Opinion
0112872/2004.
June 6, 2008.
In this medical malpractice action in which it is claimed that plaintiff, Pamela Alexander ("Alexander"), suffered injury to her right eye as a result of LASIK surgery performed by defendant Julia D. Katz, M.D., Dr. Katz and co-defendant, Ken Moadel, M.D., a co-employee and sole shareholder of the professional corporation which employed both of these defendants, move for an order granting them summary judgment dismissing the complaint or alternatively dismissing the lack of informed consent cause of action.
Alexander, who has her masters degree in social work, and works as a hospital social worker (Alexander EBT, p 91), before having the LASIK surgery performed by Dr. Katz went to two other ophthalmologists and "imagines" that she would have asked them about the enhancement rates or risks of the procedure. See Alexander EBT, 24-26,18 Alexander testified that she probably also consulted her computer regarding the enhancement rate, infection rate and blindness. Id 18-19 Her husband, Francis Alexander, testified that when his wife had discussions with him about LASIK surgery, he was "hesitant" because he was "worried that it might not come out right" and had heard that there were sometimes problems with the "procedures not coming out right". F. Alexander EBT, 6-7 He believed that "an improvement for a significant amount of money with some risk to his wife's eyesight" was not something that should be entered into lightly. Id 8-9
Essentially, the need to have a subsequent LASIK procedure if the initial LASIK procedure were to be unsuccessful.
Alexander ultimately went for a LASIK consultation with Dr. Moadel after seeing his website. She was informed that his charge for performing LASIK on both eyes was $10,000. An unidentified person thereafter allegedly called from Dr. Moadel's office to follow up and advised that a Dr. Julia Katz could do the procedure on both eyes for a total of $3,000 and that "Dr. Moadel would be overseeing it, he would still be involved in the case". Alexander EBT, p 39 Alexander was allegedly advised by that person that Dr. Katz had a "low enhancement rate . . . had done a lot of surgery and was . . . very good at the surgery". Id 39-40
Dr. Katz had finished her fellowship in LASIK surgery in 2001 and started a practice in July of that year. Katz EBT, pp 8-9 Besides working in her own office where she did not perform LASIK surgery, Dr. Katz worked in Dr. Moadel's office about 1½ days per week where she performed LASIK surgery. Dr. Katz received a fixed salary and a W-2 from Dr. Moadel's office. Id p 12 She and Dr. Moadel were the only two who performed surgery in Dr. Moadel's office. Id 18 When she started working at that office after her fellowship, Dr. Moadel did not explain to Dr. Katz how to use the LASIK machine because she had already been trained to use it during her fellowship, part of which had been spent at Dr. Moadel's office. Id 15
Alexander believes that she set up an appointment to see Dr. Katz. Alexander EBT, p 42 Alexander did not know whether she saw Dr. Moadel on the day she first saw Dr. Katz. Id 43 Alexander believes she asked Dr. Katz about her qualifications and was satisfied with the answers received, otherwise she would not have "allowed her to do the surgery". Id 44 Alexander also believes that Dr. Katz discussed risks of the procedures with her. Id 45; See also Katz EBT, pp 23-28 Alexander signed the detailed consent forms on February 4, 2002 and came back for the bilateral LASIK on February 8. On February 8, Dr. Katz performed the LASIK on Alexander's left eye. Then Dr. Katz began the procedure on the right eye. According to Dr. Katz the procedure is commenced when a device called a microkeratome is centered by her over the patient's pupil. Katz EBT, p45 The device creates a suction to allow a flap to be cut. Id 49 The microkeratome has a ring of a certain size selected by Dr. Katz. The ring size selected on February 8 had, according to chart, a diameter of 9.5, which was to be the diameter of the flaps created. The depth of the flaps was to be 60 microns. The microkeratome also had an automated blade which cuts around the ring to create the flap. Once a flap is cut the laser which is calibrated by a technician is centered over the pupil by the surgeon, in this case, Dr. Katz, who applies it. Id p 48 When Dr. Katz commenced the procedure on Alexander's right eye using the microkeratome, the suction was broken before the flap was completely cut, so that there was at that point a small partial incision in Alexander's right cornea. Id 44, 52
According to Alexander, Dr. Moadel, whom Alexander did not recall seeing before the procedure performed by Dr. Katz (Alexander EBT, p 70), was brought into the operating room by Dr. Katz "after the vacuum broke" (Id 72, 82). He and Dr. Katz were checking to see whether the right eye was cut. Id 76 Dr. Moadel agreed with Dr. Katz that Alexander should wait three months to continue with the surgery on the right eye. Id 85 The chart indicates that Alexander paid via Amex card and check but does not indicate the name of the payee. The next day Alexander came back for a post-operative visit with Dr. Katz. She did not remember seeing Dr. Moadel. Alexander EBT, 92 Alexander went for more post-operative visits but did not recall who she saw in April and May. Id 96, 98, 100 Ultimately about 3 months after the first surgery Alexander on June 27, 2002 signed a consent for the right eye surgery, which form was initialed by Dr. Katz as the "Physician". Dr. Katz performed the right LASIK procedure on June 28. There is no claim by Alexander that Dr. Moadel was in the operating room during the second surgery. Instead of using a 9.5 ring, as she did during the first surgery, Dr. Katz selected a 8.5 ring to avoid the area of the cornea that had been cut in the aborted flap. Katz EBT, 60 The flap was also cut deeper, to 180 microns. According to Dr. Katz the normal limits for cutting the flap in relationship to the cornea is for the flap to be centered over the pupil. Id 61 There is no claim by any party that the microkeratome malfunctioned during this procedure, which apparently was uneventful. Dr. Katz testified that throughout the time she saw Alexander the flap was within normal limits. Id 61-62
Alexander had various post-operative visits several of which were with Dr. Moadel, rather than with Dr. Katz. Id 29, 60 Alexander made complaints of blurry vision, a discomfort with night driving, and an inability to wear contact lenses despite having been seen by several optometrists recommended by Dr. Katz and some she saw on her own. While Alexander's uncorrected vision in her left eye was 20/20, the uncorrected vision in her right eye was 20/40 minus (Id 66, 73) which corrected to 20/25 (Id 73). According to Dr. Katz because of irregular healing (Id 80) Alexander developed irregular astigmatism (Id 70,71, 84, 85) which was not amenable to correction by traditional LASIK. Dr. Katz thought at the time that the irregular astigmatism could ultimately be treated with wavefront LASIK, a procedure which had yet not been approved. Id 84-85
On January 6, 2003 plaintiff visited Dr. Herbert Antell, an optometrist, for glasses for distance and driving, and informed him that her last eye exam had been several weeks earlier with Dr. Katz. Motion, Exh. P Dr. Antell wrote in the chart that his assessment was "irregular corneal surface" and that "no Rx helps". His plan was to send her back to "Dr. Model [sic] to adjust — O.D." (the right eye). It appears from the defendants' chart that Alexander last visited the defendants' workplace on February 2, 2003 where she saw an optometrist working there who had attempted unsuccessfully to fit Alexander for contact lenses.
In September 2004 Alexander and her husband commenced this action against Drs. Katz and Moadel. The caption also named New York Eye Specialists as a defendant. The complaint alleged that Dr. Katz was employed by New York Eye Specialists. Complaint ¶ 3 According to Alexander, forms and cards from the office were headed with Dr. Moadel's name and/or "New York Eye Specialists". The complaint further alleged that Dr. Moadel was associated with, employed by, on the staff of and "a shareholder and/or owner" of New York Eye Specialists which was alleged to be a corporation, a partnership or sole proprietorship. Id ¶ 8-13 The complaint also alleged that Drs. Katz and Moadel were negligent in their medical and surgical treatment of Alexander.
More than a year after the action was commenced and apparently when plaintiffs realized that New York Eye Specialists had no jural existence and that Dr. Moadel, Dr. Katz and the optometrist who worked in the office were employees of Ken Moadel, M.D., P.C., of which Dr. Moadel was the president, secretary and sole shareholder, plaintiffs served bills of particulars claiming that Dr. Katz was an agent, associate, employee or ad hoc employee of Dr. Moadel, who allegedly advised Alexander that he would be "involved in" all aspects of her treatment, that Dr. Moadel failed to properly supervise Dr. Katz during the operative procedure and that he was allegedly vicariously liable for Dr. Katz' claimed malpractice in negligently performing the surgery by making the incision in the wrong area of the right eye, by cutting too deeply and by not properly centering the incision, resulting in an irregular decentered scar which allegedly caused, inter alia, problems with depth perception, the ability to wear contact lenses, astigmatism and a decrease in regular and night vision.
It does not appear that plaintiffs ever attempted to add the professional corporation as a defendant which was not originally named because plaintiffs misapprehended that the entity involved was New York Eye Specialists, which presumably was simply a business name for the professional corporation. See e.g. Rivera v Fishkin, 48 AD3d 663 (2d Dept, 2008)
According to defense counsel, after the commencement of this action Alexander visited an optometrist, a Dr. George Amatuzzi, who performed a slit lamp exam which revealed increased tear break up time and a misaligned laser scar on the right eye. See Plawner aff ¶ 38 Plaintiffs' counsel adds that Alexander first saw Dr. Amatuzzi in January 2005. Alexander, complaining of blurry vision, thereafter went to another optometrist, Dr. Veronika Krov, who found that the best corrected vision in Alexander's right eye was 20/25, that color vision and depth perception were slightly reduced and that in the right eye Alexander had compound myopic astigmatism. Dr. Krov was unable to fit Alexander for contact lenses, explaining to Alexander "about her very flat corneal shape in both eyes, due to the LASIK procedures". Following commencement of the action discovery was conducted by defendants and by plaintiffs, who decided against deposing Dr. Moadel.
The branch of the motion which seeks dismissal of the lack of informed consent cause of action is granted as to both movants. Clearly Alexander was aware before she ever saw defendants that there were some risks to the procedure. Moreover it is readily apparent from the extraordinarily detailed and clear consent forms that she signed that Alexander was aware of the relevant risks. Alexander signed not only consents for the LASIK surgery itself but also a separate consent form which outlined the risks, benefits and alternatives to having both eyes operated on at the same time. The consent for Bilateral Simultaneous LASIK form detailed the risk of infection which could lead to significant vision loss, the risk of internal bleeding and retinal damages which could lead to vision loss or permanent blindness and the risks of cloudy vision, scarring, glare, ghost images, increased light sensitivity, under or over correction and night glare. The consent to bilateral LASIK form then contained a "Consent Statement" reciting that the patient understood the risks and benefits and required the patient to circle whether the patient wanted the chance after the first eye was operated on to look around the room to assess the approximate quality of the vision before deciding whether to proceed with the other eye and to see whether a serious complication to the back of the eye occurred. The form contained a circled "I do". The form then required the patient to state why the patient wished to have bilateral surgery, and Alexander wrote "imbalance", a reference to an imbalance in vision, a problem which might occur if the patient chose not to have the two eyes operated on at the same time, which was mentioned on the second page of the three-page form. Alexander signed that form on March 4, 2002.
On that same day Alexander also signed a two-page "Consent to Have LASLK Surgery" form which required Alexander to place her initials next to four categories of risks, which were titled in bold lettering. These risks included loss of best corrected vision, due, inter alia, to infection, irregular scarring or irregular cornea healing, the inability to successfully wear contact lenses, light sensitivity, glare and other problems which may affect the ability to drive and judge distances, astigmatism, and the necessity to stop the procedure if the microkeratome or the excimer laser malfunctioned. The form also required Alexander to check true or false next to the fact that she might have evening glare which would make it difficult for her to function at night and that she may not be able to have 20/20 vision even with glasses or contact lenses after the procedure.
The form went on to recite that in signing it Alexander was stating that she had read it, had the chance to ask questions and had them answered to her satisfaction. The form further recited that to ensure that the patient understood the information provided the patient was asked to copy the statement, "I understand the information presented and am willing to accept the fact that I may need glasses or contact lenses or further surgery following LASIK to achieve the best possible level of vision." Alexander copied that statement and also signed the consent form on March 4, 2002. According to Dr. Katz she discussed the consent forms and many of the risks including problems with nighttime vision, glare, loss of the best corrected visual acuity, the possible need to wear glasses after the procedure, the potential need for enhancement surgery, and LASIK flap irregularity due to problems cutting the flap and irregular flap healing.
It is readily apparent from the foregoing that Alexander's informed consent to LASIK surgery was obtained by Dr. Katz. In fact Alexander testified that she "probably" had a discussion with Dr. Katz about the risks of LASIK. Alexander EBT, p 45 That Alexander did not "recall" her discussions with the physician (Id 54, 57-58, 65-66) or reading the consent forms which she admittedly signed, initialed and wrote on (Id 53, 58-59, 61) is unavailing, as are Alexander's claims in her opposing affidavit that she did not comprehend the consent forms and would not have consented if she knew that Dr. Katz would not be performing the LASIK procedure within accepted medical standards. The risks which Alexander, who has a master's degree, has suffered were clearly set forth in the consent forms and were comprehensible. Moreover in obtaining a patient's informed consent a physician is not required to let a patient know that the physician may depart from accepted standards of medical practice. Further Alexander and her expert disavow the lack of informed consent claims by asserting that her results were in fact caused by the failure to properly perform the procedure rather than being due to a known risk of surgery. See Alexander aff 12/13/07 ¶ 12 Thus the lack of informed consent cause of action is dismissed as to both moving defendants as are any derivative claims predicated on a claimed lack of informed consent.
This leaves the branch of the motion made on behalf of Drs. Katz and Moadel which seeks dismissal of the claimed departures from accepted standards of medical practice and the attendant derivative claims. The branch of the motion which seeks to dismiss the action as to Dr. Moadel is granted. It is evident from the complaint that Alexander believed that Dr. Katz was employed by an entity, New York Eye Specialists, albeit an entity which had no jural existence. Plaintiffs were free to and still have the power to seek leave to obtain an order to add the professional corporation if they are so advised. As an employee and shareholder of Ken Moadel, M.D., P.C., Dr. Moadel is not vicariously liable for the malpractice of his co-workers. In terms of Dr. Moadel's alleged failure to supervise Dr. Katz, there is no claim in the pleadings or in Alexander's affidavit that Dr. Moadel specifically told Alexander that he would be present in the operating room telling Dr. Katz how to proceed. It is evident from Alexander's deposition testimony that Dr. Moadel was not present in the operating room for the first procedure, and there is no evidence that Alexander ever complained that Dr. Moadel had violated any agreement to supervise that surgery and insisted that he be present for the second surgery. Indeed the price of the surgery was negotiated down because Alexander knew that Dr. Katz, rather than Dr. Moadel, would be performing the surgery, and Alexander satisfied herself that Dr. Katz was competent to do so. Moreover Dr. Katz had finished her fellowship and did not require supervision.
This leaves Dr. Katz's application for dismissal of the first cause of action and the attendant derivative claims. It is apparent from the papers submitted that the claimed negligence relates to the LASIK procedure performed on Alexander's right eye on June 28, 2002. As previously noted, the plaintiffs' pleadings allege, inter alia, that the surgical incision was negligently made in the wrong area of the right eye causing a decentered scar. As a result of that scarring Alexander claims that her vision has been impaired, that she has astigmatism and that she can not wear contact lenses.
In addition to her own deposition testimony Dr. Katz offers the affirmations of defendants' examining ophthalmologist, Dr. Wing Chu, and defendants' expert, Dr. Jack Dodick, an ophthalmologist. Dr. Dodick did not examine Alexander and thus has no personal knowledge as to whether Dr. Katz on June 28 made the flap incision in the correct location. Dr. Dodick's statement (See Dodick aff ¶ 14),"Regardless, similarly, the scar created following LASIK surgery in any event, does not involve the field of vision which requires a perfect corneal surface to give adequate visual fields", seems to be simply an assertion that if the surgery is done properly the scar would not involve the field of vision. Dr. Chu's opinion is similarly unavailing. He asserts that "[i]n each eye [he] observed evidence of the flap cut for LASIK surgery which were equal in both eyes and which would have no effect on visual acuity." It is unclear what Dr. Chu meant when he said that the flaps cut in both eyes were "equal". However they could not have been equal in size or depth because the defendants' chart and Dr. Katz deposition testimony reveal that two different size rings were used and different depths were cut. Dr. Chu renders no opinion regarding whether Dr. Katz's surgery was properly performed, and although Dr. Chu notes that the gist of plaintiffs' claim is that the flap was decentered, Dr. Chu does not specifically state whether it was in fact centered. I further note that Dr. Chu's opinion that Alexander had an excellent LASIK outcome and that her visual difficulties are not related to the surgery is undercut by Dr. Katz's own deposition testimony and defendants' chart. Also, while Dr. Katz asserted at her deposition that the flap and cornea were within normal limits, meaning centered over the pupil, plaintiffs' expert, Dr. Amatuzzi, an optometrist who examined Alexander, specifically disputes this assertion and maintains that the incision was made about 6mm off-center, resulting in an off-center scar which he alleges was a cause of Alexander's diminished vision, impaired depth perception, inability to wear contact lenses and the need to use multiple pairs of eyeglasses. Although Dr. Amatuzzi is not a medical doctor, for purposes of this motion as an optometrist he has adequate expertise to render the foregoing opinion on whether the flap was off-center and whether that resulted in visual impairment. Neither Dr. Katz, Dr. Chu nor Dr. Dodick opined that a failure to center the incision thereby causing a decentered LASIK scar would not amount to negligence in the operative procedure, and thus have not prima facie eliminated such issue raised by the pleadings of the improper performance of the LASIK procedure on June 28. See Bill of Particulars ¶ 1k
In light of the foregoing there is at least an issue as to whether Dr. Katz on June 28, 2002 made the incision off-center, resulting in an off-center scar, whether that would amount to negligence and whether the allegedly off-center scar impaired Alexander's vision. Accordingly the branch of Dr. Katz's application which seeks dismissal of the first cause of action is denied as is the branch of her application which seeks dismissal of any derivative claims, predicated on any of Dr. Katz's alleged malpractice under the first cause of action. The balance of the motion is granted and the entire action is dismissed as to Dr. Moadel and the lack of informed consent cause of action and any derivative claims flowing from it are dismissed as to Dr. Katz.
Settle order.