Cilione v Corneal

[*1] Cilione v Corneal 2005 NY Slip Op 52409(U) Decided on August 11, 2005 Supreme Court, New York County Schlesinger, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 11, 2005
Supreme Court, New York County

Frank Cilione, Plaintiff,

against

Ophthalmic Consultants Corneal and REFRACTIVE SURGERY ASSOCIATES, P.C., LASER and CORNEAL SURGERY ASSOCIATES, P.C. and MARK G. SPEAKER, M.D., PH.D., Defendants.



122628/01





Attorney for the Plaintiff:

SAVITT LAW FIRM, PLLC

Address : 460 W. 34TH, MEZZANINE

NEW YORK, NEW YORK 10001

Attorney for the defendant:

Firm : KOPFF NARDELLI & DOPF

Address : 440 NINTH AVENUE

NEW YORK, NEW YORK 10001 Alice Schlesinger, J.

In this medical malpractice action, plaintiff Frank Cilione alleges that defendants' negligent performance of LASIK surgery and follow-up care on his eyes caused blindness in plaintiff's left eye, resulting in a need for a corneal transplant. Among other things, plaintiff contends that defendants failed to diagnose and properly treat a condition known as herpes simplex lesion. Plaintiff also alleges a lack of informed consent.

Defendants have moved for summary judgment dismissing this action following the completion of discovery. In addition to copies of the medical records and the transcripts of the parties' depositions, defendant has presented an affidavit from a medical expert, Anthony J. Kameen, M.D. Dr. Kameen, who is licensed to practice medicine in Maryland, is board certified in ophthalmology and is an experienced LASIK surgeon. He opines with reasonable medical certainty that no evidence exists that defendants departed from good and accepted medical care or that any of their actions caused plaintiff to suffer a loss of vision. Specifically, Dr. Kameen attests (at ¶ 7) that the "manifestation of herpes simplex lesion nine months after the surgery bears no relationship whatsoever to the performance of the surgery," such a condition being instead "the result of a virus in the body" (¶ 6). He adds (at ¶ 9) that no physician nor the pathologist confirmed the lesion as herpes. Finally, Dr. Kameen notes (at ¶ 8) that plaintiff's "visual problems have been cured" by a subsequent corneal transplant by a subsequent treater. Regarding the alleged lack of informed consent, plaintiff signed a lengthy consent form. Dr. Kameen opines (at ¶ 8) that defendants had no duty to specifically warn plaintiff about herpes.

Although duly served with the motion, plaintiff has defaulted. Since plaintiff did not submit an expert affidavit of his own, the record is devoid of competent evidence that defendants departed from the standard of care and caused plaintiff injury, and thus no issues of fact are raised. Bailey v. Owens, 17 AD3d 222 (1st Dep't 2005).

Accordingly, it is hereby

ORDERED that the defendants' motion for summary judgment dismissing the complaint is [*2]granted on default, and the Clerk of the Court is directed to enter judgment in favor of defendants dismissing the complaint in its entirety, without costs or disbursements.

Dated: August 11, 2005

__________________________

J.S.C.