LASIK eye surgery is a routine procedure conducted to correct vision problems and grant people the opportunity to live a life free of contacts or glasses. Generally, the procedure is safe. However, Manhattan medical malpractice lawyers know when things go wrong, complications may be serious and plaintiffs could be entitled to collect damages for their injuries.
Recently in New York, the New York Supreme Court, Appellate Division, First Department, upheld a verdict favoring an eye surgery plaintiff who suffered severe vision complications as a result of undergoing LASIK at a clinic in Midtown. According to the case file in Devadas v. Niksarli, the plaintiff was a 25-year-old pharmacist who went with his wife to her consultation to undergo the surgery.
At the time, plaintiff wasn’t personally considering undergoing the surgery, although he did suffer from nearsightedness and frequent headaches resulting from having to wear glasses in front of a computer screen.
While at the office, he decided to undergo an evaluation for himself. After performing a series of tests, defendant doctor told plaintiff he was a good candidate for the surgery. An appointment was schedule for a date in April 2004. Prior to the appointment, he was given a prescription pain pill and asked to sign a consent form, which he did. That form listed a series of possible complications, which included double vision, haloed vision, less-than-corrected vision, evening glare, ecstasia and other possible conditions.
He underwent surgery and returned the next day, as instructed. At the time, he told defendant one of his eyes was blurry and tearing. He felt as if there were grains of sand in his eye. The doctor told him this was a temporary and normal condition that would eventually subside.
At the next appointment, two weeks later, plaintiff again complained of blurry vision, dryness and irritation. Plaintiff indicated defendant was dismissive, recommended wetting drops. At a six-week follow-up appointment, plaintiff had the same complaints and again indicated defendant was dismissive. In fact, he said defendant told him he was “expecting too much” and “needed to give it time to heal.”
However, the blurriness never really went away. Plaintiff learned to adapt to it, but within three years, it became unbearable. It had progressed into double vision and visual distortions. He again returned to defendant, who diagnosed him with bilateral bulging of the cornea, which the doctor told him was genetic with no known cure. He assured him the LASIK had nothing to do with the condition.
Plaintiff filed a medical malpractice lawsuit against the physician in May 2007. Defendant responded the 2.5-year statute of limitations for medical malpractice had passed, as its accrual began on the date of the April 2004 surgery. However, plaintiff successfully invoked the continuous treatment doctrine, contending accrual of the action didn’t begin until the last treatment, which was in February 2007.
At trial, expert witness for plaintiff testified plaintiff suffered from a mild, dormant genetic eye condition, and the surgery weakened the cornea and triggered the condition to become active. While the surgery was performed well, the expert opined, it should never have been performed in the first place. Further, he testified the condition would not have manifested until a month to five years after the surgery, meaning the initial blurriness would have been related directly to the surgery.
A verdict for the plaintiff in the amount of $4.2 million was returned by the jury for past pain and suffering, future pain and suffering (over the course of 45 years), lost earnings, future lost earnings and his wife’s loss of consortium.
Defendant appealed on the statute of limitations assertion. However, the appellate court upheld the trial court’s assertion that the continuous treatment doctrine was applicable, and the judgment appropriate.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
Additional Resources:
Devadas v. Niksarli, Sept. 4, 2014, New York Supreme Court, Appellate Division, First Department
More Blog Entries:
Cafaro v. Ceka – Medical Malpractice Claim Must Establish Failure to Meet Care Standard, Sept 3, 2014, Manhattan Medical Malpractice Lawyer Blog
