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A medical malpractice suit against a Manhattan plastic surgeon, lodged by a patient who went blind in one eye after having cosmetic surgery, will go forward, a state appeals court has ruled, because the surgeon has not shown that he adhered to acceptable medical practice in his method of injecting fat into the patient’s face.

Specifically, wrote an Appellate Division, First Department panel, the surgeon, Dr. Lawrence Reed, has not shown that he had “aspirated,” or properly drawn back with the syringe before injection, when he performed the 2015 elective cosmetic surgery. Aspirating is important, the panel’s opinion made clear, because it seeks to prevent blood from getting into the syringe and from there potentially being sent into a patient’s blood vessel, where it may migrate into an eye.

Pointing to a lack of certainty in Reed’s own deposition testimony, the unanimous panel ruled that the surgeon failed to meet his prima facie burden at the dismissal motion stage “of establishing that he did not depart from accepted medical practice in his method of injecting fat into plaintiff’s [Alla Bahnyuk’s] face.”

The panel then pointed out that in support of his dismissal motion lodged in the lower court,  Reed submitted the transcript of his own deposition, a plastic surgery expert’s affidavit, and Bahnyuk’s medical records.

Keying in on Reed’s deposition—in which, the panel noted, he’d explained that aspiration is the technique of drawing back on a syringe prior to injecting—the panel said that Reed only described the medical technique “in general terms, and never specifically stated that he used this technique during [Bahnyuk’s] procedure.”

“In fact,” said the panel, Reed “stated ‘[t]hat’s the technique that I think I used (emphasis added [by panel]).’”

The panel then added, “Defendant’s generalized description of the aspiration technique is insufficient to establish prima facie that he properly used this technique in this case,” and wrote that “notably, defendant did not submit his own affidavit with the motion clarifying this equivocal testimony.”

The panel’s decision affirmed the denial of dismissal ruling made in 2018 by Manhattan Supreme Court Justice Joan Madden.

Panel Justices Dianne Renwick, Rosalyn Richter, Ellen Gesmer, Cynthia Kern and Anil  Singh explained in their July 30 opinion that, in March 2015, Reed performed fat transfers to parts of Bahnyuk’s face and that “one of the known risks of this procedure is that fat could enter a blood vessel and migrate to the eyes, causing blindness.”

Bahnyuk awoke from surgery complaining of eye pain and, the day after the surgery, a neuro-ophthalmologist determined that she had “lost vision from a central retinal artery occlusion secondary to fat embolism,” the justices said.

Bahnyuk launched a lawsuit under the theory that Reed failed to properly aspirate the syringe, the justices said.

The justices noted in their opinion analysis that Reed’s expert’s affidavit didn’t establish that Reed had properly aspirated during the surgery “because it is based on the same deposition testimony [from Reed] that we find lacking.”

Daniel Minc, a partner at Rosenberg, Minc, Falkoff & Wolff representing Reed, could not be reached for comment.

Nor could Daniel Ratner, a Heidell, Pittoni, Murphy & Bach partner representing Bahnyuk.