By Genevieve Haas
Lawyers Weekly USA
© 2001, Lawyers Weekly
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 Weekly 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 Weekly 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
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
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
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
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.
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
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
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 Weekly 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
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."
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
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
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
The case: Oliver v. Abell; Fayette County
Circuit Court; Judge Rebecca Overstreet.
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