Do You Agree That $3,000,000.00 is Not An Excessive Jury Award for Pain and Suffering for Serious Impairment But Not Loss of Vision Following LASIK Eye Surgery?

Devadas v. Niksarli, Index #: 107637/07, is an action for medical malpractice and lack of informed consent with respect to LASIK eye surgery. It was alleged that the defendant departed from the accepted standard of care for refractive surgeons inasmuch as the eye surgery was contraindicated in that at the time of the surgery the plaintiff suffered from forme fruste keratoconus, an early stage of keratoconus.

Keratoconus is the non-inflammatory thinning and steepening of the cornea. The presence of forme fruste keratoconus weakens the corneal stroma and can lead to iatrogenic ectasia. (the word iatrogenic roughly translated means the doctor did it.) Ectasia, a bulging of the cornea, is also called iatrogenic keratoconus or secondary keratoconus because it is basically a surgically induced version of the naturally occurring disease keratoconus. Ectasia is a very serious long-term complication of LASIK.

The plaintiff in Devadas asserted that his quality of vision has been significantly impaired and diminished by halos, blurred vision, double vision, glare and starbursts. A jury trial in Supreme Court, New York County resulted in a verdict in favor of the plaintiff on both his medical malpractice and lack of informed consent claims, awarding him damages of $100,000 for his past pain and suffering; $3,000,000 for his future pain and suffering; $60,000 for his past loss of earnings; $20,000 per year, for 37 years, with a growth rate of 5.5 percent annually, for his future loss of earnings; $20,000 for his wifes past loss of her husband’s services; and $100,000 for her future loss of her husband’s services.

The defendants brought on a motion seeking various relief, including a reduction of the damages award on the ground that it was excessive, which motion was denied in a decision dated July 9, 2010 (7/30/2010 N.Y.L.J. 26, (col. 5)) by Justice Doris Ling-Cohan. With respect to the claimed excessiveness of the award of $100,000 for past pain and suffering and $3,000,000 for his future pain and suffering, the court noted that the plaintiff testified at length concerning how his visual impairment negatively affects his ability to carry out household and professional responsibilities, how it causes him severe discomfort, and how he has had trouble coping with post-LASIK keratoconus.

He complained of double vision, blurriness, starbursts, glare, poor nighttime vision, photosensitivity, and chronic dry eyes. He also testified that his eyes are constantly irritated; he cannot focus his eyes on anything for very long; he often gets headaches due to his visual impairment; and he has trouble wearing his contact lenses. He further testified how his vision problems have affected his confidence, his family relationships, his family duties, and his professional duties.

His wife also testified as to her husband’s visual impairments and the additional duties she has had to take on because of them. The Court aptly pointed out that the $3,000,000 awarded for future pain and suffering was awarded by the jury to compensate plaintiff over a time period of 45 years, which on a yearly basis equates to approximately $66,000. The decision also discusses how a case cited by plaintiffs, Schiffer v. Speaker, 2005 WL 2398129 [New York County 2005], supports the amount awarded in this action. In Schiffer, the plaintiff underwent LASIK surgery in both eyes to correct a retinal irregularity. After the surgery, the plaintiff began to experience blurred vision, especially in his left eye, and it was determined that he was suffering ectasia in his left eye, which required replacement of his left cornea.

Plaintiff was awarded a total of $7.25 million: $750,000 for past pain and suffering; $2,000,000 over 10 years for future pain and suffering; $500,00 for past lost earnings; and $4,000,000 over 7 years for future lost earnings. Statute of limitations problems may arise because ectasia is typically diagnosed some time in the first two years after surgery but has been known to first be diagnosed later than that. The statute of limitations in New York is 2 years from the date of the malpractice, not the date of the discovery of the malpractice. There is a potential for litigation as to when the plaintiff should have become aware of injuries allegedly resultant from the LASIK surgery. Thus a lawyer should be contacted as soon as possible.

The lawyers at Levine & Slavit have decades of experience handling personal injury claims including those involving medical malpractice. For 50 years spanning 3 generations, we have obtained results for satisfied clients. We have offices in Manhattan and Long Island, handling cases in New York City, the Bronx, Brooklyn, Queens and surrounding areas. To learn more, watch our videos.

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