Defense Verdict In Westchester
On June 13, 2013, Andrew M. Neubardt received a defense verdict in Westchester County Supreme Court on behalf of an ophthalmologist and a multi-specialty medical group.
The plaintiff claimed that the defendant ophthalmologist failed to provide appropriate informed consent and was negligent in performance of cataract surgery. The plaintiff alleged that he was not told of the increased risks of surgery due to his age, diabetes and the medications he had taken; he claimed he would not have undergone the elective surgery had he known that he was a higher risk patient. Intra-operatively, the natural lens prolapsed and dislocated into the vitreous. The plaintiff claimed that the surgeon tried to retrieve it from the posterior vitreous and thus caused a retinal tear and detachment; he had three subsequent surgeries to correct the condition. The plaintiff’s expert described the jagged, “giant” tear of the retina as a direct result of the defendant surgeon probing into the posterior vitreous for the dislocated lens; on cross examination she admitted that she based her opinion on the presence of an injury rather than on objective data from the medical records. The plaintiff also called the subsequent surgeon as a witness on their case. He described the three procedures needed to retrieve the lens and to correct the torn and dislocated retina; on cross exam he acknowledged that a torn or detached retina are inherent risks of all eye surgery and that the extent of the surgery for the complication was not affected by the size of the retinal tear.
The case was defended based on detailed descriptions for the jury of the extensive informed consent discussion and the techniques used in the cataract surgery. The surgeon described the extensive discussion he has with each patient considering cataract surgery; the doctor’s testimony on this issue took over seven pages of the trial transcript. He explained why the “risks” did not affect the potential rate of complication but only raised the potential of his need to perform alternative intra-operative techniques. The surgery itself was broken down for the jury, with an explanation of the surgical options at each stage of the procedure. The defendant called an expert on the standard of care. The defense expert testified that the precautions taken by the surgeon intra-operatively did not change the inherent risks of the surgery; more importantly, the expert testified that when one of those inherent risks was encountered, the defendant surgeon responded with techniques to protect the eye until it could be treated by a posterior segment surgeon. He also described the physics of why retinal tears are an inherent risk of all eye surgery.
In addition, the defendant challenged the damage claims asserted by the plaintiff as to the severity of the physical limitation caused by the subject surgery. The plaintiff testified that the lack of vision in his left eye was highly debilitating; however we established that the plaintiff’s life in retirement was active and that his inability to see through the affected eye was mainly due to his choice not to have a lens inserted due to the risk that that surgery would present.
After three and a half hours of deliberation, the jury returned a defense verdict on both counts; the verdict on negligent surgery was unanimous and there was one dissenting vote on informed consent.