In its unpublished opinion dated September 30, 2019, the Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) affirmed a New Jersey medical malpractice jury’s verdict in favor of a man who claimed he was not a proper candidate for Lasik eye surgery due to the large size of his pupils and that the defendant optometrist who had measured his pupils had failed to obtain his informed consent for the procedure, resulting in night vision problems that he considers to be “devastating.”
The New Jersey medical malpractice lawsuit named as defendants the optometrist who had measured the plaintiff’s pupils before surgery, the surgeon who subsequently performed the lasik procedure on the plaintiff, and the lasik surgery facility where the surgery was performed. The plaintiff dismissed the surgeon and the lasik surgery facility as defendants shortly before trial, leaving the optometrist as the sole defendant.
The plaintiff alleged that he would not have signed the consent form and proceeded with the lasik surgery if the defendant optometrist had informed him that his large pupil size increased his risk of experiencing night vision complications. The New Jersey lasik malpractice jury returned a special verdict in the plaintiff’s favor in which it unanimously determined that the defendant optometrist negligently measured the plaintiff’s pupil size; the defendant optometrist and surgeon acted in concert in determining that the plaintiff was a good candidate for Lasik; the plaintiff did not receive informed consent to undergo the procedure and the undisclosed risk caused him harm; a reasonably prudent person would not have consented to the surgery had they been informed of the risk; and, the plaintiff’s large pupil size proximately caused his injury. The jury awarded the plaintiff $3,500 in medical expenses and $480,000 in non-economic losses, for a total award of $483,500. The defendant optometrist appealed.
New Jersey Appellate Court Opinion
The New Jersey Appellate Court stated that a referring physician has no duty to obtain informed consent from the patient and that the duty of a referring physician, who does not act “in concert” or in “an agency relationship” with the operating physician, is to not act negligently in making the referral. But when physicians have an agency relationship or act in concert with respect to a patient, both physicians have a duty to obtain the patient’s informed consent to proceed with treatment.
The New Jersey Appellate Court stated that parties are acting in concert when they act in accordance with an agreement to cooperate in a particular line of conduct or to accomplish a particular result. In the present case, “the record firmly supports the jury’s finding that [the defendant optometrist and the surgeon] acted in concert toward a common goal of determining whether plaintiff was a good candidate for lasik surgery.” The New Jersey Appellate Court further stated, “the nature of the risk involved in an optometrist’s failure to inform a patient of his or her large pupils is that a patient, like plaintiff here, will unwittingly expose him or herself to a greater chance of suffering long-term vision problems.”
The New Jersey Appellate Court affirmed the jury’s verdict.
Source Decotiis v. Stein, Docket No. A-3790-17T4.
If you or a loved one have suffered harm as a result of Lasik surgery in New Jersey or in another U.S. state that may be due to Lasik malpractice, you should promptly seek the advice of a medical malpractice attorney in New Jersey or in your U.S. state who may investigate your Lasik malpractice claim for you and represent you in a Lasik surgery malpractice case, if appropriate.
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