Davis v. Kraff

Citation405 Ill.App.3d 20,344 Ill.Dec. 600,937 N.E.2d 306
Decision Date08 October 2010
Docket NumberNo. 1-09-1181.,1-09-1181.
PartiesMarla DAVIS, Plaintiff-Appellant, v. Colman KRAFF and Kraff Eye Institute, Ltd., Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

Steinberg, Goodman & Kalish, Bruce D. Goodman, Peter M. Dapier, Bradley D. Steinberg, Chicago, IL, for Plaintiff-Appellant.

Donohue, Brown, Mathewson & Smyth, LLC, Richard B. Foster, Karen Kies DeGrand, Timothy L. Hogan, Chicago, IL, for Defendants-Appellees.

Presiding Justice GARCIA delivered the opinion of the court.

[344 Ill.Dec. 603, 405 Ill.App.3d 21]

Plaintiff Marla Davis appeals from a jury verdict in favor of defendants Dr. Colman Kraff and the Kraff Eye Institute, Ltd. (KEI), in her medical negligence action following two laser-assisted in situ keratomileusis (LASIK) eye surgeries. Ms. Davis's action was premised on the defendants' alleged failure to inform her that she had an increased risk of nighttime vision problems following LASIK surgery based on her claimed abnormally large night-adjusted pupils. Ms. Davis contends she should receive a new trial because Judge Clare E. McWilliams abused her discretion in admitting testimony by defense experts in two areas: (1) an expert testified that research conducted after Ms. Davis's surgeries revealed that large night-adjusted pupils are not predictive of post-LASIK nighttime vision problems; and (2) experts opined that Ms. Davis's large night-adjusted pupils at the time of trial were caused by her use of certain antiallergy and antidepressant medications. We hold Judge McWilliams properly admitted the disputed testimony by defense experts for the express purpose of rebutting the testimony of the plaintiff's experts as to the cause of her enlarged pupils and her ultimate injuries. We affirm.


Plaintiff Marla Davis developed nighttime vision problems after the defendants performed LASIK surgery on both eyes in July 1998. A second LASIK "enhancement" procedure in August 1999 sought to address the problems. In her second amended complaint, Ms. Davis alleged that prior to the surgeries, the defendants failed to discover that she had abnormally large night-adjusted pupils and, as a consequence, failed to inform her that her large dilated pupils increased the risk that she would develop postsurgical nighttime vision problems. The trial became a classic battle of experts.

LASIK Surgery

Dr. Martin Markowitz, an ophthalmologist and the first of the plaintiff's experts to present testimony, outlined for the jury in his videotaped deposition the eye's basic anatomy and how the LASIKprocedure impacts the structure. Dr. Markowitz described the cornea as the "clear window of the eye in which a contact lens sits." Beneath the cornea is the pupil, a space in the center of the colored portion of the eye or iris. The pupil controls the flow of light to the retina in the back of the eye by contracting in bright light and dilating in dim light. The retina processes the light admitted through the pupil into an image. In many cases of nearsightedness, the cornea improperly refracts light, misdirecting the light to an area slightly in front of the retina rather than squarely on its surface. LASIK surgeons use a laser to "ablate," or dissolve, a portion of the corneal tissue to shorten the distance between the cornea and the retina to correct the refractive error in nearsighted patients.

When LASIK was first developed, the eye surgery lasers available for use by ophthalmologists could only "ablate" a section of the cornea up to five millimeters in diameter. At the time, ophthalmologists believed that if a patient's dilated pupils exceeded five millimeters, the patient might perceive postsurgery glare when light strikes an untreated portion of the cornea as it passes through the pupil to the back of the eye. By the time of Ms. Davis's first surgery in 1998, technological advancements expanded the diameter of eye surgery lasers to 6 millimeters, and by the time of Ms. Davis's second surgery in 1999, the laser diameter had expanded to 6 1/2 millimeters.

[344 Ill.Dec. 604, 937 N.E.2d 310]

LASIK Treatments

Ms. Davis testified that on July 16, 1998, she went to KEI for a consultation. She met Dr. Kraff, who explained how LASIK surgery works. Ms. Davis quoted Dr. Kraff as stating she "would be the ideal candidate for this procedure." Dr. Kraff gave Ms. Davis a medical consent form, which she read and initialed. Specifically, Ms. Davis initialed a paragraph that detailed possible problems a LASIK patient might experience postsurgery: "at night there may be a 'starbursting' or halo effect around lights," a condition which "could be permanent." The consent form cautioned that her postsurgical vision "may not seem as sharp at night as during the day and that [she] may need to wear glasses at night." The consent form also disclosed the risks of total blindness and the loss of her eyes should rare complications occur. Ms. Davis testified that although she signed the form, she "wasn't willing to undergo any additional risks for a procedure when I could see very well already." Dr. Kraff did not inform Ms. Davis that she faced increased risks for other possible problems. Ms. Davis could not recall whether the diameter of her pupils was measured during the initial consultation. Dr. Kraff scheduled Ms. Davis to undergo LASIK surgery on both eyes six days later.

Two days prior to the surgery, Ms. Davis returned to KEI to be examined "a little more in depth." Ms. Davis testified she was never examined "in a room where they turned the lights down all the way." However, according to KEI records in evidence, KEI employee Mark Whiteside examined Ms. Davis prior to her initial surgery and recorded the diameter of her pupils as three millimeters in bright light and five millimeters in dim light.

Dr. Kraff performed LASIK surgery on both eyes as scheduled, using an eye surgery laser with a diameter of six millimeters. A videotape of the surgery was played for the jury. Dr. Kraff later testified that the videotape showed Ms. Davis's pupils ranged in diameter from three millimeters in normal light to six millimeters in dim light.

Ms. Davis testified that shortly after surgery she experienced nighttime vision problems, including glare and halos around lights, which she reported to the defendants. Dr. Kraff informed her that such problems were to be expected during the healing process and with time the problems would clear up.

Approximately 10 months later, Ms. Davis returned to KEI with the same complaints of nighttime vision problems, including "glare[,] halos [, and] starbursting." According to Ms. Davis, Dr. Kraff again said the problems were temporary. He also gave her a prescription for eyeglasses because the visual acuity in her left eye remained imperfect even after the LASIK procedure.

About a month later, Ms. Davis returned to KEI because her nighttime vision problems continued. KEI's clinical manager, Monica Bowles Watson, testified she measured the diameter of Ms. Davis's pupils on this visit as four millimeters in normal light and six millimeters in dim light. To measure Ms. Davis's pupils in dim light, Ms. Watson turned off all the lights in the exam room, except the desk light, for 10 minutes. She then measured the diameter of Ms. Davis's pupils by comparing them to a chart. Dr. Kraff also testified that on this visit he examined Ms. Davis with a retinoscope, which uses a point of light directed to the eye in dim conditions to accurately estimate the pupil's diameter. Ms. Davis's eyes tested normal under the retinoscope.

[937 N.E.2d 311, 344 Ill.Dec. 605]

Ms. Davis testified, however, that on June 21, 1999, Dr. Kraff "told me that my pupils dilate larger [than normal]," and that she was perceiving glare when her pupils dilated to a greater diameter than the cornea area he treated in the LASIK procedure. According to Ms. Davis, Dr. Kraff suggested that she stop taking her antiallergy prescription medication, Allegra-D, to "see if that helps." Dr. Kraff testified that he asked Ms. Davis to stop using Allegra-D for a few days because a compound in that medicine, pseudoephedrine, can cause pupils to dilate to a larger size than normal. Ms. Davis testifiedshe stopped taking Allegra-D, but did not notice any improvement in her vision. According to Ms. Davis, Dr. Kraff stated if her symptoms did not improve he could perform "an enhancement * * * that's made for larger pupil size." She elected to have the enhanced LASIK surgery.

On August 23, 1999, Ms. Davis met with Dr. Kraff and signed a medical consent form identical to the form she signed for the first LASIK surgery. That same day, KEI technician Laura Dominow measured the diameter of Ms. Davis's pupils. To conduct the measurement, Ms. Dominow turned off all the lights in the exam room except for a small "can light." She recorded the diameter of Ms. Davis's pupils as four millimeters in normal light and six millimeters in dim light.

Dr. Kraff performed the enhancement surgery on August 24, 1999, using an eye surgery laser 6 1/2 millimeters in diameter. A videotape of that surgery was played for the jury. Defense expert Dr. Steven Schallhorn later testified that the videotape showed Ms. Davis's pupils varying in diameter from "three [to] maybe a little less than six" millimeters, depending on the lighting conditions.

Ms. Davis testified she returned to KEI shortly after the "enhancement" surgery and reported that she was still having vision problems in dim lighting. She was told this was part of the healing process and it might take up to two years for the problems to resolve following a second LASIK procedure. Shortly thereafter, Ms. Davis moved from Illinois.

After two years passed, with Ms. Davis continuing to experience nighttime vision problems, she consulted three ophthalmologists near her Cleveland, Ohio, home: Drs. Martin Markowitz, Greg Louis, and Jack Peretz. Ms. Davis was first examined by Dr....

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