S.O., an infant by Her Mother and Natural Guardian, F.O. and F.O., Individually, Plaintiff, v. FREDERICK (2026)

Recitation, as required by CPLR 2219 (a), of the papers considered in the review:

NYSCEF #s: 21-34, 35-46, 47

Defendants Douglas R. Fredrick M.D. (“Dr. Fredrick”), New York Eye and Ear Infirmary of Mount Sinai (“NYEE”), The Cohen Center for Pediatric Comprehensive Care (“the Cohen Center”), and The Mount Sinai Hospital (“Mount Sinai”) move for an Order, pursuant to CPLR 3212, granting summary judgment to all defendants and dismissing all causes of action in Plaintiff's Complaint against them. Plaintiff opposes the motion.

Plaintiff commenced this action on December 7, 2023, asserting claims of medical malpractice, loss of services, lack of informed consent, and negligent hiring, supervision, and credentialing against the defendants herein, in connection to treatment and care rendered by Mount Sinai. Plaintiff alleges that Defendants failed to properly and timely diagnose and treat the infant's increased intraocular pressure, corneal staining, and vitreous hemorrhage between January 26, 2019, and January 25, 2022, leading to permanent injuries and complications including vision loss, blindless, and the need for a prosthetic eye.

The infant plaintiff was born on [date redacted] at 1:24am at Bronx Lebanon Hospital. The infant was evaluated by non-party neonatologist Dr. Barbara Russell, who documented absence of red reflex in the right eye and called for an ophthalmology consult. On January 24, 2019, an ophthalmology consult was done by non-party Dr. Sandler. On exam, the cornea of the right eye was diffusely hazy with vitreous haze and the anterior chamber full of brownish-yellow material of unknown etiology. The intraocular pressure (“IOP”) of the right eye was elevated, ranging from 22 to 24  ¹ . On January 25, 2019, the right eye IOP ranged from 35-42, and it was recommended to transfer the infant for possible surgical management. Topical medications (Dorzolamide, Timolol, and Latanoprost) were started for the right eye with the goal of lowering IOP.

On January 26, 2019, the infant was transferred to defendant Mount Sinai for further evaluation and management.

On January 27, 2019, defendant Dr. Fredrick examined the infant. Dr. Fredrick noted concern for hyphemia  ² , vitreous hemorrhage clouding the cornea, and elevating pressure. Dr. Fredrick could not visualize the retina because of vitreous hemorrhage and corneal edema.

Mother-plaintiff was told by Dr. Fredrick that the infant would need a washout procedure to remove the blood stain with the goal of clearing the cornea and reducing IOP. It was noted that it was possible the infant will need further surgery, such as a vitrectomy to clear blood from the back of the eye, in the case that corneal clarity improves. At 4:58 p.m. that same day, the infant underwent an anterior washout of the right eye performed by Dr. Fredrick.

On January 28, 3029, the right eye IOP was still elevated at 33-41, and the infant was restarted on medications.

On January 29, 2019, Dr. Fredrick evaluated the patient, noting that the right eye IOP was still elevated at 26, but had improved. He documented a diagnosis of secondary glaucoma due to intraocular hemorrhage of unknown etiology. The plan was to control IOP with topical drops and, if the IOP stayed low, to discharge the infant within 1-2 days.

On January 30, 2019, the right eye IOP was 26. On January 31, 2019, MRI Orbits findings were compatible with right-sided intraocular hemorrhage with associated globe expansion. On February 1, 2019, Dr. Fredrick examined the patient and documented vitreous hemorrhage and corneal staining, and the right eye IOP was 27. The plan was to discharge the infant home on topical medications. This was the last day that the IOP was measured before discharge on February 4, 2019.

On February 5, 2019, the infant presented for a follow-up visit with Dr. Fredrick. On examination, the right eye IOP was 25, vitreous hemorrhage was still present, and there was possible retinal detachment. Retinal detachment could not be confirmed due to lack of visualization to the back of the eye. The plan was to continue the topical medication while monitoring the vitreous hemorrhage and corneal staining to assess whether visualization had improved enough for surgical intervention. Dr. Fredrick documented that they have two months to determine if any surgery was indicated. The first two to three months of life are critical for intervention to prevent vision loss in infants, as deprivation amblyopia  ³ can develop during that window leading to permanent blindness.

On February 12, 2019, the infant was seen by a non-party retinal specialist, Dr. Robin Ginsburg (“Dr. Ginsburg”), who noted corneal edema and blood staining, still opacified, and vitreous hemorrhage, which appeared slightly better. The IOP was 9 and 8. Dr. Ginsburg documented that she could not determine any retinal pathologies because the corneal changes were blocking view of the retina. These findings were communicated to Dr. Fredrick. On February 26, 2019, and March 12, 2019, the infant was seen by Dr. Ginsburg and Dr. Fredrick, and it was documented that the vitreous hemorrhage was slightly better and the IOP decreased to 5. It was also documented that the B-scan showed that the right eye retina was flat, and the vitreous hemorrhage had less central haze.

The infant received additional care from Dr. Fredrick following this visit. However, Plaintiff's claims are limited to the initial Mount Sinai admission and the first two months of life.

The infant currently has no vision in her right eye and is unable to open her right eye. She was told that she will not be able to see out of her right eye and may require future surgery to help strengthen the muscles of her eye.

Plaintiff alleges that Dr. Fredrick, NYEE, the Cohen Center, and Mount Sinai departed from the standard of care by failing to timely and properly treat the infant, including the failure to timely and properly diagnose and treat increased ocular pressure, retinal damage, and ocular hemorrhage. Plaintiff further alleges that these departures proximately caused her vision loss, blindness, and need for prosthetic eye.

In evaluating a summary judgment motion in a medical malpractice case, the Court applies the burden shifting process as summarized by the Second Department: “[A] defendant must make a prima facie showing either that there was no departure from good and accepted medical practice, or that the plaintiff was not injured by any such departure. Once a defendant physician has made such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact, but only as to the elements on which the defendant met the prima facie burden. Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions.” (Rosenzweig v Hadpawat, 229 AD3d 650, 652 [2d Dept 2024] [internal quotation marks and citations omitted]). However, “expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact.” (Barnaman v Bishop Hucles Episcopal Nursing Home, 213 AD3d 896, 898-899 [2d Dept 2023]).

In support of the motion on behalf of the movants, Mount Sinai submits an expert affirmation from David L. Rogers, M.D. (“Dr. Rogers”), a licensed physician board certified in Ophthalmology and current Chief in the Department of Pediatric Ophthalmology at Nationwide Children's Hospital.

Dr. Rogers opines that Dr. Frederick's treatment plan of a washout procedure on January 27 followed by medical therapy and close observation complied with the standard of care. Specifically, he states the goal of treatment in this case was to lower IOP and improve corneal clarity sufficiently to allow surgery to the back of the eye if needed. Dr. Rogers opines that the washout procedure followed by medical therapy and close observation was the appropriate treatment plan to achieve that goal because there is a likelihood that the IOP would resolve without the escalation of treatment to surgery.

Dr. Rogers opines that the downward trend in IOP measurements supports Dr. Frederick's treatment plan of medical therapy and close observation. The IOP had decreased to 27 by February 1 and was normal at 9 on the infant's February 12 visit. Dr. Rogers further opines that the records indicating a continuous drop towards normal range leading up to February 1 demonstrate proper monitoring and documentation of patient's care despite the lack of pressure readings for the remainder of patient's hospital admission. He opines that these measurements indicated that the patient was responding appropriately to treatment and as such constitutes proper monitoring and documentation.

Dr. Rogers opines that the decision to not perform or recommend surgery within the first two months of the patient's life is within the standard of care. He explains that while the first two months of a newborn's life are critical for vision development, in this case there were two issues that had to be remediated if there was to be any chance of vision development. First, the cornea would need to be clear of blood or would need to be transplanted with a new cornea. Second, the blood had to be removed from the vitreous (a vitrectomy).

Dr. Rogers states that in determining a treatment plan “the benefit of performing complicated, risky surgery on an infant must be weighed against the risks.” Dr. Rogers opines that here the risks of performing surgery vastly outweighed the small chance of a minimal benefit. Specifically, he references the 80% failure rate within two years for children with glaucoma who undergo corneal transplants. He points to the high risk of the intraocular pressure lowering to 0 and the eye developing phthisis—a small, shrunken non-functional and sometime painful eye. This condition would also negatively impact the patient's ability to wear a prosthesis for improved cosmetic appearance. He also mentions the risk of multiple surgical operations leading to sympathetic ophthalmia, an inflammatory condition that could cause blindness in the good eye.

Dr. Rogers balances the risks of adopting a surgical treatment plan with the poor prognosis indicated by the records. Dr. Rogers points to the retinal damage present at the infant's birth which is shown on the B-Scan and MRI imaging performed during the hospital visit and following appointments. Dr. Rogers additionally references the presence of Persistent Fetal Vasculature  ⁴ which can cause retinal detachment. Given the severity of the damage to the eye, Dr. Rogers opines that the best vision to be expected would be the ability to see fingers held 1-3 feet away. As such, Dr. Rogers concludes that the risk of surgical intervention vastly outweighed any potential benefit.

Dr. Rogers further opines that the decision not to refer the patient to a corneal specialist was not a deviation from the standard of care. He opines that the standard of care in this case is to observe and see if the corneal blood staining and hemorrhage would clear on their own. He further opines that both doctors were highly experienced and aware of the type of surgeries available and the option to perform a corneal transplant, lens replacement, and vitrectomy if there was any chance of preserving any vision. He then references his above-mentioned analysis of the substantial risks of surgery and explains that the same risks apply whether performed by a corneal specialist or not.

On the issue of proximate cause, Dr. Rogers opines that with the extensive nature of ocular damage diagnosed at birth, the infant would never develop functional vision from her right eye regardless of treatment plan. He further opines that even if surgery could have been done and was performed successfully, the best vision that could be obtained is less than 20/200, which is non-functional. He attributes this outcome to the several problems the patient presented with including corneal staining, persistent fetal vasculature (“PFV”), and already existing retinal damage.

Movants have established prima facie entitlement to summary judgment, based on the expert submission setting forth that Dr. Fredrick's observations, measurements, and treatment of Plaintiff, rendered from January 26, 2019 through March 19, 2019, complied with the standard of care.

Movants expert further established prima facie that no alleged departures from the standard of care were a proximate cause of Plaintiff's vision loss and related injuries, opining that the patient's vision lack of functional vision was inevitable regardless of treatment plan. The burden therefore shifts to Plaintiff to raise an issue of fact.

In opposition, Plaintiff submits an expert affirmation from [name of expert redacted], M.D., a physician licensed to practice medicine in New York since 1985. Plaintiff's expert states they completed a fellowship in Pediatric Ophthalmology and are familiar with the relevant surgical treatment options in this case. A signed, unredacted copy of the expert affirmation was presented to the Court for in camera inspection.

Plaintiff's expert opines Dr. Fredrick departed from the standard of care in their post-operative management of patient's right eye glaucoma by failing to properly monitor, document and control the patient's right eye IOP following the washout procedure. Plaintiff's expert opines that elevated IOP measurements are an ophthalmic emergency requiring prompt treatment and close monitoring as sustained pressure compromises optic nerve perfusion, causes corneal edema and blood staining, and permanently impairs visual development during the critical first two to three months of life.

Plaintiff's expert further opines that the standard of care following a washout procedure requires “frequent and serial IOP measurements after surgery, careful documentation of trends, and confirmation that pressure has returned to or near the normal range before discharge.” Plaintiff's expert explains that frequent measurements are required so that in the case that pressures remain elevated, the doctors can begin an escalation of therapy, including increased medical management or vitrectomy, to remove the obstructing blood and ideally clear the cornea. The IOP measurements following the washout procedure were persistently elevated, with measurements between 30-40 mmHG. Plaintiff's expert cites Defendants' failure to escalate treatment or even obtain serial measurements from February 1 to the discharge of patient on February 4. Plaintiff's expert further opines that this departure is “particularly significant” because elevated IOP worsens corneal edema and corneal blood staining, which here was the very reason Dr. Fredrick could not visualize or treat the issues in the back of the eye.

Plaintiff's expert opines that Dr. Fredrick deviated from the standard of care in failing to appropriately treat the patient's vitreous hemorrhage and corneal staining. Plaintiff's expert classifies a vitreous hemorrhage in an infant as an ophthalmic emergency which requires prompt intervention to restore a clear visual axis and permit normal visual development. Plaintiff's expert opines that when, as here, spontaneous resolution does not occur within the second month of life and visual development is going to be jeopardized, timely surgical management including vitrectomy and possible corneal transplant is required. Plaintiff's expert opines that once Defendants concluded that the corneal opacity was the impediment to treating the vitreous hemorrhage, further steps should have been taken to clear the cornea or involve a specialist capable of doing so.

Plaintiff's expert further opines that Dr. Fredrick deviated from the standard of care in failing to consult with or refer the patient to a corneal specialist. Plaintiff's expert points to Dr. Fredrick's deposition in which he admitted that the definitive treatment of corneal blood staining that impairs vision is corneal transplantation. He further emphasizes that neither Dr. Fredrick, nor non-party retinal specialist Dr. Ginsburg, perform corneal transplants. Plaintiff's expert explains that when a physician lacks the expertise to perform or fully evaluate surgical options, it is the standard of care to provide a referral to afford the patient an informed assessment of possible treatment plans. Plaintiff's expert opines that had a keratoplasty  ⁵ or vitrectomy been performed, the cornea could have cleared allowing the visual system to be capable of development. Plaintiff's expert opines that the failure to refer the infant foreclosed any meaningful opportunity to restore corneal clarity and, by extension, any opportunity to visualize and treat the vitreous hemorrhage or possible retinal pathology.

Plaintiff's expert further opines that Dr. Frederick's deviations from the standard of care were “a substantial contributing factor” to the patient's injuries including permanent loss of vision, structural collapse of the right eye, ultimate phthisis bulbi, and lack of depth perception. Plaintiff's expert opines that had Defendants achieved adequate pressure control, the resulting reduction in corneal edema and corneal staining would have improved visualization of the retina, likely enabling an earlier retinal assessment and a potential vitrectomy within the critical window for vision development. Plaintiff's expert further opines that Defendants, by allowing the corneal blood staining and vitreous hemorrhage to persist, permitted continuous obstruction of the back of the eye leading to the predictable outcome of irreversible vision loss (deprivation amblyopia).

Plaintiff's expert further counters Dr. Rogers' opinion that meaningful vision was not possible even with intervention. Plaintiff's expert notes that Dr. Rogers' assessment relies on a diagnosis of PFV and retinal detachment. However, as Plaintiff's expert points out, these diagnoses were merely presumptive and could not be confirmed due to the inability to visualize the back of the eye. Plaintiff's expert explains that the only conditions Defendant identified that prevented visualization and threatened vision were the dense vitreous hemorrhage and corneal blood staining. Plaintiff's expert opines that both vitreous hemorrhage and corneal blood staining are recognized as treatable pathologies if pursued within a timely manner with proper subspecialty referral. As such, Plaintiff's expert opines that with the patient's confirmed diagnoses, meaningful vision would have been possible if a referral to a cornea specialist had been obtained.

Plaintiff's expert opines that had defendants acted within the standard of care; functional vision would have been possible. Plaintiff's expert explains that the infant's condition consisted primarily of a dense vitreous hemorrhage and elevated IOP. Both of which are acute and treatable conditions that, when timely managed in a neonate, are compatible with preservation of useful vision. Plaintiff's expert further opines that regardless of possibility for functional vision, it is the standard of care for pediatric ophthalmologists to attempt to salvage any eye with potential visual function. The Plaintiff's expert then refutes the defense expert's contention that the presence of a normal left eye rendered treatment of the right eye “futile”. The expert emphasizes that the stimulation of both eyes is particularly important during infancy because binocular vision, depth perception, visual expansion, and normal neurodevelopment are established during this period and can be impaired when visual input from one eye is reduced.

Based on the submissions, Plaintiff has raised issues of fact sufficient to defeat the motion for summary judgment with respect to the medical malpractice claim. The experts set forth conflicting opinions as to whether the IOP was appropriately monitored. There is a conflict between the experts on the standard of care for a patient presenting with elevated pressure and steps that should be taken to achieve adequate pressure control. Plaintiff raises additional issues of fact on Defendant's departures from the standard of care with respect to Dr. Fredrick's failure to refer the patient to a corneal specialist to determine if visualization of the back of the eye could be improved through keratoplasty and subsequent vitrectomy.

Further, Plaintiff has raised issues of fact on proximate causation. Plaintiff offers a detailed non-speculative counter-opinion that Plaintiff's loss of functional vision was not inevitable due to injuries at birth but was directly caused by Dr. Fredrick's failure to adequately control pressure and pursue more intensive treatment of the corneal staining and vitreous hemorrhage. These issues of fact and credibility between the parties' experts must be resolved by a jury, and the parts of the motion seeking summary judgment for the medical malpractice claim must be denied. As there are issues of fact as to the underlying medical malpractice claims, the parent's derivative claims for loss of services remain viable.

Regarding the claim for lack of informed consent, pursuant to NY Pub. Health Law § 2805-d, a lack of informed consent claim cannot proceed unless the medical treatment or procedure at issue involves bodily disruption. An element of such a claim is “some unconsented-to affirmative violation of the plaintiff's physical integrity” (Hecht v. Kaplan, 221 AD2d 100, 103 [2d Dept 1996]). “Lack of informed consent does not apply where, as here, injuries allegedly resulted from a failure to undertake a procedure or postponing of a procedure” (Ellis v Eng, 70 AD3d 887, 892 [2d Dept 2010]; see also Pinnock v. Mercy Med. Ctr., 180 AD3d 1088, 1091 [2d Dept 2020]; S.W. v. Catskill Regional Med. Ctr., 211 AD3d 890, 891 [2d Dept 2022]).

In Ellis, the Appellate Division held that a physician's recommendation that the plaintiff forego adjuvant therapy could not support a lack of informed consent claim (see Ellis, 70 AD3d 887). The Court grounded this conclusion in the statutory text of NY Pub. Health Law § 2805-d, which requires a showing that “a reasonably prudent person in the patient's position would not have undergone the treatment․if he had been fully informed,” which does not apply to a situation where the patient allegedly would have undergone treatment if it had been recommended or offered. The statutory language requires an affirmative procedure or treatment which the patient allegedly agreed to without being informed of the risks, rather than a failure to inform a patient about the risks of non-treatment. As such, the Court held in Ellis that lack of informed consent does not apply where “injuries allegedly resulted from a failure to undertake a procedure or a postponing of a procedure.” (Ellis, 70 AD3d at 892).

The Second Department applied this principle in Pinnock, a case factually similar to this matter. In Pinnock, an invasive procedure, an appendectomy, had been performed on the plaintiff, but the informed consent claim was not directed at that surgery but at the surgeon's failure to simultaneously treat a separately identified condition. The Court dismissed the lack of informed consent claim because the alleged injury resulted from the failure to undertake an additional procedure, not from the procedure to which the plaintiff had been subjected to. (See Pinnock, 180 AD3d at 1089-1091.)

In this matter, Plaintiffs' claim for lack of informed consent is premised not on any failure to obtain consent for a procedure that was performed — such as the washout procedure performed on the infant — but rather on Defendants' alleged failure to inform Mother-Plaintiff of the option of surgery. Plaintiff's submissions specifically frame the claimed departure as “Defendants' decision to forgo surgical intervention during the critical first two to three months of the patient's life” as the claimed departure resulting in failure to obtain informed consent. As in Ellis and Pinnock, a physician's decision not to recommend a procedure is not a basis for a lack of informed consent. Here, the Court finds Dr. Fredrick's decision not to recommend surgery as an option for the infant does not give rise to a viable claim for lack of informed consent.

Accordingly, the Plaintiff's cause of action for lack of informed consent is dismissed as a matter of law.

To the extent Plaintiff asserted claims of negligent hiring, supervising, and credentialing, those claims are unopposed in Plaintiff's opposition papers and are therefore dismissed.

It is hereby:

ORDERED that Defendants Dr. Frederick's motion for an Order, pursuant to CPLR 3212, granting summary judgment in their favor and dismissing Plaintiff's complaint, is GRANTED TO THE EXTENT of dismissing Plaintiff's claim for lack of informed consent and negligent hiring, supervising, and credentialing, and the motion is otherwise DENIED.

This constitutes the decision and order of the Court.

FOOTNOTES

1.   The normal IOP range in a neonate is 10-21.

2.   A pooling or collection of blood inside the anterior chamber of the eye.

3.   Deprivation amblyopia: A permanent loss of visual development that occurs when light or clear images are blocked from reaching the retina during early infancy, preventing the brain from properly forming visual pathways

4.   A rare congenital eye developmental defect in which embryonic blood vessels that nourish the eye in the womb fail to dissolve.

5.   Corneal transplant

Consuelo Mallafre Melendez, J.