Defense Verdict in New York County

On January 25, 2007, Robert Gibson, obtained a defense verdict in New York County Supreme Court on behalf of an ophthalmologist and a major laser eye surgery center.

The plaintiff claimed that the ophthalmologist and facility committed malpractice in performing bilateral LASEK vision correction surgery and a subsequent enhancement surgery as the plaintiff was not a proper candidate for the surgeries. Plaintiff also alleged that informed consent was not obtained for either surgery.

Prior to trial, a motion for summary judgment was granted, in part, dismissing all claims relating to the initial surgery. Leading up to the trial, the defense filed a motion to preclude plaintiff from pursuing her claim for lost earnings at trial because plaintiff did not provide any of the court-ordered discovery pertaining to the claim. Plaintiff eventually agreed to withdraw the lost earnings claim.

At trial, the plaintiff’s expert testified that the plaintiff was not a proper candidate for the enhancement surgery due to her fluctuating visual acuity and her over response to the initial procedure. The expert also testified that a separate informed consent form should have been signed by the plaintiff for the enhancement procedure, and that a separate consent should have been obtained for the use of Mitomycin C, a drug that was used in conjunction with the enhancement procedure. The plaintiff testified that she was unaware that her vision could get worse as a result of the enhancement procedure and did not know that Mitomycin C was going to be used. She further testified that the defendant ophthalmologist told her that the surgery was merely a “touch up” that would improve her vision problems. With respect to damages, the plaintiff testified that as a result of the malpractice, her quality of vision deteriorated, she could not drive at night and had difficulty driving during the day, that she could not engage in and enjoy everyday activities, and that she had no social life.

In response to plaintiff’s claims pertaining to liability, the defense expert testified that the plaintiff was an appropriate candidate for the enhancement procedure because prior to the surgery, she was correctable to her best corrected pre-operative vision, an indication that she was not suffering from visual problems that could not be corrected with an enhancement procedure. The defense was also able to establish that, although there was not a separate consent form for the enhancement procedure, the plaintiff was aware of the risks associated with the procedure because they were explained to her prior to the initial procedure and she had signed a consent for that procedure.

The defense successfully belied the plaintiff’s testimony regarding damages by introducing into evidence photographs that had been posted on the Internet by the plaintiff that depicted her driving in Louisiana and engaging in social activities. Mr. Gibson also elicited testimony that the plaintiff drove over an hour to and from court on the first day of the trial and that part of her return trip was after dark.

At the close of the five day trial, the jury returned a unanimous defense verdict.