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DECEMBER 10, 2001

$1.7M For Botched Laser-Eye Surgery Suggests New Mass Tort

By Genevieve Haas
Lawyers USA

© 2001, Lawyers Weekly

A Kentucky jury last month awarded a record $1.7 million verdict to a plaintiff who had undergone botched laser-eye surgery - and plaintiffs' lawyers are now saying that the popular, but sometimes hazardous, "LASIK" procedures may become a significant mass tort.

Ariel Berschadsky, a New York attorney who has done extensive research on the issue, told Lawyers USA that "awards of this kind will certainly bring LASIK cases to the attention of medical malpractice attorneys and [make them] realize that a lot these cases are meritorious and should be taken."

Berkschadsky, a LASIK plaintiff himself, speculated that "a lot of cases are not brought because patients have a hard time getting a lawyer who is knowledgeable enough about the surgery to be willing to take the case."

More than a million laser-eye surgeries are performed each year, and a growing number of plaintiffs have filed suit claiming that some unscrupulous medical professionals are performing the surgery without proper screening.

LASIK surgery - which can be performed in minutes on an outpatient basis - is enormously profitable and competition for patients has exploded in recent years.

The $1.7 million Kentucky case was the first laser-eye surgery case for Louisville attorney Thomas Herren, who said he was surprised by the amount of attention the verdict received.

In addition to media inquiries, Herren told Lawyers USA that he has received a number of calls from potential plaintiffs.

The Kentucky verdict is the second million-dollar-plus laser-eye surgery award in the last two years. In 2000, a plaintiff in Buffalo, N.Y., was awarded $1.2 million after his eye was sliced by a laser.

Also last year, a doctor in Durham, N.C., agreed to pay $1 million to settle a lawsuit filed by a man who claimed that he was forced to have a cornea transplant after undergoing botched surgery with a low-cost laser.

Medical Error Or Defective Machine?

Herren's client, plaintiff Tonya Oliver, had sought laser eye surgery to correct her astigmatism in 1998.

A preliminary surgery conducted by the defendant, Dr. Thomas Abell, was a success. But the doctor, according to the plaintiff, encouraged her to return for a minor correction of her left eye - known in the industry as an enhancement.

The plaintiff had the corrective procedure five months later. But, when the bandages were removed, the plaintiff's eye had gotten worse.

She was scheduled for another enhancement a week later and a fourth surgery a month after that when her vision had still failed to improve. After this fourth and final LASIK procedure, the plaintiff started seeing another doctor.

On the advice of specialists, the plaintiff ultimately received a cornea transplant, which has resulted in several complications, said Herren. Although the transplant was technically a success, the drastic measure failed to substantially improve the vision in the plaintiff's eye.

The plaintiff sued Abell, a physician who had performed thousands of the surgeries. In the complaint, the plaintiff claimed that, during the initial enhancement, the doctor entered the wrong data into the LASIK machine, causing the laser to operate on the wrong part of the plaintiff's eye, which made the problem worse rather than better.

The defendant, in turn, argued that the plaintiff was injured because the laser was defective. He also contended that the plaintiff knew the risks inherent in the operation.

Informed Consent

According to Berschadsky and Herren, informed consent often lies at the heart of a LASIK med-mal suit.

In this case, the defendant's patients were required to sign a 14-page consent form acknowledging the risks and watch a video that detailed all the possible complications.

"The problem was, even [the defense's] own experts admitted that you don't consent to a mistake in plugging in the [machine]," said Herren.

Berschadsky concurred, noting that, while patients can consent to unavoidable risks, they are not signing away their right to sue for medical errors - either in the operation itself or in the evaluation of appropriate candidates.

"All the lawsuits that I've seen have been due to poor screening," he said.

Herren said his case rested on three crucial pieces of evidence: the doctor's preoperative notes; the fact that he scheduled a second enhancement a week after the first; and the testimony of a former employee who claimed that the doctor had admitted his mistake.

The defense did not dispute the fact that the doctor's preoperative notes included a calculation that, if used during surgery, would have damaged the plaintiff's eye. However, there was no entry of the calculation on the official surgery plan. The doctor argued that he realized his mistake before the surgery and entered the correct data in the machine.

"But the problem was that the outcome was exactly what you would expect if he had operated on the wrong axis," said Herren, noting that it was also unusual for the surgical plan to be incomplete.

A second piece of crucial evidence was the rapid scheduling of a second enhancement procedure.

After the first enhancement, the plaintiff could not see the big "E" on the eye chart, according to Herren.

"[The doctor] set her up for a procedure one week later," Herren said. "We later learned that performing a procedure only one week later is unheard of. It takes a while for the eye to settle down."

Berschadsky agreed that scheduling another surgery so close to the first was extremely irregular, and suggested that it gave rise to an appearance that the defendant may have been trying to cover his tracks.

The third piece of important evidence for the plaintiff was testimony by an ex-employee of the doctor. The officer worker, who had been laid off, testified that she overheard the doctor tell the plaintiff after the surgery that "the prescription didn't add up," meaning that he had entered the wrong data into the laser.

Herren said that, at the time, the comment did not register with the plaintiff or her husband, but that the office worker - who got another job within a day of leaving the defendant's office - was extremely credible and damaging to the doctor's defense.

The Doctor's Case

Louisville, Ky., defense attorney James Grohmann, who took over the case after the verdict, told Lawyers USA that the ex-employee's testimony did not make sense.

"I think that the office worker was a disgruntled ex-employee, but she testified that she overheard the doctor say he operated on the wrong axis," Grohmann said. "So if you believe that witness, you've got to believe that he was open with [the plaintiff] - and if you don't believe her, then where is the proof [that he covered up]?"

Grohmann said that, although the plaintiff claimed all along that her cornea was the source of her lost vision, a cornea transplant failed to correct the problem even though the surgeon testified that it was successful.

"If the cornea were truly the problem, why didn't the transplant improve her vision?" he asked.

The defense suggested that the plaintiff had been exaggerating the extent of her injury - a common defense in LASIK cases where the only evidence of vision impairment is often the plaintiff's own testimony, since a person can see halos and experience extreme glare and still test with 20/20 vision.

In this case, Grohmann said, expert witnesses testified that the plaintiff's vision should have improved.

"She offered subjective evidence that her vision was severely damaged, and no one can get into her mind and dispute that," he said. "All the objective evidence says that she should see but she says she can't."

Current Status

The $1.7 million verdict included $400,000 for future pain and suffering and mental anguish, $300,000 for past pain and suffering, $50,000 for future medical expenses, $10,000 for past medical expenses, $48,000 for lost wages and $472,000 for permanent impairment of earning capacity.

The award also included $500,000 in punitive damages. In his motion for a new trial, Grohmann has challenged that punitive award.

According to Grohmann, there was no proof on which to base punitive damages because there was no proof of willful negligence and because the jury wasn't given instructions on how to arrive at an amount.

But Herren said the jury was allowed to award punitives because experts from both sides agreed that if there had been a mistake in the calculations, the defendant would have been ethically and legally obligated to tell his patient about the error.

"When both sides said that, the jury inferred that he concealed what happened…it really began to look like he was covering up."

Grohmann, however, challenged that assessment.

"Essentially, every case has a denial of a mistake," he said. "By [the plaintiff's] logic, in every case where you deny a mistake, that would always give rise to punitive damages."

The pending motion also notes that the judge's husband is a member of the same firm as the plaintiff's attorneys, Herren and Charles Adams.

But Herren downplayed the law-firm association, saying that the defense knew of the relationship long before the trial and implicitly waived any objection.

Grohmann, however, contends that, according to the relevant judicial canon, the judge should have recused herself.

"The judge should not have tried the case. She is married to a lawyer in the office of the plaintiff's law firm," Grohmann said. "[The judge's husband] is one of three lawyers in the firm."

Grohmann said that he does not know why the defense had failed to raise the conflict of interest issue earlier, but insisted that it was not waived.

"The only way to waive it would have been for both parties to sign an agreement stating that they waived that issue," Grohmann said, noting that his client is still considering whether to appeal if a new trial is denied.

* * *

Plaintiffs Attorneys: Thomas Herren and Charles Adams of Herren & Adams in Lexington, Ky.

Defense Attorneys: Eric Jensen of Whon, Setler & Associates in Louisville, Ky., tried the case. The defendant's new lawyer is James Grohmann of O'Bryan, Brown & Toner, PLLC in Louisville, Ky.

The case: Oliver v. Abell; Fayette County Circuit Court; Judge Rebecca Overstreet.


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