovich was able to grasp the shield with a
surgical instrument to then place it over the cornea prior to his excising the cyst. After the
procedure was completed the corneal shield was removed and Maxitrol ointment was applied to
the eye. Maxitrol is a sterile one-time use antibiotic and steroid to prevent infection and reduce
inflammation. Maxitrol is commonly applied to the eye immediately following eye surgery. It is
my opinion that Dr. Rabinovich did not depart from the standard of care in the surgical removal
of the cyst and the cornea was protected during the procedure.
10. After the August 22, 2016, cyst removal surgery, either a nurse or administrator
from Brooklyn Center will telephone the patients within 24 hours of surgery to inquire as to how
the patients are doing, making sure they adhere to instructions, and ask about any questions
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regarding post-operative instructions. A report noting the post-operative telephone call sheet was
in the Brooklyn Center records and Nurse Cahill testified that plaintiff was contacted by Nurse
Antonia, who speaks Russian. Plaintiff complained to Nurse Antonia that she had some moderate
pain to her eyelid, approximately 2-3 pain out 10 (0 being no pain and 10 being worst pain).
Nurse Antonia advised plaintiff to take Tylenol for the pain. Plaintiff was told to contact her
doctor’s office if pain persists or worsens. There were no other complaints noted in the record.
11. Plaintiff was scheduled to see Dr. Rabinovich one week after the surgery for
follow-up. However, she contacted Dr. Rabinovich and complained of severe pain after the
procedure. The next day, August 23, 2016, she went to Laser PC and was seen by Dr. Bley.
Plaintiff complained of pain and a Dr. Bley placed a Prokera the cornea in the left eye. A Prokera
is a type of bandage contact lens (“BCL”) with a piece of amniotic membrane that is a
therapeutic device used to protect, repair and promote healing of damaged eye surfaces. Plaintiff
was diagnosed with a corneal abrasion at this visit. On August 24, 2016, Plaintiff went back to
Laser PC and saw Dr. Bley to follow up and her condition was the same.
12. On August 25, 2016, plaintiff went to see Dr. Rabinovich at his New York Eye
and Ear satellite office. He noted that her visual acuity was Counting Fingers at 1 foot in the left
eye. The Prokera was removed. Plaintiff complained of pain, discomfort, tearing and decreased
visual acuity in the left eye. Plaintiff had 2+ corneal edema but no corneal staining. Plaintiff did
not have a corneal abrasion at this visit as evidenced by Dr. Rabinovich finding there to be no
staining. When dye is introduced in the eye any corneal defects such as an abrasion or epithelial
changes will be stained if present. Since there was no staining, there was no corneal defect at this
visit. The surgical incision from the cyst removal surgery was healing well and no entropion of
the lid (lid turns into the eye). Plaintiff was continued on Gatifloxacin (antibiotic) and to start
Lotemax (anti-inflammatory) and follow-up in three days or sooner if necessary. Dr. Rabinovich
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referred plaintiff to a corneal specialist. This was the last time plaintiff saw Dr. Rabinovich
because she was followed by corneal specialists.
13. Plaintiff and Dr. Rabinovich did speak numerous times over the course of a month
and he referred her to two specialists Dr. Edward Rabinchik and Dr. Angie Wen. Plaintiff
requested letters from Dr. Rabinovich regarding her going to the gym and swimming. On
September 12, 2016, Dr. Rabinovich wrote a letter excusing plaintiff from the gym and
swimming due to problems with her left eye post-surgery, and on October 31, 2016, he wrote her
letter stating that her post-operative course complicated by inflammation has subsided and she is
able to return to the gym and swimming. The October 31, 2016, letter coincides with plaintiff’s
subsequent treating records from Dr. John Seedor, corneal specialist whose records indicate that
by October 19, 2016, plaintiff’s condition had become stable and her visual acuity was good. She
still had some visual complaints but had worsening cataracts at the time.
Plaintiff’s Subsequent Treatmeant By Corneal Specialists
Dr. Edward Rubinchik
14. Initially, plaintiff went to see Dr. Edward Rubinchik on August 26, 2016 by the
referral of Dr. Rabinovich. Her visual acuity was 20/100 in the left eye and was wearing the
BCL. Plaintiff went two more times and her condition was improving. Dr. Rubinchik noted that a
culture taken had come back with slight growth of staph lugdunensis and plaintiff was put on
antibiotics. She requested a different doctor from Dr. Rabinovich. He recommended Dr. Angie
Wen.
Dr. Angie Wen
15. On September 8, 2016 plaintiff went to Dr. Wen Plaintiff complains that left eye
very swollen, a lot of pain, cannot see out of it, and bright light bothers her. The medications she
was currently taking for the were Erythromycin and Vigamox for the eye. Her visual acuity in
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the right eye was 20/40 pinholed to 20/30. The vision in the left eye is Counting Fingers at three
feet there is a diagram that shows some rough epithelial cells on the cornea, some swelling. The
impression by Dr. Wen was likely chemical burn of the left eye cornea which needed mild
debridement. On September 15, 2016, plaintiff’s ocular medications at that time was Maxitrol
only. Her visual acuity was 20/80 uncorrected in the left eye. The impression was chemical burn
of left eye, the visual acuity has improved. Dr. Wen performed two debridements on the cornea.
A debridement is when damaged tissue is removed and regarding corneal epithelial damage it
removes the tissue and can smooth out cornea.
Dr. Millie Fell
16. On September 19, 2016, plaintiff was examined by Dr. Fell. Dr. Fell is not
specifically a cornea specialist. Her visual acuity in the left eye was 20/150 and the right eye was
20/25. Everything else was normal except the cornea. The record noted there was still some
swelling in the cornea, some staining and striae. She developed nuclear sclerotic cataracts and
cortical cataracts in both eyes. The corneal edema of the left eye showed some epithelial defects.
Dr. Fell noted at a follow-up visit that plaintiff has dense cataracts that are contributing to some
vision problems in the left eye. Dr. Fell referred plaintiff to Dr. John Seedor, corneal specialist.
Plaintiff continued to follow-up with Dr. Fell while being treated by Dr. Seedor and on February
17, 2017, her visual acuity in the left eye was 20/60 uncorrected, pinhole 20/40. Plaintiff’s
cataract in left eye worsened to 3+ and was listed as main visual problem. Plaintiff eventually
had the cataracts extracted and intraocular lens implanted.
Dr. John Seedor
17. On September 19, 2016, plaintiff’s initial visit with Dr. Seedor visual acuity was
20/200 in the left eye, no improvement. The anterior segment exam was normal except for the
conjunctiva of the left eye showed a diffuse 2+ injection, 6 and 9 o’clock just posterior to the
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limbus is epi defect overlaying ischemic appearing sclera and may be some scleral lysis
inferiorly. The cornea has patchy plaque like deposits on the cornea inside the limbus from 6:00
to 10:00 centrally PEK and mild underlying edema with 1+ Descemet’s Folds. Epithelial cell
count for cornea was 2251 in the left eye and 2066 in the right. Impression was persistent
epithelial defect of the left cornea, and anterior sclerosis of the left eye. Dr. Seedor noted
plaintiff was suspect acute perilimbal injury with resultant epithelial breakdown of the cornea.
Dr. Seedor questioned whether it was a chemical or thermal injury. A culture was taken to see if
it was bacterial, fungus or herpes causing the corneal damage. Plaintiff was given a prescription
of Vigamox 1.5 percent and Pred Forte at 1 percent drops to put in the left eye. She was to stop
the Maxitrol. Possible need for a superficial keratectomy with amniotic membrane if no
improvement.
18. On September 23, 2016, plaintiff had a follow-up visit with Dr. Seedor and it was
noted that she thought her eye felt a little better that day. The visual acuity of the left eye was
actually 20/60 uncorrected, pinholed 20/50. The anterior segment exam was same as previous
visit. The cultures taken at last exam were negative to date, and acuity improved. Plaintiff was
using Vigamox. Stable anterior segment. On September 28, 2016. Dr. Seedor still lists that the
corneal defect is from unknown etiology. Her visual acuity was 20/40 for the left eye
uncorrected. Impression was persistent epithelial defect of the cornea. Slides obtained last week
were read by pathology as acanthosis of corneal epi, no organisms. It was noted that corneal
injury continues to improve, acuity improved, and did well with the Pred Forte.
19. Plaintiff continued to follow with Dr. Seedor over the next few months. In
October 2016, her visual acuity improved to 20/40. The left anterior segment had improved, the
epithelial were still irregular with areas of thickening but there were no defects noted. Plaintiff
was also given a BCL to wear for continued healing. In November, plaintiff was no longer
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wearing the BCL. Her left eye visual acuity was uncorrected 20/40-2, pinhole to 20/30-2. The
cornea showed negative staining around the plaques nasal inferior and the epithelial defect
healed. Plaintiff continues to cataracts in both eyes.
20. In December 2016, Dr. Seedor noted that the uncorrected visual acuity in the left
eye was 20/60+1, with refraction best corrected final vision 20/40 slow. The left eye perilimbal
corneal injury of unknown etiology, scleritis of anterior segment almost completely healed. Both
eyes visually significant cataract. It is my opinion that at this point plaintiff’s visual acuity was
affected by the cataracts and not the problem with the cornea. Plaintiff was told to consult with
Dr. Fell about having cataract surgery.
21. On July 31, 2017, Dr. Seedor noted that plaintiff still had cataracts and not going
back to Dr. Fell. Dr. Fell noted in April 2017, that plaintiff had 3+ cataract in the left eye. Her
visual acuity best corrected final vision was 20/40 in left eye but complained of double vision.
Required cataract extraction surgery to improve her vision. It was also noted that small new
plaque was noted just inside the nasal limbus.
Conclusion
22. It is my opinion with a reasonable degree of certainty that Dr. Rabinovich
performed the cyst removal properly and within the standard of care. The area where the cyst
was removed, lower inside left eyelid, was well healed and had no complications. Dr.
Rabinovich properly used a corneal shield to protect the cornea during the surgery. However, Dr.
Rabinovich had no control over the maintenance and sterilization of the shield, that was
performed by Brooklyn Center staff. It was Brooklyn Center staff that purchased, maintained
and sterilized the shield using Cidex. The post-operative corneal damage was in the area of the
limbus. The limbus is a band that encircles the periphery of the cornea. Subsequent treating
physician Dr. Wen believed the corneal injury was due to a chemical burn and Dr. Seedor also
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thought could be a chemical burn but diagnosed plaintiff with a perilimbal corneal injury of
unknown etiology.
23. It is my opinion that the plaintiff had a toxic injury, likely chemical, to the cornea.
Chemical burns occur, can heal and usually not leave any residual problems. In this case,
plaintiff’s eye healed by end of 2016 and her visual acuity was best corrected 20/40 but she
developed worsening nuclear sclerotic and posterior capsular cataracts in both eyes which caused
visual disturbances. She was told by Dr. Seedor and Dr. Fell to have cataract surgery. Further,
Dr. Rabinovich insured plaintiff had the proper post-surgery care, referred her to corneal
specialists in a timely manner and spoke to her numerous times to track her treatment.
24. Dr. Rabinovich’s actions during the surgery were not the proximate cause of the
injury in this case. Dr. Rabinovich did nothing wrong with placing a corneal shield over the
cornea of the plaintiff prior to the procedure and had nothing to do with its cleaning or
sterilization. Plaintiff’s had a chemical burn in around the cornea, the limbal region, which
healed within a few months. The corneal shield which was sterilized in Cidex more than likely
caused this damage. Cidex can be very irritating to the eye and it is commonly known to insure
Cidex does not touch the eye. The shield must not have been properly rinsed an caused the
injury to the limbus. Plaintiff had a reaction to the shield itself. Dr. Rabinovich cannot be held
accountable for the actions of the Brooklyn Center staff. Surgeons expect that when they enter
the surgical field all their instruments are properly sterilized and ready. When a surgery is at a
ambulatory center such as Brooklyn Center, it is the Center’s responsibility to insure that the
surgical equipment is properly sterilized and cleaned prior to surgery. Therefore, any injury to
plaintiff’s cornea was not the proximate cause of Dr. Rabinovich.
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Informed Consent
25. It is my opinion that Dr. Rabinovich fully informed the plaintiff of all the
foreseeable risks for the cyst removal surgery. Dr. Rabinovich told plaintiff that there could be
infection, bleeding, scarring, and recurrence. These are the commonly known complications with
this surgery. Since he was using a corneal shield, it was not foreseeable that a corneal abrasion or
chemical burn of the cornea would occur. Dr. Rabinovich testified that he never had any corneal
problems after a lid surgery in the past. Further, Dr. Rabinovich discussed the option of doing
nothing to the cyst or possibly using a needle to reduce it but that it would recur. Plaintiff agreed
to surgery and signed the consent form. The area in which Dr. Rabinovich performed the surgery
had no complications and healed well. A reasonable person in plaintiff’s position even knowing
there might be a risk of corneal problems after the procedure, would still proceed with the
procedure since the shield was covering the cornea.
Date: November 1, 2019
New York, New York
12
Preview
FILED: KINGS COUNTY CLERK 12/20/2019 10:54 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 12/20/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------x KLARA KHUTORYANSKAYA, Index No.: 521431/2016 Plaintiff, -against - LASER & MICROSURGERY, P.C., d/b/a NY LASIK EXPERT AFFIDAVIT LASER & MICROSURGERY INSTITUTE, BROOKLYN EYE SURGERY CENTER, LLC, d/b/a BROOKLYN EYE SURGERY CENTER, ALEXANDER RABINOVICH, M.D., and JOHN AND JANE DOES 1-100 (said names being fictitious, it being the intention of Plaintiff to designate any and all individuals, parties, corporations or entities if any having or claiming a knowledge of the foregoing complaint), Defendants. ---------------------------------------------------------------------x STATE OF NEW YORK ) )ss.: COUNTY OF NEW YORK ) AMILIA SCHRIER, M.D., being duly sworn, deposes and says: 1. I am an ophthalmologist, Board Certified in Ophthalmology, and licensed to practice medicine in the State of New York. I graduated medical school at SUNY Downstate Medical School, Brooklyn, Ny in 1987. I completed an internship at Long Island College Hospital, Brooklyn, NY in the Department of Internal Medicine in 1988. I completed a SUNY Downstate Medical Center, Department of Ophthalmology residency program in 1991 in which I was Chief Resident during my last year. Further, I completed a cornea and external disease Fellowship at North Shore University Hospital-Cornell Medical College, Ophthalmology Department, Manhasset, NY in 1992. Currently, I am an attending at Manhattan Eye, Ear & Throat Hospital (“MEETH”), New York, NY as well as the Director of Education, and Professor of Ophthalmology at Hofstra University and Director of Corneal Fellowship program at MEETH, Northshore LIJ, and Hofstra Medical School. I have been actively treating corneal diseases for over 25 years. 1 FILED: KINGS COUNTY CLERK 12/20/2019 10:54 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 12/20/2019 2. This affirmation is submitted in support to the summary judgment on behalf of Defendant Dr. Alexander Rabinovich. 3. I have reviewed the pleadings, deposition transcripts, plaintiff Klara Khutoryanskaya’s medical records from Laser & Microsurgery, P.C. (“Laser PC”), Brooklyn Eye Surgery Center (“Brooklyn Center”), New York Eye & Ear Infirmary, Dr. Edward Rubinchik, Dr. Angie Wen, Ophthalmic Consultants, PC, Dr. John Seedor, Dr. Millie Fell, as well as other relevant records related to plaintiff’s care in this matter. My opinion is based on the materials reviewed, as well as my knowledge, training and experience in the field of Ophthalmology generally, and specifically problems and diseases of the cornea and anterior segment. All of my opinions in this Affidavit are made with a reasonable degree of medical certainty. 4. Based upon my review of the pleadings, plaintiff Klara Khutoryanskaya is alleging in summary that Dr. Rabinovich departed from the standard of care in excising a cyst from the inside of the plaintiff’s lower left eyelid on August 22, 2016. Specifically, plaintiff alleges that she had corneal damage and reduced vision as a result from the surgery performed by Dr. Rabinovich and did not receive proper follow-up care. Moreover, plaintiff alleges that Dr. Rabinovich was solely responsible for everything that occurred during the surgery. Further, plaintiff alleges lack of informed consent regarding the risks to this surgery. However, this is not the case. As stated more fully below, it is my opinion with a reasonable degree of medical certainty that Dr. Rabinovich acted within the standard of care in performing the cyst removal surgery and properly performed the procedure having none of his actions been the cause of any corneal damage since the cornea was protected throughout the procedure by a plastic shield. Moreover, Dr. Rabinovich responded timely to plaintiff’s complaints after the procedure and referred to her corneal specialists. It is also my opinion that Dr. Rabinovich’s actions during the 2 FILED: KINGS COUNTY CLERK 12/20/2019 10:54 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 12/20/2019 surgery were not the proximate cause of plaintiff’s injuries. Further, it is my opinion that Dr. Rabinovich fully informed plaintiff prior to the cyst removal surgery of any foreseeable risks. 5. At the outset it is important to note that Dr. Rabinovich performed the cyst removal surgery at an ambulatory surgical center, Codefendant Brooklyn Center, as with all outpatient ambulatory centers, are responsible to supervise and supply nursing staff, technicians, equipment and medication for surgeries. It is standard that Brooklyn Center would ensure that the surgical machinery and tools will be in proper working order, cleaned, sterilized, and made ready for each surgery. It is not the responsibility of the surgeon to clean, sterilize or prepare the tools that he/she will need for surgery. A surgeon expects when he walks into an operating room that everything will be set up for his/her use in order for the surgeon to properly execute the procedure. 6. Immediately prior to the surgical removal of the cyst, Dr. Rabinovich placed a corneal shield over the plaintiff’s cornea to prevent any abrasions, damage or injury to the cornea during his procedure. Dr. Rabinovich’s entire procedure was the removal of cyst on the inside of the left lower eye lid. He did not perform surgery on the eye globe or any of its parts. It is the standard of care for Dr. Rabinovich to place the corneal shield to protect the cornea for this type of procedure. The corneal shield does not only protect from damage but also exposing the main portions of the visual access, i.e. lens, iris, cornea, to light and heat. 7. The corneal shield used in the August 22, 2016, surgery was purchased, owned, cleaned and sterilized by employees of Co-defendant Brooklyn Eye Surgery Center. Brooklyn Eye Surgery Center’s witness Nurse Cahill explained that the corneal shields are sterilized using Cidex solution. Although, Cidex has been widely used to disinfect medical equipment, it can be irritating and even cause more severe reactions/damage if comes in direct contact with the eye. Nurse Cahill testified that the technicians reuse the corneal shield, and prior to surgery place 3 FILED: KINGS COUNTY CLERK 12/20/2019 10:54 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 12/20/2019 shield in a Cidex solution for at least 90 minutes. Just prior to surgery, the shield still in the Cidex is brought into the operating room where the shield is taken out of the Cidex solution and put into a cup with saline solution (salt & water) to rinse the shield and then taken out and put into a cup of plain water. The shield is not rinsed under running water or washed by hand. Nurse Cahill also testified that all the other instruments used in this surgery were placed in a heating device to sterilize and washed by hand, but not the corneal shield. Nurse Cahill also testified the shield is then placed onto a tray next to the surgical field for use by the surgeon during the procedure. The first time Dr. Rabinovich would see the shield prior to surgery is when it is on the surgical tray, he, as all surgeons, assumed the shield was sterilized and prepared for his use during surgery. Standard Of Care Treatment 8. Initially, plaintiff was a patient of Laser PC for general ophthalmology, treat and follow her for conditions and problems with her retina (wholly unrelated to the cornea), and plaintiff was diagnosed with cataracts in both eyes. Plaintiff was referred to Dr. Rabinovich because she wanted a consultation regarding ptosis of her eyelids (droopy lids) and a cyst on the inside of her left lower eyelid. Dr. Rabinovich specializes in oculoplastic surgery, that is surgery of the eyelids inside and out, area around the eye and sometimes area behind the globe of the eye. On August 1, 2016, plaintiff initially saw Dr. Rabinovich and discussed her droopy lids and the cyst. Dr. Rabinovich noted a 5 x 7 mm firm, non-tender lesion on the inside of plaintiff’s left lower eyelid. Plaintiff complained that it had appeared to have grown, it was bothering her, and she did not like the appearance. Dr. Rabinovich discussed the risks, benefits and alternatives including but not limited to recurrence, scarring, infection, bleeding, and no resolution of the symptoms. Plaintiff’s visual acuity was 20/40 in the left eye at this exam. It is my opinion that Dr. Rabinovich did not deviate from the standard of care during this appointment and in 4 FILED: KINGS COUNTY CLERK 12/20/2019 10:54 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 12/20/2019 discussing the reasonably foreseeable risks. Further, it is my opinion that reasonably foreseeable risks of this type of surgery would be infection, bleeding, scarring but would not be corneal abrasion or damage to the cornea. The cornea was shielded the entire time of the surgery and he was not performing surgery on that area of the eye. Dr. Rabinovich testified that he never had a problem with the cornea after eyelid surgery. Further, Dr. Rabinovich did discuss alternatives such as leaving the cyst alone, but it bothered plaintiff, or he could use a needle to reduce it but then it would recur. After this discussion with Dr. Rabinovich she wanted to proceed with surgical removal and signed a consent form. 9. On August 22, 2016, Dr. Rabinovich performed cyst removal surgery at the Brooklyn Center without any complications. Just prior to surgery starting, Nurse Cahill puts three different types of drops in the surgical eye. The first drop was for numbing, the second drop was an antibiotic, and the third drop was Betadine (which is also an antiseptic and used to prep a surgical area). When Dr. Rabinovich entered the surgical field all of his instruments he needed for the procedure were waiting for him on trays including the corneal shield. The corneal shield has a small square tab so that the Dr. Rabinovich was able to grasp the shield with a surgical instrument to then place it over the cornea prior to his excising the cyst. After the procedure was completed the corneal shield was removed and Maxitrol ointment was applied to the eye. Maxitrol is a sterile one-time use antibiotic and steroid to prevent infection and reduce inflammation. Maxitrol is commonly applied to the eye immediately following eye surgery. It is my opinion that Dr. Rabinovich did not depart from the standard of care in the surgical removal of the cyst and the cornea was protected during the procedure. 10. After the August 22, 2016, cyst removal surgery, either a nurse or administrator from Brooklyn Center will telephone the patients within 24 hours of surgery to inquire as to how the patients are doing, making sure they adhere to instructions, and ask about any questions 5 FILED: KINGS COUNTY CLERK 12/20/2019 10:54 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 12/20/2019 regarding post-operative instructions. A report noting the post-operative telephone call sheet was in the Brooklyn Center records and Nurse Cahill testified that plaintiff was contacted by Nurse Antonia, who speaks Russian. Plaintiff complained to Nurse Antonia that she had some moderate pain to her eyelid, approximately 2-3 pain out 10 (0 being no pain and 10 being worst pain). Nurse Antonia advised plaintiff to take Tylenol for the pain. Plaintiff was told to contact her doctor’s office if pain persists or worsens. There were no other complaints noted in the record. 11. Plaintiff was scheduled to see Dr. Rabinovich one week after the surgery for follow-up. However, she contacted Dr. Rabinovich and complained of severe pain after the procedure. The next day, August 23, 2016, she went to Laser PC and was seen by Dr. Bley. Plaintiff complained of pain and a Dr. Bley placed a Prokera the cornea in the left eye. A Prokera is a type of bandage contact lens (“BCL”) with a piece of amniotic membrane that is a therapeutic device used to protect, repair and promote healing of damaged eye surfaces. Plaintiff was diagnosed with a corneal abrasion at this visit. On August 24, 2016, Plaintiff went back to Laser PC and saw Dr. Bley to follow up and her condition was the same. 12. On August 25, 2016, plaintiff went to see Dr. Rabinovich at his New York Eye and Ear satellite office. He noted that her visual acuity was Counting Fingers at 1 foot in the left eye. The Prokera was removed. Plaintiff complained of pain, discomfort, tearing and decreased visual acuity in the left eye. Plaintiff had 2+ corneal edema but no corneal staining. Plaintiff did not have a corneal abrasion at this visit as evidenced by Dr. Rabinovich finding there to be no staining. When dye is introduced in the eye any corneal defects such as an abrasion or epithelial changes will be stained if present. Since there was no staining, there was no corneal defect at this visit. The surgical incision from the cyst removal surgery was healing well and no entropion of the lid (lid turns into the eye). Plaintiff was continued on Gatifloxacin (antibiotic) and to start Lotemax (anti-inflammatory) and follow-up in three days or sooner if necessary. Dr. Rabinovich 6 FILED: KINGS COUNTY CLERK 12/20/2019 10:54 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 12/20/2019 referred plaintiff to a corneal specialist. This was the last time plaintiff saw Dr. Rabinovich because she was followed by corneal specialists. 13. Plaintiff and Dr. Rabinovich did speak numerous times over the course of a month and he referred her to two specialists Dr. Edward Rabinchik and Dr. Angie Wen. Plaintiff requested letters from Dr. Rabinovich regarding her going to the gym and swimming. On September 12, 2016, Dr. Rabinovich wrote a letter excusing plaintiff from the gym and swimming due to problems with her left eye post-surgery, and on October 31, 2016, he wrote her letter stating that her post-operative course complicated by inflammation has subsided and she is able to return to the gym and swimming. The October 31, 2016, letter coincides with plaintiff’s subsequent treating records from Dr. John Seedor, corneal specialist whose records indicate that by October 19, 2016, plaintiff’s condition had become stable and her visual acuity was good. She still had some visual complaints but had worsening cataracts at the time. Plaintiff’s Subsequent Treatmeant By Corneal Specialists Dr. Edward Rubinchik 14. Initially, plaintiff went to see Dr. Edward Rubinchik on August 26, 2016 by the referral of Dr. Rabinovich. Her visual acuity was 20/100 in the left eye and was wearing the BCL. Plaintiff went two more times and her condition was improving. Dr. Rubinchik noted that a culture taken had come back with slight growth of staph lugdunensis and plaintiff was put on antibiotics. She requested a different doctor from Dr. Rabinovich. He recommended Dr. Angie Wen. Dr. Angie Wen 15. On September 8, 2016 plaintiff went to Dr. Wen Plaintiff complains that left eye very swollen, a lot of pain, cannot see out of it, and bright light bothers her. The medications she was currently taking for the were Erythromycin and Vigamox for the eye. Her visual acuity in 7 FILED: KINGS COUNTY CLERK 12/20/2019 10:54 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 12/20/2019 the right eye was 20/40 pinholed to 20/30. The vision in the left eye is Counting Fingers at three feet there is a diagram that shows some rough epithelial cells on the cornea, some swelling. The impression by Dr. Wen was likely chemical burn of the left eye cornea which needed mild debridement. On September 15, 2016, plaintiff’s ocular medications at that time was Maxitrol only. Her visual acuity was 20/80 uncorrected in the left eye. The impression was chemical burn of left eye, the visual acuity has improved. Dr. Wen performed two debridements on the cornea. A debridement is when damaged tissue is removed and regarding corneal epithelial damage it removes the tissue and can smooth out cornea. Dr. Millie Fell 16. On September 19, 2016, plaintiff was examined by Dr. Fell. Dr. Fell is not specifically a cornea specialist. Her visual acuity in the left eye was 20/150 and the right eye was 20/25. Everything else was normal except the cornea. The record noted there was still some swelling in the cornea, some staining and striae. She developed nuclear sclerotic cataracts and cortical cataracts in both eyes. The corneal edema of the left eye showed some epithelial defects. Dr. Fell noted at a follow-up visit that plaintiff has dense cataracts that are contributing to some vision problems in the left eye. Dr. Fell referred plaintiff to Dr. John Seedor, corneal specialist. Plaintiff continued to follow-up with Dr. Fell while being treated by Dr. Seedor and on February 17, 2017, her visual acuity in the left eye was 20/60 uncorrected, pinhole 20/40. Plaintiff’s cataract in left eye worsened to 3+ and was listed as main visual problem. Plaintiff eventually had the cataracts extracted and intraocular lens implanted. Dr. John Seedor 17. On September 19, 2016, plaintiff’s initial visit with Dr. Seedor visual acuity was 20/200 in the left eye, no improvement. The anterior segment exam was normal except for the conjunctiva of the left eye showed a diffuse 2+ injection, 6 and 9 o’clock just posterior to the 8 FILED: KINGS COUNTY CLERK 12/20/2019 10:54 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 12/20/2019 limbus is epi defect overlaying ischemic appearing sclera and may be some scleral lysis inferiorly. The cornea has patchy plaque like deposits on the cornea inside the limbus from 6:00 to 10:00 centrally PEK and mild underlying edema with 1+ Descemet’s Folds. Epithelial cell count for cornea was 2251 in the left eye and 2066 in the right. Impression was persistent epithelial defect of the left cornea, and anterior sclerosis of the left eye. Dr. Seedor noted plaintiff was suspect acute perilimbal injury with resultant epithelial breakdown of the cornea. Dr. Seedor questioned whether it was a chemical or thermal injury. A culture was taken to see if it was bacterial, fungus or herpes causing the corneal damage. Plaintiff was given a prescription of Vigamox 1.5 percent and Pred Forte at 1 percent drops to put in the left eye. She was to stop the Maxitrol. Possible need for a superficial keratectomy with amniotic membrane if no improvement. 18. On September 23, 2016, plaintiff had a follow-up visit with Dr. Seedor and it was noted that she thought her eye felt a little better that day. The visual acuity of the left eye was actually 20/60 uncorrected, pinholed 20/50. The anterior segment exam was same as previous visit. The cultures taken at last exam were negative to date, and acuity improved. Plaintiff was using Vigamox. Stable anterior segment. On September 28, 2016. Dr. Seedor still lists that the corneal defect is from unknown etiology. Her visual acuity was 20/40 for the left eye uncorrected. Impression was persistent epithelial defect of the cornea. Slides obtained last week were read by pathology as acanthosis of corneal epi, no organisms. It was noted that corneal injury continues to improve, acuity improved, and did well with the Pred Forte. 19. Plaintiff continued to follow with Dr. Seedor over the next few months. In October 2016, her visual acuity improved to 20/40. The left anterior segment had improved, the epithelial were still irregular with areas of thickening but there were no defects noted. Plaintiff was also given a BCL to wear for continued healing. In November, plaintiff was no longer 9 FILED: KINGS COUNTY CLERK 12/20/2019 10:54 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 12/20/2019 wearing the BCL. Her left eye visual acuity was uncorrected 20/40-2, pinhole to 20/30-2. The cornea showed negative staining around the plaques nasal inferior and the epithelial defect healed. Plaintiff continues to cataracts in both eyes. 20. In December 2016, Dr. Seedor noted that the uncorrected visual acuity in the left eye was 20/60+1, with refraction best corrected final vision 20/40 slow. The left eye perilimbal corneal injury of unknown etiology, scleritis of anterior segment almost completely healed. Both eyes visually significant cataract. It is my opinion that at this point plaintiff’s visual acuity was affected by the cataracts and not the problem with the cornea. Plaintiff was told to consult with Dr. Fell about having cataract surgery. 21. On July 31, 2017, Dr. Seedor noted that plaintiff still had cataracts and not going back to Dr. Fell. Dr. Fell noted in April 2017, that plaintiff had 3+ cataract in the left eye. Her visual acuity best corrected final vision was 20/40 in left eye but complained of double vision. Required cataract extraction surgery to improve her vision. It was also noted that small new plaque was noted just inside the nasal limbus. Conclusion 22. It is my opinion with a reasonable degree of certainty that Dr. Rabinovich performed the cyst removal properly and within the standard of care. The area where the cyst was removed, lower inside left eyelid, was well healed and had no complications. Dr. Rabinovich properly used a corneal shield to protect the cornea during the surgery. However, Dr. Rabinovich had no control over the maintenance and sterilization of the shield, that was performed by Brooklyn Center staff. It was Brooklyn Center staff that purchased, maintained and sterilized the shield using Cidex. The post-operative corneal damage was in the area of the limbus. The limbus is a band that encircles the periphery of the cornea. Subsequent treating physician Dr. Wen believed the corneal injury was due to a chemical burn and Dr. Seedor also 10 FILED: KINGS COUNTY CLERK 12/20/2019 10:54 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 12/20/2019 thought could be a chemical burn but diagnosed plaintiff with a perilimbal corneal injury of unknown etiology. 23. It is my opinion that the plaintiff had a toxic injury, likely chemical, to the cornea. Chemical burns occur, can heal and usually not leave any residual problems. In this case, plaintiff’s eye healed by end of 2016 and her visual acuity was best corrected 20/40 but she developed worsening nuclear sclerotic and posterior capsular cataracts in both eyes which caused visual disturbances. She was told by Dr. Seedor and Dr. Fell to have cataract surgery. Further, Dr. Rabinovich insured plaintiff had the proper post-surgery care, referred her to corneal specialists in a timely manner and spoke to her numerous times to track her treatment. 24. Dr. Rabinovich’s actions during the surgery were not the proximate cause of the injury in this case. Dr. Rabinovich did nothing wrong with placing a corneal shield over the cornea of the plaintiff prior to the procedure and had nothing to do with its cleaning or sterilization. Plaintiff’s had a chemical burn in around the cornea, the limbal region, which healed within a few months. The corneal shield which was sterilized in Cidex more than likely caused this damage. Cidex can be very irritating to the eye and it is commonly known to insure Cidex does not touch the eye. The shield must not have been properly rinsed an caused the injury to the limbus. Plaintiff had a reaction to the shield itself. Dr. Rabinovich cannot be held accountable for the actions of the Brooklyn Center staff. Surgeons expect that when they enter the surgical field all their instruments are properly sterilized and ready. When a surgery is at a ambulatory center such as Brooklyn Center, it is the Center’s responsibility to insure that the surgical equipment is properly sterilized and cleaned prior to surgery. Therefore, any injury to plaintiff’s cornea was not the proximate cause of Dr. Rabinovich. 11 FILED: KINGS COUNTY CLERK 12/20/2019 10:54 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 12/20/2019 Informed Consent 25. It is my opinion that Dr. Rabinovich fully informed the plaintiff of all the foreseeable risks for the cyst removal surgery. Dr. Rabinovich told plaintiff that there could be infection, bleeding, scarring, and recurrence. These are the commonly known complications with this surgery. Since he was using a corneal shield, it was not foreseeable that a corneal abrasion or chemical burn of the cornea would occur. Dr. Rabinovich testified that he never had any corneal problems after a lid surgery in the past. Further, Dr. Rabinovich discussed the option of doing nothing to the cyst or possibly using a needle to reduce it but that it would recur. Plaintiff agreed to surgery and signed the consent form. The area in which Dr. Rabinovich performed the surgery had no complications and healed well. A reasonable person in plaintiff’s position even knowing there might be a risk of corneal problems after the procedure, would still proceed with the procedure since the shield was covering the cornea. Date: November 1, 2019 New York, New York 12