Cataract surgery is supposed to make you see better.
Unfortunately, when a doctor recommends having surgery when you don’t need it, the outcome can be life-altering.
When someone has a cataract, it means that the lens has become clouded. This can impair their vision. There are two options to treat cataracts. You can do nothing and wait for it to get worse, which may be a viable option for patients who have a mild cataract. The other option is to have surgery. Cataract surgery involves removing the cloudy lens and putting in an artificial lens, also known as an intra-occular lens.
I had the pleasure of representing a woman who decided to have cataract surgery because she was told that she had a cataract.
Her vision was described as “near perfect” and that if she had the cataract surgery her slightly blurry vision would improve. She had had LASIK eye surgery (PRK surgery) 10 years earlier and had no problems or complications with her eyes for 10 years.
After the surgery was performed, she came back the next day for her follow-up visit and was unable to see. Upset and distraught, her doctor told her to give it time and take steroid drops to try and reduce the swelling. She returned again two more times, still unable to see. Her eye doctor began to question whether the calculations he made for the strength of the lens that he inserted were accurate. The doctor was defiant. He claimed that every calculation he made was correct and he double and triple checked. He used the most sophisticated devices and equipment to reach the appropriate calculation, yet for some "unexplained reason" this patient could not see.
After less than two weeks, he decided that he was going to remove the original lens that he put in and switch it out with a different strength lens hoping that that would allow the patient to see clearly.
The patient was desperate to see clearly again and agreed to have a second surgery, known as an intra-ocular lens exchange.
The second surgery was complicated. The eye doctor had difficulty removing the first lens and had great difficulty putting in the second lens. The day after the second surgery, when the patient returned for her follow-up visit, she still could not see. Her entire eye was bloodshot and the center of her eye looked pale and gray, almost like a dead fish. The patient was inconsolable. Again, she was told to give it time to heal and to use steroid drops to minimize swelling around her cornea.
She returned to the ophthalmologist's office multiple times without any improvement.
Months later, with no change in her condition and still unable to see clearly, she lost all faith in her doctor and decided to seek out experts at New York Eye & Ear Hospital in Manhattan. Her doctors there confirmed that she had corneal damage that would not improve. She continued to treat with these doctors month after month, year after year, hoping that there would be some miracle or some new procedure that would allow her to get her eyesight back.
As of today, she has permanent damage to her cornea and has been told that she needs a corneal transplant. However, the risk of undergoing a transplant at her age outweigh the benefits she might receive. In addition, as with any type of transplant there is a risk of rejection of the cornea. It is not a simple procedure.
It was our claim that the eye doctor never should have recommended or performed the initial cataract surgery because this patient had near-perfect vision.
We argued that she was not an ideal candidate for cataract surgery and the better option would have been to advise the patient to wait and do nothing. The defense argued that the patient demanded surgery and refused to wear eyeglasses. We also claimed that the doctor rushed to do the second surgery (the intra-occular lens exchange) much too early and did not give the patient enough time to heal.
Mediation or Trial?
Jury selection was scheduled to begin in Kings County Supreme Court in one week. Both sides decided to try mediation to see if we could settle the case immediately prior to trial. Mediation is where both sides present their case to an impartial judge known as a mediator. The mediator learns about the details of the case through presentations by the attorneys and then begins shuttle diplomacy between the two sides. Our mediator set aside three hours for this medical malpractice case.
The mediation was held on the 34th Floor of the New York Times building in Manhattan. The views from the conference rooms were stunning.
I gave a mini-opening using a powerful slideshow presentation that highlighted the key points I would be using at trial.
My adversary was a highly skilled, experienced trial lawyer. He made some very powerful counter-arguments that tried to poke holes in our theories of the case. He was convincing. Back and forth; point, counterpoint. This went on for almost an hour before beginning actual negotiations.
If we did not resolve this case during mediation, we would be guaranteed to begin jury selection in one week. I was actually looking forward to going to trial. I had a likable client and felt we had a stronger case than the defense did.
However, I am pleased to report that after extensive hard-fought negotiations, I was able to settle this case for $725,000.
Although my client will never get back good good vision in her eye, she is comforted knowing that she received full and fair compensation for the damages she sustained.
To learn whether all settlements should be placed 'on the record' in open court, I invite you to watch the video below...