Introduction

In Clinkscales v. Tostanoski (2025 NY Slip Op 04701), the Appellate Division, Second Department, refined New York’s medical malpractice and informed consent jurisprudence in the context of ophthalmologic care. The case arises from a sequence of eye procedures performed on the plaintiff’s right eye: a manual cataract surgery by Dr. Jean R. Tostanoski in February 2018 and a YAG vitreolysis by Dr. Jay A. Fleischman in February 2019. The plaintiffs claimed both negligent treatment and inadequate informed consent, alleging the care led to a retinal tear and detachment. The professional practice, Hudson Valley Eye Associates, LLP, was sued on a vicarious liability theory.

The decision squarely addresses two recurring issues in medical litigation:

• What must be disclosed to patients before an elective laser procedure such as YAG vitreolysis — specifically, whether “watchful waiting” is a material alternative and whether retinal detachment is a material risk that must be disclosed.
• The scope of a surgeon’s duty after referral — whether a physician who appropriately defers to a specialist must supervise the specialist’s evaluation and treatment.

The Second Department modified the trial court’s summary judgment determinations, ultimately reinstating lack-of-informed-consent claims against Dr. Fleischman and Hudson Valley, while fully dismissing all malpractice and informed consent claims against Dr. Tostanoski. The ruling clarifies the evidentiary burdens on summary judgment and the substantive contours of informed consent and physician duty in multi-physician care.

Summary of the Judgment

The Appellate Division modified the Supreme Court’s order as follows:

• Informed Consent:
  • As to Dr. Tostanoski (manual cataract surgery), the court affirmed summary judgment dismissing the lack-of-informed-consent claim. Defendants established adequate disclosure, that a reasonable patient would not have declined the surgery, and lack of proximate causation.
  • As to Dr. Fleischman (YAG vitreolysis) and Hudson Valley, the court reinstated the lack-of-informed-consent claims. Plaintiffs’ expert affirmation raised triable issues regarding disclosure of the risk of retinal detachment, the material alternative of “watchful waiting,” and causation.
• Medical Malpractice:
  • As to Dr. Tostanoski, the court granted full summary judgment on the malpractice claim (beyond the portion already dismissed by the trial court). The court held she did not depart from accepted practice; her referral/deferral to a retinal specialist for the posterior capsular opacification was appropriate; and she had no duty to supervise the specialist’s subsequent evaluation and treatment.
  • As to Dr. Fleischman and Hudson Valley, the court allowed the malpractice claims to proceed. Plaintiffs’ expert raised triable issues of departure from the standard of care and causation, precluding summary judgment.

The modified order was affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

Analysis

Precedents Cited and Their Influence

• Ciceron v. Gulmatico, 220 AD3d 732:
  • Provided the three-part test for lack of informed consent in New York: (1) failure to disclose reasonably foreseeable risks, benefits, and alternatives that a reasonable practitioner would disclose; (2) that a reasonably prudent patient would not have undergone the treatment if fully informed; and (3) proximate cause.
  • Guided the court’s prima facie and opposition analyses on both the cataract surgery and YAG vitreolysis informed consent claims.
• Pirri-Logan v. Pearl, 192 AD3d 1149:
  • Reinforced the Ciceron framework and the summary judgment burden-shifting dynamic in informed consent cases.
• Rich v. Donnenfeld, 191 AD3d 909; Many v. Lossef, 190 AD3d 721; Santiago v. Filstein, 35 AD3d 184:
  • Stand for the proposition that plaintiff’s expert submissions can generate triable issues on (i) adequacy of disclosure, (ii) material alternatives, and (iii) causation in informed consent claims.
  • Supported the court’s reversal as to Dr. Fleischman, emphasizing that disputes over the scope of risk disclosure and the availability of non-intervention (“watchful waiting”) are quintessential jury issues when supported by competent expert opinion.
• Hackett v. Bybordi, 212 AD3d 598; Toby v. Meneshian, 222 AD3d 1029; Stukas v. Streiter, 83 AD3d 18; Hall v. Bolognese, 210 AD3d 958:
  • Articulate med-mal summary judgment standards: defendant’s prima facie burden (no departure or no causation), the need to address the bill of particulars specifically, and that conflicting expert opinions typically preclude summary judgment.
  • Framed the court’s approach to both doctors’ malpractice claims, leading to dismissal as to Dr. Tostanoski but not as to Dr. Fleischman.
• Gruen v. Brathwaite, 215 AD3d 927:
  • Illustrates defendants’ satisfying their prima facie burden in med-mal through competent expert submissions on departure and causation.
  • Supported the grant of summary judgment for Dr. Tostanoski.
• Wasserman v. Staten Island Radiological Assoc., 2 AD3d 713; Aaron v. Raber, 188 AD3d 967:
  • Confirm that deferring to an appropriate specialist is not a deviation from accepted practice and that a referring or co-treating physician generally owes no duty to supervise another specialist’s independent evaluation and treatment.
  • These authorities were pivotal in extinguishing the residual malpractice theory against Dr. Tostanoski (after the trial court had already dismissed the cataract-surgery aspect), recognizing appropriate delegation to a retinal specialist and rejecting a duty-to-supervise theory.

Legal Reasoning

The court’s reasoning tracks the established two-step summary judgment analysis: defendants’ prima facie showing and plaintiffs’ responsive showing raising triable issues. The opinion applies this framework distinctly to the informed consent and malpractice causes of action.

• Lack of Informed Consent — Cataract Surgery (Dr. Tostanoski):
  • Prima facie showing: Through deposition testimony and expert affirmation, defendants showed adequate disclosure of “risks, benefits, and alternatives” to performing cataract surgery manually (versus laser-assisted), that a reasonably prudent patient would not have declined the surgery, and that the manual surgery did not proximately cause the plaintiff’s retinal injury.
  • Opposition: Plaintiffs did not raise a triable issue. Notably, the lack of proximate cause element was fatal — the injury alleged (retinal tear/detachment) was not tied to the manual approach, defeating the third element of informed consent (causation) even apart from disclosure.
• Lack of Informed Consent — YAG Vitreolysis (Dr. Fleischman):
  • Prima facie showing: Defendants’ materials suggested adequate disclosure and lack of causation.
  • Opposition: Plaintiffs’ expert created triable issues on:
    • Whether the risk of retinal detachment from YAG vitreolysis was adequately disclosed;
    • Whether “watchful waiting” constituted a material alternative that a reasonably prudent patient might have chosen if fully informed;
    • Whether the procedure proximately caused the injuries.
    The court held these are jury questions, echoing Rich, Many, and Santiago.
• Medical Malpractice — Dr. Tostanoski:
  • Defendants established no departure from accepted practice and no causation. Crucially, the court found that deferring to a retinal specialist for assessment and treatment of a posterior capsular opacification comported with accepted standards (Wasserman) and that no duty existed to supervise the specialist’s independent care (Aaron).
  • Plaintiffs failed to raise triable issues. Thus, the court expanded the trial court’s earlier partial dismissal (limited to the cataract surgery) to a complete dismissal of all malpractice claims against Dr. Tostanoski.
• Medical Malpractice — Dr. Fleischman:
  • Although defendants made a prima facie showing, plaintiffs’ expert raised triable issues on departure and causation, triggering the settled rule that conflicting medical expert affidavits are for the jury (Hall v. Bolognese). Summary judgment was correctly denied.
• Vicarious Liability — Hudson Valley Eye Associates, LLP:
  • Because claims against Dr. Fleischman survive, vicarious liability claims against the practice also survive. Conversely, with the dismissal of claims against Dr. Tostanoski, any vicarious liability predicated on her conduct falls away.

Impact and Practical Implications

The decision has several immediate and forward-looking effects in New York medical litigation, particularly in ophthalmology and other specialties using elective laser interventions:

• Informed Consent for Elective Laser Procedures:
  • The recognition of “watchful waiting” as a material alternative to YAG vitreolysis, where supported by expert opinion, elevates the duty to disclose non-intervention as a bona fide option when reasonable under the circumstances.
  • Explicit discussion of retinal detachment risk may be required to satisfy the disclosure duty for YAG vitreolysis. Failure to address such risk can create triable issues, even when generic risks are discussed.
• Strategic Use of Expert Affidavits:
  • For plaintiffs, detailed expert affirmations focused on (i) specific undisclosed material risks, (ii) concrete alternatives (including watchful waiting), and (iii) causal chains linking the procedure to the injury, can defeat summary judgment on informed consent and malpractice.
  • For defendants, satisfying the prima facie burden requires tailored expert submissions addressing each specific allegation in the bill of particulars, including the reasonableness of disclosures and causation.
• Deferral to Specialists and Scope of Duty:
  • Clinkscales underscores that appropriate referral/deferral to a qualified specialist is within accepted practice and does not impose a duty to supervise that specialist’s independent clinical decisions.
  • This clarification protects referring physicians from supervisory liability in multi-physician care, provided the referral is appropriate and the referring physician’s own care meets standards.
• Vicarious Liability:
  • Group practices remain exposed to vicarious liability where claims against the physician survive, emphasizing the importance of institutional consent protocols and documentation.
• Litigation Posture:
  • The opinion reiterates that where competent experts conflict on core issues (disclosure, departures, causation), summary judgment is disfavored and cases should proceed to trial.

Complex Concepts Simplified

• Lack of Informed Consent:
  • A separate cause of action from malpractice. It does not ask whether the doctor’s technique was negligent; instead it asks whether the patient was given enough information about risks, benefits, and alternatives to make an informed decision.
  • Three elements must be proven: (1) inadequate disclosure of material risks and alternatives; (2) a reasonable patient would have declined if fully informed; (3) the lack of disclosure caused the injury.
• “Watchful Waiting”:
  • A conservative approach where the physician and patient monitor the condition without immediate intervention. Here, it is treated as a potential “alternative” that may need to be disclosed if reasonable in the circumstances.
• YAG Vitreolysis:
  • A laser procedure aimed at treating vitreous floaters by disrupting them. It is distinct from YAG capsulotomy (commonly for posterior capsular opacification). Risks can include retinal injury; whether and how such risks must be disclosed is central to informed consent.
• Posterior Capsular Opacification (PCO):
  • A clouding of the lens capsule that can occur after cataract surgery. The court referenced the appropriateness of a surgeon deferring assessment/treatment of PCO to a retinal specialist, reinforcing that such deferral can be within accepted practice.
• Medical Malpractice:
  • Requires proof of (1) a deviation from accepted medical standards and (2) that the deviation caused injury.
  • In summary judgment, defendants may win by showing either no deviation or no causation; plaintiffs must then present expert evidence to create a factual dispute.
• Vicarious Liability:
  • An employer or practice may be liable for an employee physician’s negligence committed within the scope of employment. If claims against the physician survive, so typically do vicarious claims against the employer.
• Summary Judgment and “Triable Issues”:
  • Summary judgment is granted only when there is no genuine dispute of material fact. If the parties submit conflicting expert opinions on key issues, a jury must resolve those disputes, and summary judgment is not appropriate.

Conclusion

Clinkscales v. Tostanoski provides two significant clarifications in New York law:

• In informed consent, especially for elective laser procedures like YAG vitreolysis, disclosure may need to include the material risk of retinal detachment and the non-interventional alternative of “watchful waiting.” Competent expert affidavits contesting these points will typically preclude summary judgment.
• For referring or co-treating physicians, appropriately deferring to a specialist is not a departure from accepted practice, and there is no general duty to supervise the specialist’s independent treatment decisions.

On the facts, the Second Department dismissed all claims against the cataract surgeon, Dr. Tostanoski, while allowing malpractice and informed consent claims against the retinal specialist, Dr. Fleischman, and vicarious claims against Hudson Valley, to proceed. The decision emphasizes careful consent discussions tailored to the procedure’s specific risks and alternatives, and it confirms that liability in multi-physician care remains grounded in each provider’s own role and duties. In future cases, litigants should expect close scrutiny of consent content and documentation, the reasonableness of non-intervention as an alternative, and the propriety of inter-physician referrals, with juries resolving expert-driven disputes.