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Record LASIK malpractice award could encourage subsequent suits
Although the parties in the case settled for a smaller amount, the $7.25 million awarded to a LASIK patient should serve as a caution to refractive surgeons, attorney says.
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It would be a mistake for surgeons to dismiss a recent $7.25 million award in a LASIK malpractice suit in New York as an aberration, even if it is, Alan E. Reider, JD, said. Surgeons should review their insurance coverage and other factors in light of the record award, he said.
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Alan E. Reider |
Based on a jury’s decision this summer, New York Superior Court Judge Alice Schlesinger awarded $7.25 million to 32-year-old Mark Schiffer, a former investment banker. The award consisted of $4.5 million for lost income and $2.75 million for the pain and suffering Mr. Schiffer claimed he suffered following a LASIK procedure in 2000.
This was the biggest monetary award in a LASIK malpractice lawsuit to date, according to Mr. Reider, the Regulatory/Legislative Affairs Section Editor for Ocular Surgery News.
The parties in the case subsequently agreed to a $2.3 million settlement of all claims against the physician defendant and his practice, according to the attorney for the defense.
Although this settlement reduced the amount of money involved, the initial unprecedented monetary award will have an effect on future LASIK malpractice cases, Mr. Reider said in an interview with Ocular Surgery News.
“Any recovery of this size may encourage other lawsuits from disappointed patients and may promote plaintiffs’ lawyers to be more aggressive in bringing such cases,” Mr. Reider said. “It also might cause insurers to be more willing to settle cases which they might otherwise have challenged to avoid the possibility of a judgment such as this.”
The most significant impact may be on insurance coverage, Mr. Reider said.
“Most physicians do not have coverage at this level. So unless the physician has some type of umbrella coverage, the physician may have to pay millions out of his pocket, or at least the practice will be liable,” Mr. Reider said in an e-mail interview.
He added that surgeons should evaluate this case to see what lessons can be learned.
Adequate insurance coverage
Peter C. Kopff, JD, the defense attorney for Mark G. Speaker, MD, the surgeon who performed the LASIK procedure on Mr. Schiffer, said that insurance coverage was an issue in the settlement.
The original $7.25 million awarded by the jury exposed Dr. Speaker beyond his insurance coverage, Mr. Kopff said. Dr. Speaker and Mr. Schiffer agreed to the $2.3 million settlement of all claims against Dr. Speaker and his practice, Laser and Corneal Associates PC, on October 5, he said.
“It was a compromise,” Mr. Kopff said. “We felt we had strong issues on appeal, but there is no appeal that is 100%.”
Mr. Kopff told Ocular Surgery News that Dr. Speaker’s insurance covered only up to $2.3 million, and anything awarded over that amount would have to be bonded.
“Most people don’t have those kinds of assets. My client didn’t,” Mr. Kopff said. “We’re disappointed in the outcome, but that’s the compromise we made. This way, it goes to rest and my client doesn’t have to worry about the case anymore.”
The complaint
According to Mr. Schiffer, his post-LASIK vision, particularly in his left eye, was blurry, and this kept him from continuing a successful career on Wall Street. Although the original complaint was filed against TLC Laser Eye Center, the $7.25 million verdict was delivered only against the surgeon, Dr. Speaker.
Mr. Schiffer alleged in his complaint that Dr. Speaker and physicians associated with TLC Laser Eye Center failed to determine that he was not a candidate for LASIK due to existing keratoconus. His complaint also alleged that Dr. Speaker failed to discuss with Mr. Schiffer the risks and benefits of LASIK and alternatives to the LASIK procedure.
“I believe the verdict reflects the hazards of the model of comanaged care of patients espoused by TLC, which was one of the co-defendants in the lawsuit,” said Mr. Schiffer’s attorney, Todd J. Krouner, JD. “It reflects the hazards of delegating to individuals who are not trained as ophthalmologists the responsibility of preoperative screening of LASIK patients,” he said in an interview with Ocular Surgery News.
According to a copy of the court transcript, Dr. Speaker stated that he did not recall performing a slit-lamp examination on Mr. Schiffer or reviewing the color corneal topography from TLC in 2000.
Still not over
Although all claims against Dr. Speaker and his practice have been dismissed, the case may not be over for the plaintiff. “We continue to evaluate the merits of an appeal against the defendant TLC, in particular,” Mr. Krouner said.
TLC Laser Eye Center, which has multiple locations nationwide, was dismissed from the case several months ago, but the plaintiff reserves the right to file an appeal, according to Mr. Kopff.
Mr. Krouner said Dr. Speaker was “wearing two hats” as the surgeon and as an employee of TLC when his client was treated.
“We believe we have meritorious appellate issues concerning TLC’s involvement,” Mr. Krouner said, “both through Dr. Speaker as well as through its other employees who failed to fulfill their responsibilities in assisting the surgeon and proper screening of the patient.
Brian Andrew, JD, general counsel for TLC, said TLC maintains it does not employ Dr. Speaker.
“He is an independent contractor, a private practitioner,” Mr. Andrew said in an interview with Ocular Surgery News. “As far as medical malpractice, only a physician practices medicine. ... Our contention is we didn’t commit medical malpractice, nor should we be held liable for the actions of people we contract with.”
TLC’s defense counsel in the case, Ralph Catalano, JD, noted in a telephone call that “the jury exonerated my client, TLC Laser Eye Centers, of any liability or fault in this case.”
For Your Information:
- Alan E. Reider, JD, can be reached at Arent Fox PLLC, 1050 Connecticut Ave., N.W., Washington, D.C., 20036-5339; 202-857-6462; fax: 202-857-6395; e-mail: reider.alan@arentfox.com.
- Peter C. Kopff, JD, can be reached at 440 9th Ave., New York, NY 10001-1620; 212-244-2999; fax: 212-643-0862; Web site: www.kndny.com.
- Todd J. Krouner, JD, can be reached at 93 North Greeley Ave., Suite 100, Chappaqua, NY 10514; 914-238-5800; e-mail: tkrouner@krounerlaw.com.
- Brian Andrew, JD, can be reached at TLC Vision Corp., 540 Maryville Center Drive, Suite 200, St. Louis, MO 63141; 314-523-8205; fax: 341-434-7251; e-mail: brian.andrew@tlcvision.com.
- Ralph Catalano, JD, can be reached at 681-786-5447.
- Daniele Cruz is an OSN Staff Writer who covers all aspects of ophthalmology.