Wallace v. Mcglothan
| Decision Date | 26 May 2010 |
| Docket Number | No. 07-4059.,07-4059. |
| Parties | Tracey WALLACE and Eric Wallace, Plaintiffs-Appellees,v.Jonathan S. McGLOTHAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
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Robert F. Hunt (argued), Hunt, Hassler & Lorenz, Terre Haute, IN, for Plaintiff-Appellee.
Michael E. O'Neill (argued), Hinshaw & Culbertson, Schererville, IN, for Defendant-Appellant.
Before EASTERBROOK, Chief Judge, and KANNE and TINDER, Circuit Judges.
Dr. Jonathan S. McGlothan attempted to correct Tracey Wallace's vision problems through eye surgery, but the procedure ended up causing more harm than good. Tracey and Eric Wallace brought a diversity suit against Dr. McGlothan for medical malpractice under Indiana law. After a trial on causation and damages, the jury returned a verdict for the Wallaces and awarded nearly $700,000 in damages. On appeal, Dr. McGlothan challenges the sufficiency of the evidence. We affirm.
Tracey decided to undergo surgery so that she would no longer need to wear glasses or contact lenses, and she hired Dr. McGlothan to perform the procedure. On the patient history form that Tracey completed for Dr. McGlothan, she stated that she had trouble reading fine print and driving at night and in bright sunshine. On April 25, 2002, Dr. McGlothan performed LASIK 1 surgery on Tracey's eyes to improve her vision. LASIK can correct a person's vision by changing the shape of the cornea. During a LASIK procedure, a physician uses a mechanical blade to cut a flap in the patient's cornea (the person's eye is usually anesthetized). The physician then folds the flap back and uses a computer-guided laser to vaporize parts of the stroma, the central part of the cornea. The flap is then laid back down, and after the cornea heals, the patient should have better vision.
Dr. McGlothan started with Tracey's right eye. After he cut the flap, he noticed a “buttonhole flap,” a LASIK complication that occurs when the mechanical blade cuts the corneal flap too thin in one or more areas.2 Dr. McGlothan informed Tracey of the problem, checked his equipment, and replaced the blade. He then proceeded to the left eye. After he made the cut, though, he again noticed that a buttonhole flap complication had developed. He then stopped the surgery, replaced the flaps, put bandage contact lenses in Tracey's eyes, and sent her home.
Tracey returned to Dr. McGlothan's office for follow-up on April 26 and 29. During that time, Tracey stayed at home with the lights dimmed, shades drawn, and, occasionally, sunglasses on. Her eyes were very sensitive to light, and she described that they felt like they had sand thrown in them.
On April 29, after her visit with Dr. McGlothan, Tracey went to see another physician, Dr. Donald Conner, O.D., an optometrist. Before meeting Dr. Conner, Tracey filled out a patient history form stating that she had been “bothered by glare or reflection, particularly when driving at night.” Dr. Conner examined Tracey and saw “aberrations” in her corneas that were affecting her vision. He recommended that she see Dr. Francis Price, M.D., an ophthalmologist and cornea specialist, whom Tracey visited the following day. Dr. Price also examined Tracey's corneas and saw the complications caused by the surgery. He determined that her left eye was worse than her right, and the next day, Dr. Price performed a non-invasive, corrective procedure on Tracey's left eye that involved pulling back the flap created during the surgery, smoothing it out, and laying it back down as evenly as possible.3
Tracey continued to see Drs. Conner and Price regularly for some time. Both doctors saw improvement in Tracey's corneas and vision, but they also observed lingering problems. Tracey continually complained of defects in her vision, such as ghosting (a form of double vision), shadowing, and halos and glare around lights. By mid-2003, scarring had developed on Tracey's left cornea, so Dr. Price performed a corrective laser procedure to remove some of the scarring. After the treatment, he again observed improvement. Tracey last saw Dr. Price in June 2006 and Dr. Conner just before trial in 2007. During those visits and up through trial, Tracey still complained of ghosting, shadowing, halos, and glare symptoms.
In 2002, the Wallaces filed a proposed complaint with the Indiana Department of Insurance and appeared before a Medical Review Panel, pursuant to the Indiana Medical Malpractice Act. The Panel concluded that Dr. McGlothan did not act negligently when operating on Tracey's right eye but was negligent in operating on her left eye. In the Panel's view, Dr. McGlothan should not have proceeded to perform surgery on Tracey's left eye after the buttonhole flap complication arose on the right eye.
The Wallaces then filed a diversity action in federal district court in Indiana on November 1, 2005. Prior to trial, the district court granted partial summary judgment for both sides. Relying on the opinion of the Medical Review Panel, the district court found that Dr. McGlothan was not liable for any damage to Tracey's right eye, but was found to have breached the standard of care as to her left. A jury trial was set to determine the amount of damages, if any, that Dr. McGlothan caused to Tracey's left eye.
At trial, the Wallaces argued that the LASIK complication injured Tracey's left eye and permanently impaired her vision. The jury heard testimony from several doctors, including Drs. Conner and Price, in addition to both Tracey and Eric Wallace. Dr. Conner testified that, on April 29, 2002, he observed “aberrations” and “waviness” in Tracey's corneas due to the surgical flap, and he described his prognosis for Tracey as “poor.” Dr. Conner observed that Tracey's vision was “distorted,” which is a more general name for the ghosting and glare symptoms, and he explained that such symptoms are congruent with the aberrations he saw in Tracey's cornea. He also explained to the jury why these problems can be particularly severe in dim light, such as at night, and that he had written a letter to Tracey's employer recommending that her hours be adjusted so she did not have to drive after dark.
Dr. Conner observed “irregularities” in Tracey's corneas throughout his treatment of her. When asked whether there had been any change in her condition from her visit in November 2003 to his examination of her just before trial in 2007, Dr. Conner testified: He then said that he saw no change in the extent of the aberrations that he observed in 2007 compared with 2003.
Lastly, Dr. Conner testified to the healing propensities of the cornea and his expectations for Tracey's vision long-term. He testified that, after an injury or surgery on the cornea, a person's vision will gradually heal, but will normally not improve after six months to one year. Dr. Conner stated that he could not foresee any further improvement in Tracey's vision, particularly in dim light or driving situations.
The jury also heard testimony from Dr. Price, via deposition transcript. Dr. Price testified that he first saw Tracey on April 30, 2002, and he described Tracey's cornea as “mangled and kind of cut up into little pieces.” Regarding her prognosis, Dr. Price remarked that, “because of the irregularities of the flap and the rest of the cornea, how it all fit together, it's just a very difficult problem to try to remedy and fix.” Dr. Price explained that the best time to repair irregularities in a corneal flap is at the time of surgery, because the flap is easier to smooth out. After surgery, folds and wrinkles in the flap are harder to remove. He also testified that he believed the left cornea sustained more damage than the right. Because the left flap still contained wrinkles five days after the surgery, Dr. Price recommended the “flap lift” procedure. On May 1, he performed this procedure on the left eye and discovered the cornea's condition was worse than he anticipated: “[I]t was one of the worst things I've ever seen.”
Like Dr. Conner, Dr. Price testified to his observations and treatment of Tracey over the next several months. Her eye improved but the irregularities did not disappear, and Tracey continually complained to Dr. Price of ghosting and glare. Dr. Price explained that he anticipated both of these symptoms, in addition to problems with night driving, based on Tracey's corneal irregularities and scarring. He attempted to reduce these symptoms through the scar-removal procedure. He noted, however, that the procedure would likely lessen the density of the scarring with time, but “the surface irregularity may not be any better.”
Dr. Price also testified about his final examination of Tracey in June 2006. He still observed some areas of scarring and irregularity, and he noted that Tracey still complained of ghosting and glare at night. As to whether what he observed comported with Tracey's symptoms, he said they did in her right eye and did “to some degree” in her left. He stated that Tracey will need ongoing care for the gas-permeable contact lenses, which she must now wear.
The jury then heard from the Wallaces. Tracey testified that the symptoms of ghosting, shadowing, and glare persist today, and that they are particularly acute at night. Both Tracey and Eric testified that Tracey can no longer drive at night.
On cross-examination, Dr. McGlothan's counsel asked Tracey about the patient history form she filled out in Dr. Conner's office. He asked whether her response on the form pertained to conditions that pre-existed the LASIK surgery, and she testified as follows:
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