On February 6, 2019 the appellate court for Richmond County reversed a trial Judge who denied a motion for summary judgment to an opthalmologist sued for failing to refer his patient to a neurologist. The patient presented to the opthalmologist complaining of pain in his right eye and a droopy eyelid. The opthalmologist  suspected glaucoma as the cause and instructed the patient to return in six months or sooner if conditions didn't improve. Unfortunately, six months later the patient was diagnosed with a non-cancerous brain tumor called a meningioma and underwent tumor resection surgery. The opthalmologist moved to dismiss the claim arguing he complied with the standard of care and that even if plaintiff's tumor had been diagnosed six months earlier, the same treatment would have been necessary.

The appellate court found that plaintiff's expert opthalmologist's affidavit was sufficient to address the standard of care (negligent failure to refer the patient to a neurologist) but insufficient to overcome the causation defense that the tumor resection was inevitable, even if diagnosed sooner.The appellate court noted that the plaintiff's opthalmologist failed to explain whether he had any experience in the treatment of meningioma's or that he had familiarized himself with the neurology standard of care for treatment. Without establishing this foundation there was no evidentiary basis for plaintiff's opthalmologist's contention that radiation treatment, rather than surgical resection would have been available. The malpractice claim was dismissed because the plaintiff needed an affidavit from a neurologist or an opthalmologist who was familiar with the treatment of meningioma's to oppose the summary judgment motion. Simpson v Edghill, 2019 N.Y. Slip Op. 00923