Beverly Hills Eye Medical Group, Inc.
12561 Promontory Road Los Angeles, CA. 90049
Phone 323 653-3800 Fax 310 472-4244
April 27, 2002
Steven A. Friedman, M. D. Physician and Attorney at Law 850 West Chester Pike, 1st Floor Havertown, PA 19083
RE: Dominic Morgan v Nevyas Eye Associates-report on standard of care deviations
Dear Dr. Friedman:As you requested, I have examined your client and reviewed the records you have forwarded to me over the last 3 months. This report will summarize what I believe to be deviations from the standard of care by Nevyas Eye Associates in the treatment of your client, Dominic Morgan. His examination will be summarized in a separate report.
| 1 | Mr. Morgan was not an appropriate candidate
for an FDA study where the protocol lists under B, 6 "best
corrected visual acuity of 20/40 or better in both eyes". Even
without the FDA study criteria, he would not be considered a "good
candidate for LASIK". Mr. Morgan stated very clearly in his record
and maintains by history that his best-corrected spectacle visual acuity
was never better than 20/50. He did have a refraction on March 10, 1998,
which showed a best corrected visual acuity of 20/40-2 in each eye.
While this is close to 20/40 it is not 20/40. A letter from Dr.
Anita Nevyas to Dr. Bellin on 12-18-98 reported his preoperative vision as
20/40-2 to 20/50 and a letter to Dr. DeJuan on March 27, 2000 reports
his best-corrected visual acuity as 20/50. A letter from Dr.
Herbert Nevyas to Dr. Grace Tammera on 8/20/98 reported that he had 20/50 vision
in each eye with full correction before his surgery. This fact combined
with his history clearly noted in the record should have disqualified
him from an FDA study requiring best corrected visual acuity of 20/40 or
better.
Rather than emphasizing the likely increased risks of performing LASIK in a patient with already compromised vision secondary to retinopathy of prematurity (ROP), the notes at the Nevyas Eye Center state that he is a "good candidate for LASIK". Exclusion criteria C, 5 of the protocol lists the "Presence of any clinically significant abnormality on physical or ophthalmic examination that would contraindicate outpatient refractive surgery." ROP would be a clinically significant abnormality. I do not know of any surgeon who has performed LASIK on a patient with Mr. Morgan's degree of ROP. He was simply not an appropriate candidate. There are 3 problems with performing LASIK on eyes with ROP. The first is that the retina is already compromised by the primary disease and the increased pressure in the eye (often 3 to 5 times normal) can by itself damage a normal retina and this risk would be increased in an already compromised retina where the macula has been stretched or dragged temporally. Although exams by retinal specialists has failed to document obvious retinal damage, one cannot rale out hypoxic or pressure induced damage to the macular area during the cutting of the flap which would account for his decreased vision. He does now have abnormal electroretinograms as documented on April 8, 2002 and February 20, 2000, which indicate abnormal rod and cone function. This is not surprising in a patient with ROP but of course we do not have pre LASIK studies to determine if these abnormalities were increased after his LASIK. If a preoperative ERG was in fact abnormal, that would be an additional reason combined with the clinical appearance and best-corrected vision of 20/50 to exclude him from the study. If a preoperative ERG was normal, we would then have objective evidence that the LASIK surgery caused it to become abnormal.The second problem with a patient with ROP is that optic nerve and the nerve fiber layer of the retina are more susceptible to damage from the increased intraocular pressure from the application of the suction ring. Dominic does have abnormal optic nerves, which appear to by hypoplastic in the photos from 4/6/98 at the Nevyas Eye Center and by my exam. The report by Dr. DeJuan at Hopkins also describes "anomalous" optic discs. These small hypoplastic optic nerves are more prone to damage during LASIK. Cases of optic nerve damage have been reported following LASIK have been reported even in normal eyes. The LASIK procedure can cause subclinical ischemic damage to the optic nerve or nerve fiber layer of the retina but not enough to result in obvious optic nerve atrophy or pupil defects. The visual field testing (Goldman) performed at Wilmer shows paracentral scotomas in both eyes and the interpretation by Dr. Zack on 12/6/99 describes, "specific loss including a number of common disorders, most commonly glaucoma." Clearly Dominic does not have glaucoma so these field defects point to damage from the increased intraocular pressure during LASIK in an abnormal optic nerve. The GDX study from March 27, 2000 also shows abnormal nerve fiber layers in both eyes which would usually indicate glaucoma but here is simply an indication of his ROP. If feasible I recommend Patterned Visual Evoked Potential testing to evaluate his optic nerve function. The third problem with an ROP patient involves the controversy of whether to center the excimer ablation over the pupil, as recommended by Guyton Ellis and Hunter, or over the visual axis, as suggested by Wachler and Buzzard. Although this argument is often moot in most normal eyes, the dragged macula in ROP and the significant positive angle Kappa make this a more significant decision in an ROP patient. Indeed, the inability of Nevyas to be certain where to properly center the excimer ablation in an ROP patient is another reason why LASIK was inappropriate. The topography following the LASIK appears to be well centered over the pupil. Because Mr. Morgan visual axis or "line of sight" is not looking through the center of the pupil, this may be partially responsible for his visual aberrations and decreased vision. It does not appear that this issue was ever discussed with Mr. Morgan as a potential problem with doing surgery on him as opposed to a truly "good candidate. The Nevyas note of 4/27/98 mentions the "patient was looking nasal to fixation target intraop" and that there was "temp decentration OS." It is possible that Mr. Morgan's line of sight to his temporally pulled macula passes through a peripheral portion of his ablation rather than the central portion and that may explain some of his decreased vision and night symptoms of glare and ghost images. Under these circumstances it may have been more appropriate to center his ablation over the line of sight rather than the pupillary center. This mismatch between the center
of the ablation and the temporally displaced macula as a possible
explanation for Mr. Morgan's difficulties is also mentioned in the
letter from Dr. DeJuan and the letter from Dr. Paul Maurius Bear dated
7/21/99. |
|
| 2 | Violation of FDA and Code of Federal
Regulations on promotion and other practices. These regulations state
that the investigator shall not: "(a) Promote or test market an
investigational device until the FDA has approved the device for
commercial distribution and (d) Represent that an investigational device
is safe or effective for the purposes for which it is being
investigated."
Mr. Morgan states and it is confirmed on his patient history dated 3/10/98 that he came to the Nevyas Eye Associates because he heard a radio commercial on station KYW. I have reviewed the script of radio advertisements, the Nevyas web pages, and a promotional Videotape of a program that was shown on cable television and may have been distributed to patients. I have been told that all of these materials were used during the FDA investigation of the Nevyas Laser. None of these materials included the FDA required warning that the device is limited to investigational use only. The ads also represent that the procedure is safe, and in fact the TV ad shows a simulated blurred 20/200 vision quickly dissolving into a sharp 20/20 vision. There are numerous other representations that the procedure is safe and effective. If patients were responding to these advertisements and then were entered into the FDA study, that would represent a serious deviation from the standard of care and one that I am sure the FDA would be interested in these practices. It would also appear that the poor
results obtained by Mr. Morgan with the significant decrease in his best
corrected spectacle visual acuity of more than 10 letters were not
properly reported to the FDA and that more patients were recruited for
the study than were authorized by the FDA. |
|
| 3 | Performing surgery on the right eye when the
left eye sustained a loss of best-corrected visual acuity from 20/40 -2
to 20/70. On 4/27/02 the clinical notes state that the patient
"feels vision is weaker since Fri. and night time is a
problem." The refraction was -0.25 -0.75 x 80 = 20/70 (the target
for this eye was mono vision for the left eye of about -2). Thus the
patient had a significant over response to the laser, had complaints
about the quality of his vision and his night vision, and had lost at
least 2 lines of best-corrected visual acuity.
Despite these problems,
Dr. Nevyas impression was that he was "doing well" and
recommended and performed LASIK surgery on the dominant right eye on
4/30/98. The imbalance between the two eyes that the patient experienced
should have been corrected with a contact lens or glasses in the right
eye while the situation in the left eye was evaluated. The left eye
eventually regressed to about -1.25 so it may actually have been
possible for him to continue simply wearing glasses and a contact lens
may not have been necessary. This is especially true since the patient
had a previous history of strabismus surgery and he may not have had
true stereopsis so the anisometropia may have been easily tolerated and
surgery on the right eye could have been deferred indefinitely. |
|
| 4 | Comment: Mr. Morgan has been examined by
several highly qualified experts since his LASIK surgery in an attempt
to explain the decrease in his best-corrected visual acuity. The
possible mechanisms include retinal damage, optic nerve damage, a
combination of both; optical problems related to positive angle kappa
and an ablation centered over the pupil, and early cataract changes.
Based on my examination and records review, I attribute his loss of
vision and visual complaints to a combination of all except the
cataract. I do not feel the minimal lens opacity is sufficient to
explain his loss of vision. This would not explain why his vision became
worse immediately after the surgery in both eyes. Dr. Guyton suggested
the minimal cataracts as a possible explanation in June of 2000 and
suggested that if the cataracts were at fault we would expect to see
progression in the lens changes and further decrease in his visual
acuity. It is almost 2 years since that exam and today, his visual
acuity was better than the 20/125 recorded by Dr. Guyton and the lens
changes are still minimal so this goes against the thought that the
cataracts are at fault.
Within a reasonable degree of medical certainty, it is my opinion that LASIK caused all the problems discussed above and in my report to occur. LASIK surgery usually does not provide a patient with vision better than his or her best corrected vision with spectacles or contact lenses. Although common, this surgery is not without risk, and the practice is not to perform surgery on patients who already have compromised vision secondary to severe eye conditions. By avoiding patients whose vision is already compromised to this degree we leave the patient a "safety net" in case the procedure leaves them with less than desirable results. Certainly Mr. Morgan's ROP places him within a category of patients who needed that net, and Dr. Nevyas-Wallace took that net away. |
Yours truly,
James J. Salz, M. D.
Dr. Herbert Nevyas and Dr. Anita Nevyas filed a lawsuit against Dominic Morgan for operating a web site at LasikSucks4u.com, and obtained an injunction to prevent Dominic from publishing information about this case.
Posted by: Admin at October 31, 2005 11:37 AMIT IS ORDERED THAT, ON COUNT III OF THE COMPLAINT, THE AGREEMENT WHICH WAS ENTERED INTO BY DEFT, MORGAN AND PLTFS ON OR ABOUT THE PERIOD 7/30/03 THROUGH 8/4/03 IS ENFORCED AND DEFT, MORGAN WILL NOT MENTION DR NEVYAS OR HIS PRACTICE OR ANYTHING CONCERNING PAST ITEMS FROM DR NEVYAS OR HIS PRACTICE IN DEFT'S WEBSITE. DEFT, MORGAN IS ORDERED TO OPERATE HIS WEBSITE AND ANY WEBSITE IN ACCORDANCE WITH THE 8/4/03 AGREEMENT. THE DEFAMATION ACTION BY DR NEVYAS AGAINST MR MORGAN IS DISMISSED AS AGREED TO IN THE 7/30/03 THROUGH 8/4/03 AGREEMENT. BY THE COURT ...MAIER,J 9/29/05
http://fjdweb2.phila.gov/fjd/zk_fjd_public_qry_03.zp_dktrpt_frames?case_id=031100946