Virginia Lawyers Weekly

An eye surgeon has been ordered to pay $1 million, including $350,000 in punitive damages, to a woman who was left nearly blind after he performed laser surgery on the wrong eye.

It is apparently the first time in Virginia history that a medical malpractice plaintiff harmed by botched surgery has been awarded punitive damages.

Suffering from a buildup of blood in her right eye, the woman was scheduled to have a procedure known as pan-retinal photocoagulation laser surgery. An “X” marked the woman’s right eye before the procedure. In addition, the woman signed a consent form approving the procedure on her right eye, and a nurse pointed out the right eye to the doctor as he prepared for surgery.

However, said Northern Virginia lawyer Cary S. Greenberg, “Instead of doing the surgery in her right eye, he did the left eye instead.”

The delay in performing the procedure cost the woman her vision in the right eye. In addition, the procedure on her left eye robbed her of all but limited vision in that eye.

The case is Bourne v. Rivers et al. Click here for the Verdict & Settlement report.

Right eye, wrong result

The plaintiff, 47, developed what she thought was a “hair” impeding vision in her right eye, explained Greenberg. An opthalmalogist said she appeared to have blood in the vitreous humor, the clear, gel-like area between the lens and the retina. He referred the plaintiff to the defendant eye surgeon.

On May 23, 2000, the plaintiff arrived at the hospital to have the vitreous humor removed from her right eye. In addition, she was set to have pan-retinal photocoagulation laser surgery to treat diabetic retinopathy in the same eye.

The team preparing the plaintiff for surgery marked an “X” above the plaintiff’s right eye. “The nurse declares, ‘Right eye,’” Greenberg said.

However, there was a mixup in the plaintiff’s chart, which contained a note calling for the same procedure on the left eye of a different patient, a 76-year-old woman.

Seeing the note, the defendant changed the plaintiff’s consent form, which provided her consent to have the procedure performed on the right eye.

“He scratched out the word ‘right’ and penned in the word ‘left,’” Greenberg said.

Joined by attorney Richard F. Dzubin, Greenberg emphasized at trial that even after the initial errors, the defendant had ample opportunity to catch the mistake.

“Had he read the note [in the chart], he would have seen the wrong name,” he said, noting also the 29-year discrepancy in ages between the two patients.

In addition, Greenberg contended, a simple examination would have avoided the problem before it started.

“He would have seen she had a perfectly healthy left eye,” he said. “The left eye was clear.”

After beginning the procedure, Greenberg said the defendant woke the plaintiff to ascertain the eye on which he was to perform surgery. Under sedation, the plaintiff was unable to answer.

“He tried to awaken the unconscious patient to ask which eye to work on,” said Greenberg.

The defendant went ahead and performed the procedure on the left eye. Two weeks later, she had the surgery performed on the right eye.

“Her right eye was so bad that she went from 20/60 to 20/300 with no way to reverse it,” said Greenberg. “She is legally blind.”

In the left eye, he said the plaintiff has “deficits,” including the loss of peripheral vision, an inability to read and difficulty coping with bright light.

At trial, Alexandria Circuit Judge John E. Kloch rejected several attempts by the defense to strike the punitive damages claim. The defense, according to Greenberg, contended that the defendant was liable of nothing more than simple negligence.

“I highlighted the fact that there was a conscious disregard for her legal rights when he changed the consent form,” Greenberg said. “He should have read his own note and seen that it referred to a patient who was 30 years older than the one he had on the table.”

Washington, D.C., lawyer Alfred F. Belcuore, who represents the defendant, declined comment. According to Greenberg, however, the defendant has filed post-trial motions

“It’s a legally unique case,” said Greenberg. “Because of that, they may take it to the Supreme Court.”

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