HE'D BEEN MUGGED!
He'd been mugged while walking down a Brooklyn street one morning. They took his wallet and his money. They also beat him upside his head pretty bad. The emergency room doctor gave him the bad news.
"You have an orbital fracture. Also, the muscle that controls your eye movement from left to right is stuck inside the bone fragments. It needs to come out," said the ER doctor. "You need surgery."
They told him to find an eye doctor on his health insurance plan. That's what he did. Someone in the neighborhood. She was on his plan.
She examined him. She told him he needed surgery to fix the broken bones in his eye socket and remove the stuck muscle that controls his eye movement. She said she'd done this type of surgery many times before.
He believed her. He had no reason not to believe her. She seemed like she knew what she was talking about. She sounded confident. She appeared to have experience doing this type of surgery. So, he said "Ok, go ahead."
What he didn't know is that she'd only done this type of surgery five times during her thirty year career. That's it! Just five times. She didn't bother to tell him that.
Surgery is where she screwed up. Big time.
Her plan was to remove the muscle from the bone fragments.
She did that. She also tested his mobility. She actually made his eye move left to right and right to left during surgery by manipulating the muscle. Now, his eye would be back to normal.
I should mention that this gentleman's vision was still excellent even after this mugging. The only problem he was having was that his eye was pointing out to the side instead of straight ahead. When he covered his good eye, he still had good vision in the eye looking to the side.
Kind of freaky, but hey, she was there to fix it.
Once she confirmed that the eye was back to its normal position, she began to fix the bone fragments. She needed to hold the broken pieces together to heal. The way to do that is using a titanium plate with titanium screws. She attached the plate to each of the broken bone fragments and secured them tight using special screws.
Then, she closed him up, put a patch over his eye and said she'd see him tomorrow to take the patch off.
Well, that's what she did.
The next day she returned to the hospital to check on her handiwork. She fully expected him to be fine. She had no complications during the surgery.
She walked into his room and took the patch off his eye.
"So! What do you see?" she asked expectantly.
"Did you take the patch off?" he asked her.
"Yes. What do you see?" she again asked.
"Nothing. Not shapes. Not light, only black. Nothing."
She examines his eye and says "Let's get you an MRI immediately to see what's going on with your eye."
After the MRI is done she reads it. She tells him she needs to take him back into surgery immediately. She says she's going to move some things around and hopefully that should do the trick. He says "Do what you have to do. I just want my eyesight back."
What she DIND'T tell him was that the MRI showed the implant had cut and transected the optic nerve. What she didn't tell him was that this never should have happened. What she didn't tell him was that moving the implant and the screws and the bone fragments at this point would be useless.
I suspect she was freaking out. I suspect she thought that somehow by moving the implant away from the optic nerve, his vision would somehow, miraculously be restored.
The fact is that once the optic nerve is cut, that's it. Light's out. Permanently.
The fact is that she didn't recognize the titanium implant was in or near the optic nerve. She never looked. She never identified the optic nerve. If she had, she'd have known to stay far away from it.
She should have known the anatomy. If she didn't, she should have had the knowledge to call in an expert. She didn't.
Well, she took him back to surgery that same day. She removed the titanium screws that she had put in just yesterday. She moved the implant away from the optic nerve. Then she secured the bone fragments to the implant using the titanium screws. She closed him up and told him she'd be back tomorrow.
She knew what the outcome would be, but never told him.
She knew that cutting his optic nerve killed his eyesight in his eye. Forever. There's no going back.
Moving that implant was just for show. It was just to reassure her that she did something to try and restore his vision.
But she knew. She had to know.
She saw the result on that MRI. It conclusively showed the nerve that connects the brain to his eye was cut. Cut by the implant that she placed too near the optic nerve. It hadn't moved. It hadn't become displaced. He didn't cause it to move. He had nothing to do with his loss of vision.
She was careless.
She violated the basic standards of medical care.
She STOLE his vision just as sure as if she had mugged him for it.
We know she didn't do it intentionally. We never said that. What we did claim is that because of her carelessness, because of her negligence, this patient lost his vision.
There was no other explanation.
I asked her during her pretrial question and answer session whether there were any doctors in Brooklyn or New York City who have more experience than her doing this type of procedure.
"Yes," she answered.
"What type of specialty doctor does this type of procedure on a regular basis?" I asked.
"A neuro-ophthalmologist," she answered.
"Are you a neuro-ophthalmologist," I asked, knowing full well she was not.
"No," she replied.
"How many times in your career had you performed this type of surgery?"
"About five times," she answered to my amazement.
"Who do you think would be more proficient at this type of procedure, a physician who performed hundreds and hundreds of these procedures in his career or someone who has only performed five of these procedures over the course of thirty years?" I asked innocently.
That question generated an "OBJECTION!" from her lawyer. After the legal arguing settled down, she was still required to answer my question. "I am still qualified to do this surgery," she said by way of explanation. I wouldn't let this question go. So, I asked it again, slightly differently.
"Doctor, would you agree that a physician who performs this procedure hundreds of times during their career would be proficient at it?"
"Yes," she said.
"Would you agree that a doctor who performs hundreds of these procedures is likely more proficient than someone who has done only five of them during their career?" I again asked. She didn't want to answer. I knew the answer. She knew the answer. I had to get her to verbalize her answer.
"Yes," she reluctantly said.
"Would you agree that it would be a violation from good medical and surgical care to place an implant onto the optic nerve?" I asked.
"Would you agree that cutting and transecting the optic nerve with a titanium implant would be a departure from good surgical care? I asked, getting to the heart of the case.
Again, reluctantly she answered "Yes."
"Can you explain to me how this patient's optic nerve was cut?" I asked.
She didn't want to answer this question. Her attorney, sensing this volatile and deadly question objected. However, the beauty of our legal system required the person being questioned to answer all of my questions with just two exceptions.
Her attorney raised certain legal objections, which he has a right to do. After the yelling settled down, I turned to the doctor and said "Go ahead doctor, you can answer my question now..."
She proclaimed she didn't know how it happened.
"The implant wasn't touching or near the optic nerve when I closed the patient up," she claimed.
"Then how do explain his inability to see the following day?" I inquired.
"Maybe there was swelling from the surgery putting pressure on the optic nerve. That's why I decided to go back in, see if there was any localized swelling or fluid. There wasn't, so I decided to move the implant away, hoping that would relieve the pressure," she answered.
"Didn't you see on MRI that the optic nerve was cut?" I asked incredulously.
"No, on MRI it didn't look like it was cut. The implant looked close to the optic nerve but it did not appear touching or to have cut it," she said.
I tried a different track...
"Doctor, are you a radiologist?" I asked, knowing full well she was not.
"Are you a neuro-ophthalmologist?" I asked, again, knowing she was not.
"Did you review the patient's MRI with a board certified radiologist to get his opinion about the location of the implant and its proximity to the optic nerve?" I knew the answer, but needed her to confirm it.
"No I did not," she said.
"Doctor are you aware of any doctor at this hospital, either a radiologist or a neuro-ophthalmologist who read and interpreted this MRI?"
The next day she returned to the patient to take off his patch. She was hoping that somehow he'd now have vision.
She took the patch off and said "What do you see?"
He hesitated for a moment, then said "NOTHING! WHAT DID YOU DO TO ME?? WHY CAN'T I SEE?" he demanded to know.
The excuses started to flow. One after the other. "There's some swelling in and around your eye and the optic nerve. We're going to give you steroid drops to reduce the inflammation and that should help," she told him. This was a lie. An outright lie.
She knew. She knew his optic nerve was cut. She knew there was no going back. She knew the steroids would never restore his vision. But she couldn't own up to her actions. She never took responsibility for what she did.
This remarkable man came to me almost in tears. "I had good vision in my eye! She took my eyesight. She told me everything would be Ok. I trusted her and now I can't see out of my eye! WHY?" he wanted to know.
It took months before I was able to get all of his medical records and the MRI scans. I sent those records to an eye doctor and a neuro-ophthalmologist to review. After weeks of reviewing his records I spoke to both of them. They both confirmed what I suspected.
This eye doctor violated the basic standards of medical care. This injury NEVER should have happened. She NEVER should have done this surgery since she had almost no experience doing it. It should have been done by a neuro-ophthalmologist who does hundreds and hundreds of these exact surgeries during his career.
The reason why he lost his vision was clear cut (pun intended) on the MRI she took the day after the original surgery. It showed his optic nerve had been cut. The word the doctors used was 'transected' by the titanium implant. That deprived him of his vision. That meant he'd be blind in that eye permanently.
All because she was careless. All because she thought she'd try out this surgery that she hadn't done in many years. All because she failed to refer him to a qualified eye surgery to fix this problem. She STOLE his eyesight just as sure as if he'd had it stolen from him.
So why do I share this tragic story with you?
To show you just one example of a man who needed legal help when he couldn't get straight answers from his doctor about why he suffered blindness following this surgery.
To learn even more about this case and two other injured patients I was able to help, I invite you to watch the video below. It's educational, entertaining and eye-opening...
by Gerry Oginski [email protected]
NY Medical Malpractice & Personal Injury Trial Lawyer
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Gerry Oginski, Esq.
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