Monday, July 25, 2011

Tiger Woods eye doctor successfully sued for lack of informed consent

In Pittsburgh, PA and across the country, elective surgeries have become a hotbed for lack of informed consent lawsuits.  This makes sense for two reasons: 1. If the patient believes they require the surgery they may be less likely to ask about risks and 2. because, by nature, it is a non-emergency procedure the defendant has one less defense to make at trial.

In 2008, Allegheny County Pennsylvania hosted the trial of Cantalupo v. TLC The Laser Center.  This was a medical malpractice action which alleged lack of informed consent, as well as negligence. The plaintiff alleged that the defendant ophthalmologist was negligent in performing LASIK surgery and failed to adequately screen to discover that he had unusually thin corneas. The plaintiff claimed that he was not informed that his condition posed an increased risk of injury from the procedure, specifically the development of corneal ectasia (progressive steepening and bulging of the cornea that can significantly affect vision).

The defendant maintained that the plaintiff was fully informed of the risks and alternatives of LASIK surgery and elected to proceed with the surgery.

The plaintiff, Cantalupo, was a 27-year-old male at the time he underwent a LASIK procedure to both eyes performed by the defendant ophthalmologist on January 9, 2001, in Pittsburgh. Cantalupo testified that he was never told nor made aware of the risks involved in the surgery, in particular the risk due to his thin corneas. The plaintiff's expert ophthalmologist testified that at the time of the surgery, the plaintiff exhibited abnormally thin corneas. The plaintiff's expert testified that thin corneas place patients at increased risk for development of ectasia. The plaintiff's expert testified that ectasia is a very serious long-term complication of LASIK which may cause progressive myopia and effects similar to irregular astigmatism, such as ghosting and other distortions with fluctuating vision. The plaintiff contended that his condition of thin corneas made him an inappropriate candidate for the LASIK procedure and that the defendant was negligent in proceeding with the surgery. The plaintiff was diagnosed with ectasia following the surgery and argued that he should have been informed by the defendant that he had thin corneas, which placed him at a higher risk of developing the complication.

The plaintiff's physician testified that ectasia is a non-curable condition, and that the plaintiff's only option may be a corneal transplant. The plaintiff's complaints included very poor vision in one eye, inability to drive at night and difficulty reading numbers on a computer.

The defendants contended that the plaintiff was fully informed of the risk of the LASIK surgery and signed a standard form that which is given to all patients. The defendant's expert testified that ectasia is a complication of LASIK which occurs in a statically small number of patients and did not result from any action or inaction on the part of the defendant. The defendant's expert testified that there is no definitive answer as to how thick a cornea must be in order to successfully undergo LASIK surgery. The defense contended that the plaintiff's corneas were not so abnormally thin as to place him in the high risk category.

The jury found that the defendant performed the LASIK surgery without the plaintiff's informed consent. The jury found for the defendant on the negligence count. The plaintiff was awarded $ 875,000 in damages.

This medical malpractice action highlighted the performance of growingly popular LASIK surgery and one of its known complications called ectasia. FDA websites estimate the rate of ectasia after LASIK surgery to be about one in 2,000, but cautions that this number could be underestimated due to underreporting and lack of long-term follow-up.

It was the plaintiff's position that a person must be informed of the particular circumstances and conditions that they have before surgery, in this case abnormally thin corneas, so that they can fully understand the risks of the procedure. The plaintiff's medical evidence showed that thin corneas clearly increase risk of the development of ectasia. Motions in limine precluded any defense references to the fact the defendant successfully treated the well known golf professional, Tiger Woods, or any other character evidence not disclosed on the defendant's curriculum vitae or in his deposition testimony. The defendant was also precluded from making references to the defendant's high success rate in other dissimilar cases.

The plaintiff sought to portray the defendant as a very busy, specialized and successful surgeon who did not give the plaintiff the special attention he needed. Evidence showed that the defendant flew from Maryland to Pittsburgh to operate on 35 patients (70 eyes) in a single day, earned approximately $ 35,000 per day and then flew back home. The plaintiff's $ 875,000 damage award was increased by delay damages, as well as an undisclosed sum from two settling defendants, boosting the total recovery to more than $ 1 million. Share this post :
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