Earlier this week, oral arguments were heard before the Supreme Court of the State of Nevada with regard to the defense verdict entered in a LASIK surgery malpractice claim. The main issues on appeal are the defense’s focus during trial on the plaintiff’s alleged “drug abuse” and whether the trial court was correct in allowing one of the plaintiff’s treating physician’s to testify on behalf of the defendant during trial despite the defense having allegedly tampered with the witness.
The Underlying Facts
On May 19, 2007, the plaintiff had an initial consultation with the defendant for Lasik corrective vision surgery. The plaintiff noted on the patient intake form that she always had dry eyes and had a history of vision loss due to a virus. Despite these contraindications for Lasik corrective eye surgery, the defendant performed Lasik surgery on both of the plaintiff’s eyes on the same day as the initial consultation.
The plaintiff immediately experienced severe pain, loss of vision, and other complications. Since the Lasik surgery, the plaintiff has had diffuse laminar keratitis, epithelial defects, and non-healing. She has been treated by many specialists. By the time of trial, the plaintiff had no expectation of any visual function in her right eye and only a possibility of slightly better than legally blind vision in her left eye; she also had constant pain and burning in both eyes.
One of the plaintiff’s experts in her Lasik malpractice case was one of her subsequent treating physicians. This expert testified during his deposition taken before trial that it was his impression that the plaintiff had been using anesthetic drops, which the plaintiff denied. The expert testified during his deposition that he suspected that the plaintiff took missing anesthetic drops from his clinic but he did not observe her stealing any anesthetic drops. The expert’s records documented that he advised the plaintiff to not use anesthetic drops, yet the records did not document that the plaintiff was using the drops. Nonetheless, the expert testified during his deposition that it was his impression that the plaintiff’s deteriorating condition could have been attributed to abuse of anesthetic drops.
During the defendant’s attorney’s opening statement to the jury, the attorney told the jury that “The plaintiff had stolen proparacaine. It’s a numbing drop” and that “She destroyed her eyes by drug abuse.”
During the defendant’s presentation at trial, he called the plaintiff’s treating physician (the expert referenced above) to testify on his behalf (the defendant had not designated the treating physician as his own expert). Unbeknownst to the plaintiff’s attorney, and without the plaintiff’s authority, the defendant’s attorney and his support staff had many hours of direct communications with the expert, the expert’s office staff, and the expert’s lawyer regarding the plaintiff and her medical malpractice claim.
The plaintiff’s expert testified at trial that he “speculated” that the plaintiff had used anesthetic drops contrary to his instructions (he testified it was “speculation” but that in his opinion if she had continued to follow his directions he could have returned her to her best corrective vision; he testified, “I feel confident enough that she was stealing drops from my clinic, and I know enough about Alcaine toxicity to know that all of her problems from whenever she had the Lasik, a year previously, could be related to her Alcaine abuse… And that’s speculation. I’m saying could be. I can’t prove that … but that’s my opinion;” “What I’m saying is that I’m trying to explain that I couldn’t prove that she was abusing Alcaine. But it was my impression that she was and that it was a contributing factor, but I had no way to prove that;” “So I have no way to prove that that’s what she was doing.”)
The jury returned a defense verdict and the plaintiff appealed, alleging that the plaintiff was deprived of a fair trial because the defense’s “drug abuse” affirmative defense constituted trial by ambush; the drug abuse defense was unsubstantiated as there was no evidence in the records or testimony that the plaintiff abused anesthetic eye drops, yet the defense was able to divert the jury’s attention from the real issue of the defendant’s malpractice using unfounded accusations against the plaintiff; the drug abuse affirmative defense came as a surprise because it was not disclosed by the defense during discovery and because the defense procured the testimony of the plaintiff’s treating physician through medically and legally unethical ex parte communications; and, that the trial court erred in allowing the plaintiff’s treating physician to testify for the defense and in determining that the physician was not required to testify to a reasonable degree of medical probability.
We hope to report on the Nevada Supreme Court’s decision in this case, when it is published.
If you have suffered injuries as a result of Lasik surgery, you should promptly seek the advice of a local medical malpractice attorney in your 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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