Shirley T. Kosinski et al. v. Edward J. Wladis et al.
Attorneys and Parties
Brief Summary
Medical malpractice—summary judgment standards and admissibility/sufficiency of expert affidavits, including use of an out-of-state expert and application of the common-law locality rule [common-law standard that a physician must exercise the degree of learning and skill ordinarily possessed by physicians in the locality where the doctor practices].
Granted defendants' motion for summary judgment dismissing the complaint, crediting defendants' expert and finding plaintiffs' expert speculative and discounted because he practiced out of state.
The order granting summary judgment to defendants and dismissing the complaint.
Plaintiffs' expert affidavit specifically addressed standard-of-care deviations and causation, directly countered defendants' expert, and was neither conclusory nor speculative; the court erred by discounting the out-of-state expert under an outdated view of the locality rule and by improperly weighing competing expert opinions on summary judgment.
Background
After falling down stairs on May 8, 2016, Shirley T. Kosinski sustained multiple fractures around her left orbit. On May 12, 2016, plastic surgeon Oluseyi Aliu performed open reduction and internal fixation of a zygomaticomaxillary complex fracture and repaired the orbital floor with a plate. A later computed tomography (CT) scan showed the orbital floor plate had shifted into the sinus and that the sinus appeared small. Ophthalmologist Edward J. Wladis suspected silent sinus syndrome and referred Kosinski to otolaryngologist Carlos Pinheiro-Neto. On November 1, 2017, Wladis and Pinheiro-Neto performed a joint surgery: Wladis placed a new orbital floor implant (a Medpor plate), stacking it atop the prior plate, while Pinheiro-Neto addressed the sinuses. Kosinski later reported diplopia (double vision). Wladis performed further eyelid surgeries on March 15, 2018 and July 3, 2018 to address eyelid retraction and positioning. Unsatisfied, Kosinski consulted Michael Grant at the University of Maryland, who removed and replaced the plates on December 28, 2018 and performed further eyelid surgery in April 2019. In December 2020, plastic surgeon Guy Massry performed a graft and cheek-lift; other treatments included injections for eyelid and eyelash issues. In September 2019, Kosinski and her spouse commenced this malpractice action alleging negligent diagnosis and surgical management, including misdiagnosis of silent sinus syndrome, improper stacking of orbital implants, and improper sequencing of eyelid versus orbital floor repairs causing persistent diplopia and eyelid malposition.
Lower Court Decision
Supreme Court (Albany County) granted defendants' summary judgment motion. Relying on defendants' expert, a board-certified ophthalmologist who opined that Wladis met the standard of care, used an acceptable implant and technique, appropriately tested placement intra-operatively, and that subsequent procedures were cosmetic or attributable to the initial trauma or earlier surgery, the court concluded defendants established prima facie entitlement to judgment. The court found plaintiffs' opposing expert (Michael Grant) speculative and conclusory and appeared to discount his opinions because he practiced in another state.
Appellate Division Reversal
Reversing, the Appellate Division held defendants met their prima facie burden, but plaintiffs' expert affidavit raised triable issues of fact by identifying specific departures—misdiagnosis of silent sinus syndrome, antiquated and imprecise stacking of implants creating risks of dead space and infection, improper placement causing diplopia, and improper sequencing of eyelid repairs before definitive orbital floor reconstruction—and by linking those departures to Kosinski’s injuries. The court clarified that reliance on the out-of-state status of plaintiffs' expert was erroneous given the erosion of the locality rule [common-law standard that a physician must exercise the degree of learning and skill ordinarily possessed by physicians in the locality where the doctor practices] and the propriety of testimony on national minimum standards. Viewing the evidence in the light most favorable to plaintiffs, the conflict between qualified experts created issues for the factfinder, not for resolution on summary judgment. The order was reversed, defendants' motion denied, and the matter remitted.
Legal Significance
Conflicting, nonconclusory expert affidavits on standard of care and causation preclude summary judgment in medical malpractice cases; courts may not weigh credibility at this stage. An out-of-state medical expert may opine on national standards notwithstanding the traditional locality rule, whose justification has diminished given modern training and information dissemination.
In New York medical malpractice cases, defendants may establish a prima facie case with a detailed expert affidavit, but plaintiffs defeat summary judgment by offering a specific, record-based expert opinion identifying departures and causation; courts should not discount an out-of-state expert who articulates national standards nor resolve credibility disputes between experts on summary judgment.