Arizona Appellate Court Affirms Summary Judgment For Defendants In LASIK Surgery Malpractice Case

The Underlying Facts

Appellate Court Affirms Summary Judgment For Defendants In LASIK Surgery Case: In September 2017, Jay L. Schwartz, D.O. (“Schwartz”) performed bilateral LASIK surgery on Melanie Phillips (“Phillips”) and implanted in her right eye a device known as a Raindrop Near Vision Inlay (“Raindrop Inlay”). The Raindrop Inlay is a curved disc implanted in the cornea of one eye with the intent to improve near vision. Before surgery, Phillips signed an informed consent document warning that use of the Raindrop Inlay can cause permanent glare affecting night driving. Phillips later testified she could not read the document when she signed it because of her vision problems. In March 2018, Schwartz removed Phillips’ Raindrop Inlay because she was experiencing postoperative decreased visual acuity because of corneal haze (cloudiness or opacity).

Beginning in September 2018, Phillips sought treatment from other health care providers to improve her vision. In October 2018, the United States Food and Drug Administration recalled the Raindrop Inlay because of an increased risk of corneal haze, which can cause glare.

Phillips sued Schwartz for professional negligence, lack of informed consent, and battery. Phillips testified at her deposition that if she had been told she could have permanent glare, she would have declined the Raindrop Inlay procedure.

Plaintiff’s expert, Dr. Todd Lefkowitz (“Lefkowitz”), conceded that he found evidence of some opacity in both eyes and that, if the LASIK procedure caused some of the corneal opacity, that is not evidence of negligence by Schwartz. He testified that because the haze was bilateral, that reveals the haze was more a result of the LASIK surgery than the Raindrop Inlay. Lefkowitz had no way to quantify the amount of opacity caused by the Raindrop Inlay versus the
LASIK procedure and stated that the degree of paracentral opacity was fairly minimal. He could not say to a reasonable degree of medical probability that the Raindrop Inlay permanently damaged Phillips’ right eye. And Lefkowitz could not state whether Phillips’ outcome would have been any different had Schwartz removed the Raindrop Inlay earlier or if he had never implanted the Raindrop Inlay.

In its June 27, 2023 Memorandum Decision, the Arizona Court of Appeals Division One (“Arizona Appellate Court”) affirmed summary judgment entered for the defendants, stating: “Here, the record shows that Phillips suffered from equal bilateral glare in 2020, yet the Raindrop Inlay was only implanted in her right eye. The glare measurement in both eyes improved in 2021, with minimal difference between the eyes. Even assuming as true Lefkowitz’s corrected opinion, Lefkowitz could not quantify the amount of opacity caused by the Raindrop Inlay versus the LASIK procedure and agreed that the degree of paracentral opacity was fairly minimal … we affirm the superior court’s ruling.”

Source Phillips v. Schwartz, No. 1 CA-CV 22-0487.

If you or a loved one have suffered a bad outcome from LASIK surgery in Arizona or in another U.S. state that may be due to LASIK malpractice, you should promptly seek the advice of an Arizona medical malpractice attorney or a medical malpractice attorney in your U.S. state who may investigate your LASIK malpractice claim for you and represent you or your loved one in a LASIK surgery malpractice case, if appropriate.

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