One of the most common elective procedures in the U.S. is Lasik eye surgery, conducted to help improve one’s vision. Millions have opted to have it in order to avoid the hassle of contacts and glasses.
While the surgery often goes well, the prevalence of it has meant our Broward medical malpractice attorneys are seeing an increasing number of cases wherein the procedure wasn’t conducted properly, facilities were inadequate or doctors failed to provide proper follow-up care.
Complications can range from irritation and blurred vision to dry eyes, light sensitivity, pain, astigmatism and sometimes even blindness. Some of these problems were at issue in the recent case of Leavitt v. Siems, weighed recently by the Nevada Supreme Court.
This case unfortunately was not decided in favor of the plaintiffs, and analyzing why helps guide others who bring such cases in the future.
According to court records, the patient consulted with a doctor regarding corrective vision surgery, noting on the patient intake form that she “always” suffers from dry eyes. The same day as the consultation, the surgery was performed on both eyes.
Immediately following, the patient lost vision in one eye and became one grade above legal blindness in the other. She experienced irritation and complications continued for several years after the surgery. Some of the problems are believed to be permanent, and she has sought ongoing treatment from various specialists.
The patient subsequently sued the doctor who performed the surgery, another doctor at the clinic and the clinic itself.
The employee doctor never responded to the complaint, and a default judgment was entered against her. Meanwhile, the primary doctor and the clinic answered with affirmative defenses, citing the patient had assumed the risks when she agreed to undergo the surgery.
The case went to trial.
The defense argued that the deterioration of the patient’s eye condition was the result of her abuse of eye-numbing drops provided after the surgery. To support this theory, the defense called one of the woman’s treating physicians, who testified he had discharged her as a patient because she refused to comply with his directions and he believed she was stealing eye-numbing drops from his clinic. He testified that use of these drops could have resulted in deterioration of vision and lack of improvement in her condition.
The plaintiff argued the doctor breached the proper standard of care in the preoperative phase, particularly as it related to her dry eyes, and by deciding to conduct the surgery the same day as the consultation. Another expert witness countered the eye-drop abuse theory. She also denied stealing drops.
Verdict was returned in favor of the defendants. The plaintiff moved for a new trial based on what she said was an improper reliance on a theory of drug abuse, and due to the fact that one of her treating doctors had testified to alternate causes of her condition without the court requiring those conclusions to be held to a reasonable degree of medical probability.
It later came to light that the defense attorney was improperly communicating directly with the plaintiff’s treating physician/witness.
Still, the court denied a motion for a new trial. Further, the court noted the drug abuse theory was an effort to contradict the plaintiff’s stance, not offer an entirely new alternative theory of causation. The court indicated such testimony need not reach a reasonable degree of medical probability.
The plaintiff appealed, arguing this reasoning was incorrect, and the testimony should have been held to the higher standard. However, the state supreme court affirmed, finding that the reasonable degree of medical probability standard is only applicable depending on the purpose of the testimony. The court found that defendants may offer “reasonable alternative causes” without having to meet the standard – so long as they are relevant and supported by research. The allowance of this is predicated on whether the defense expert witness includes the plaintiff’s theory of causation in his or her analysis.
The court indicated the expert witness testimony was proper, despite improper communications between the defense attorney and the witness. Those communications, the court ruled, didn’t change the substance of the testimony.
While this case had a disappointing outcome for the plaintiff, many others have been successful in securing compensation complications arising from Lasik eye surgery. It’s important to consult with an experienced personal injury attorney before deciding whether to pursue a case.
If you have suffered injury, contact the Hollander Law Firm at 888-751-7770 for a free and confidential consultation. There is no fee unless we win.
Leavitt v. Siems, July 10, 2014, Nevada Supreme Court
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