Davis v. Defendant Ophthalmologist

  • First District Appellate Court10/08/2010
    Client: Defendant Ophthalmologist
    Outcome: Affirmed Verdict in Favor of Client Medical Corporation and an Ophthalmologist


In this informed consent case, DBMS attorneys successfully defendant their clients against allegations that an ophthalmologist and his staff failed to determine that the plaintiff, a candidate for LASIK surgery, had unusually large pupils in dim light and, according to the standard of care prevailing at the time of the treatment, should have received warning of an enhanced risk of post-surgery nighttime vision problems. The plaintiff contended that, at several office visits prior to two LASIK procedures in l998 and l999, the physician and his staff did not measure the plaintiff's pupils in conditions dark enough to disclose the plaintiff's allegedly abnormally large pupils. Plaintiff acknowledged that, prior to both surgeries, she received, read, understood and signed written informed consent documents detailing the risk of nighttime vision problems as well as significantly more serious problems that could result from LASIK surgery. The plaintiff contended, however, that she was told she was a perfect candidate for LASIK, and that she would not have proceeded with the procedures had she known of any enhanced risk.

At trial in the Circuit Court of Cook County, the defendants presented evidence establishing that plaintiff's pupils were repeatedly and correctly measured before the surgeries, and that, given her normal pupil size, no enhanced risk existed. The defendant ophthalmologist denied that he had told plaintiff that she was a perfect candidate for LASIK or that she could disregard the risks detailed in the consent forms. The defendants also refuted plaintiff's theory of causation with the testimony of the defendant ophthalmologist and of a retained expert witness, a world-renowned ophthalmologist who had conducted studies disproving plaintiff's theory of causation. In addition, the defense experts linked plaintiff's larger pupil size in the years after the surgeries to medications she was taking. The jury returned a verdict for the defendants.

On appeal, the parties battled over the propriety of the trial court's evidentiary rulings with respect to the admission of expert testimony, including the qualification of the defense witnesses to testify that various medications caused plaintiff to develop large pupils, the factual foundation for that testimony and the presentation of literature that post-dated the surgeries to refute plaintiff's causation theory. The appellate court rejected all of plaintiff's arguments. Ruling that the plaintiff had the burden of proving that the allegedly undisclosed risk had materialized, the panel found that the trial court correctly allowed the defense expert witness to discuss post-event literature, because it rebutted plaintiff's causation theory. The court noted that the jury may have resolved the case simply by concluding that the defendants had correctly measured plaintiff's pupils. In light of the general verdict and absence of special interrogatories, plaintiff was foreclosed from attributing the verdict any of the alleged errors pertaining to the admission of expert testimony.