Devadas v. Niksarli

• Decision Date: 04 September 2014
• Citation: 992 N.Y.S.2d 197,120 A.D.3d 1000,2014 N.Y. Slip Op. 06032
• Court: New York Supreme Court — Appellate Division
• Parties: Johnson DEVADAS, et al., Plaintiffs–Respondents, v. Kevin NIKSARLI, M.D., et al., Defendants–Appellants.

120 A.D.3d 1000

992 N.Y.S.2d 197

2014 N.Y. Slip Op. 06032

Johnson DEVADAS, et al., Plaintiffs–Respondents,

v.Kevin NIKSARLI, M.D., et al., Defendants–Appellants.

Supreme Court, Appellate Division, First Department, New York.

Sept. 4, 2014.

Kaufman Borgeest & Ryan LLP, Valhalla (Edward J. Guardaro, Jr. of counsel), for appellants.

Law Office of Todd J. Krouner, Chappaqua (Todd J. Krouner of counsel), for respondents.

MAZZARELLI, J.P., FRIEDMAN, RENWICK, DeGRASSE, GISCHE, JJ.

Judgment, Supreme Court, New York County (Doris Ling–Cohan, J.), entered August 12, 2011, upon a jury verdict in favor of plaintiffs, modified, on the law, to the extent of dismissing the derivative claim of plaintiff Saramma Devadas, and otherwise affirmed, without costs.

In March 2004, plaintiff Johnson Devadas (plaintiff), a 25–year–old pharmacist, accompanied his wife when she went to consult defendant Kevin Niksarli (defendant), an ophthalmologist specializing in Lasik surgery. ¹ A Lasik surgeon attempts to improve vision by cutting a flap in the eye with a laser and reshaping the cornea to allow light to fall on the retina, instead of in front of or behind it. Plaintiff had not himself been considering Lasik, but he was nearsighted and found that wearing glasses and having to focus on a computer screen at his pharmacy gave him headaches.He decided to be evaluated by defendant that day, too. Defendant told plaintiff he was a suitable candidate for the procedure, after plaintiff was put through various tests. These included a topography, which plotted the shape of his cornea, and a pachymetry exam, which measured the thickness of his cornea. Defendant also performed an autorefraction and a slit lamp test.

Plaintiff decided to go through with the procedure and scheduled it for April 6, 2004. That day, he was given a Valium tablet because he was nervous, and was then given a written consent form, which he signed. The form listed a variety of possible complications, including evening glare, less-than-corrected 20/20 vision, haloed vision, double vision, progressive corneal thinning (also known as ectasia), and complications that might require further procedures, including a corneal transplant.

Plaintiff returned to defendant's office the day after the procedure, as instructed. He told defendant that his left eye was blurry and tearing, and that he felt like he had grains of sand inside his eye. The doctor told him that this was a normal and temporary condition which would subside. At his next follow-up visit on April 19, 2004, plaintiff again complained of the blurry vision in his left eye, and told defendant that, while the tearing had stopped, he was now experiencing dryness in that eye. According to plaintiff, defendant was dismissive, and recommended rewetting drops. At his six-week postoperative appointment, on May 19, 2004, plaintiff made the same complaints but recalled that defendant was again dismissive, telling plaintiff that he was expecting too much so soon after the surgery, and that he needed to give his eyes time to heal. Defendant told plaintiff to follow up “as needed,” and that he could come back any time. According to plaintiff, although “[t]here was no definite time [he] had to come back to him,” he considered Dr. Niksarli his “ophthalmologist for life.” This was based on plaintiff's recollection that defendant had assured him that the procedure came with a lifetime guarantee.

Plaintiff had no further contact with defendant until February 21, 2007. Although the postsurgical blurriness had never really gone away, plaintiff stated that he learned to adapt to it. By early 2007, however, the blurriness had gotten worse, and plaintiff began experiencing visual distortions and double vision. At the February appointment, defendant performed tests similar to those he had performed preoperatively, and diagnosed plaintiff with a condition called forme fruste keratoconus (FFK). Keratoconus is a bilateral bulging of the cornea and the forme fruste type is an early presentation of the condition. Defendant told plaintiff that it was a genetic condition where the collagen inside the cornea progressively weakens, with no known cure except an experimental procedure being performed by a doctor in California. Defendant told plaintiff that the Lasik surgery had nothing to do with the onset of plaintiff's condition.

Plaintiff commenced this action on May 31, 2007, alleging that defendant committed medical malpractice. His wife interposed a derivative claim. Defendant moved for summary judgment, arguing that plaintiff filed his summons after the expiration of the 2–1/2 year statute of limitations for medical malpractice actions (CPLR 214–a). He argued that the cause of action accrued on April 6, 2004, when he performed the Lasik procedure. Plaintiff, in opposing the motion, invoked the continuous treatment doctrine, contending that defendant had continued treating him for a blurry vision condition, with no interruption, after the surgery was performed, and up to and including his last visit to defendant on February 21, 2007. Plaintiff's expert opined that the blurry vision for which plaintiff visited defendant in February 2007 was related to the Lasik surgery, because the Lasik caused the dormant condition of FFK to manifest into a more active keratoconus, which severely affected plaintiff's vision. Defendant countered by asserting that the last possible date he could be considered to have treated plaintiff was May 19, 2004, at the six-week postoperative checkup, which would render the action time-barred. He argued that plaintiff made no complaints at the time, and had corrected vision of 20/20. He further stated that, although instructed to schedule a routine ophthalmology exam with defendant, three to six months in the future, plaintiff never did so. Finally, defendant argued that the blurriness which prompted plaintiff to visit him in February 2007 was unrelated to the blurriness the Lasik surgery was designed to address.

The court denied the summary judgment motion, finding that issues of fact precluded it from determining the continuous treatment question. The case proceeded to trial. Dr. Paul B. Donzis, plaintiff's expert ophthalmologist, reiterated his opinion, laid out in opposition to the summary judgment motion, that plaintiff had mild dormant FFK before surgery, and that the Lasik surgery weakened plaintiff's cornea such that it triggered the dormant FFK to become active. Thus, he stated, while the surgery was technically performed well, it should have never been performed in the first place. Dr. Donzis testified that dormant FFK can become triggered anywhere from a month or two to five years after Lasik surgery. He further testified that plaintiff's blurry vision immediately after the surgery could not have been from FFK; rather, it was normal temporary Lasik postsurgical blurriness. He stated that plaintiff did not begin experiencing FFK-related blurriness until a few months before the February 2007 visit with defendant.

Defendant's main expert, an ophthalmologist named Dr. Peter Hersh, opined that, upon reviewing the 2004 data, the topography of plaintiff's eyes did not indicate that he had FFK prior to the Lasik procedure. Therefore, he stated, defendant's assessment of plaintiff's condition was appropriate, and Lasik surgery was not contraindicated. Dr. Hersh further testified that a patient can develop FFK absent a Lasik procedure, and there was no causal connection between plaintiff's Lasik surgery and his subsequent development of FFK.

The jury returned a verdict for plaintiff, specifically finding that the last date of continuous treatment was February 21, 2007. It awarded plaintiff $100,000 for past pain and suffering, $3,000,000 for future pain and suffering over 45 years, $60,000 in lost earnings, and $740,000 for future lost earnings for a period of 37 years ($20,000 per year). The jury awarded plaintiff's wife $20,000 for past loss of services and $100,000 for future loss of services. Defendant moved for, among other things, judgment notwithstanding the verdict, or, in the alternative, for an order setting aside the verdict and directing a new trial on the grounds that the verdict was against the weight of the evidence and that the court had committed prejudicial errors, or, in the alternative, for an order reducing the damages. The court denied defendant's motion. Regarding defendant's argument that the claim was barred by the statute of limitations, the court stated that the “issue of whether [plaintiff's] February 21, 2007 visit to [defendant] constituted continuous treatment was determined to be a question for the jury, in defendants' previous summary judgment motion.”

As a preliminary matter, we note that defendant's statute of limitations defense must be analyzed in light of the fact that the question of the applicability of the continuous treatment doctrine was put before, and decided by, a jury. Accordingly, the jury's verdict on that issue should only be set aside as not supported by sufficient evidence if “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978] ). Accordingly, we review the issue with great deference to the jury.

The continuous treatment doctrine is codified at CPLR 214–a, which provides, in pertinent part, that “[a]n action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure.” One of the purposes of the doctrine is to permit a doctor to address a possible act of malpractice without the distraction of...