Up Front | Nov 2005
Anatomy of a Lawsuit II: Closing Thoughts
Mark Speaker, MD, PhD, FACS, shares his experiences on trial.
Stephen G. Slade, MD; Adam Krafczek, JD; and Sara E. Smith, Managing Editor
The staff and editorial board of Cataract & Refractive Surgery Today received an overwhelmingly positive response from ophthalmologists and industry for the “Anatomy of a Lawsuit II” issue.1 But what about the personal side to this ongoing story, the impact to the surgeon? Readers deserve to know what Mark Speaker, the defendant, has to say about his thoughts during and after the trial.
We are most thankful to Mark for his help. He has been more than generous with his time throughout this process and was again willing to answer some difficult questions, including what helped during the trial, what hurt the outcome, and how his practice is faring?
Why was he willing to do this interview with CRSToday? Mark knows we are all at risk to face what he did. I believe he is trying to give his colleagues direction in the event that one of us finds ourselves in a similar situation.
—Stephen G. Slade, MD
DR. SLADE: What did you learn from the trial that you would like to share with your colleagues?
DR. SPEAKER: As surgeons we expect some patients to have undesirable postoperative outcomes, despite our best efforts. After practicing corneal and refractive surgery for 18 years at a level I thought was among the highest in our profession, I believed that I would have the confidence in my patient in the event of a bad outcome, but I now believe that way of thinking is pretty naïve.
DR. SLADE: What is the lesson? Never assume that your patients are going to stick with you?
DR. SPEAKER: I did not initially understand the financial temptation that is dangled before an unhappy patient and the potential plaintiff's attorney, such as that by the New York State legal system, which permits a lay jury that has no technical knowledge to offer unlimited financial awards for medical lawsuits. For the plaintiff and the attorney, it is all about the money. I think there are a lot of better ways to compensate deserving patients.
DR. SLADE: How did your colleagues treat you? Were they supportive?
DR. SPEAKER: Many of my colleagues called or e-mailed me from all over the country and around the world with their support.
DR. SLADE: Was there anything with the trial process that surprised you or that you did not understand?
DR. SPEAKER: I did not understand what a profound influence the judge could have in precluding or allowing evidence that would significantly influence the opinion of the jury. I also did not understand to what extent the plaintiff's attorney and an expert witness could go to turn the gray areas in medicine into absolute black and white, and where the truth either could become exaggerated and/or distorted.
I also did not understand how the objectives of my insurer, which is Medical Liability Mutual Insurance Company, could be different from my own and significantly affect the outcome for me.
DR. SLADE: How were they different than yours?
DR. SPEAKER: At the end of the trial, when the jury asked to review the economic data again, which was introduced into evidence during the trial by the plaintiff regarding his claimed damages, my attorney said this was an indication that we may lose the case, and that the jury was trying to determine how much to award the plaintiff. My attorney asked me if I wanted to settle at that point and I said yes. My insurance company said no, that we should take the verdict. My insurance company's exposure was limited to my policy limits, so it was going to be the same for them no matter what.
DR. SLADE: What other decisions were not in your favor?
DR. SPEAKER: There were many decisions throughout the trial that were not in my favor, some of which were more significant than others. For example, despite the fact that the plaintiff left his banking career after 1 year with no mention to his employer or colleagues of any vision problems as the reason for his leaving, the judge denied my attorney access to the plaintiff's psychiatric records. These could have shed some light on whether his vision was truly the reason for his leaving his employment.
Additionally, the plaintiff was terminated from a previous investment banking position at another firm for making misrepresentations on his job application. On the job application he neglected to report he had been arrested earlier in his life. Nonetheless, the judge stated that we could not refer to this information because it would be too prejudicial.
The judge also denied my attorney's request that I be admitted as an expert witness. According to the judge, it is her practice not to admit a defendant as an expert witness in his/her own case. I believe this ruling had an impact on the jury and their opinion of me.
Finally, for the jury's review, the judge allowed into evidence a 1999 editorial by Doug Koch entitled “The Riddle of Iatrogenic Keratectasia.”2 According to my attorney, this is contrary to New York State procedural law, which prevents literature from being entered into evidence because it allows the plaintiff in essence an expert witness who cannot be cross-examined. The plaintiff's attorney used this editorial to criticize my decision to perform LASIK. The editorial was requested by the jury during their deliberations, and in my opinion undoubtedly influenced their decision.
DR. SLADE: What did you think of the jury?
DR. SPEAKER: It was certainly not a jury of my peers. None of them had any medical background or any means to evaluate what was being presented. The central issues in the case were what was the standard of care in 2000 and interpretation of topography.
DR. SLADE: In this case, did your insurance company select your attorney for you?
DR. SPEAKER: My insurance company appointed my attorney. I checked him out and he had an excellent reputation as a senior partner at one of the largest medical malpractice defense firms in the city. I did not have any input in this selection.
DR. SLADE: What would you have done differently in preparing for this trial?
DR. SPEAKER: I feel I was underprepared. I did not understand how the legal system in medical malpractice cases worked. In New York State, the plaintiff's attorney is not required to tell us who their expert witness is until he takes the stand. The New York State trial process also allows the plaintiff and their experts to go through any relevant literature and ask you if such and such a source is authoritative. If you say yes, then they can challenge you with everything that is in that source as if you authored it yourself. The plaintiff's attorney went through past literature on topography and keratoconus, most of which is irrelevant to today's practice.
DR. SLADE: How did you deal with your practice throughout the trial?
DR. SPEAKER: Well, everybody else in my practice was working except for me, but I was able to schedule some surgery during the trial. When the jury came back with a verdict, I was in the OR performing a corneal transplant on a one-eyed attorney. How is that for irony?
DR. SLADE: In your opinion, what were the more controversial positions the plaintiff's expert testified to in the trial?
DR. SPEAKER: This trial was a platform for Amoils to testify about his views on PRK versus LASIK, his Amoils brush which he developed, and how he helped to setup the Surgical Eyes Web site. He practices in South Africa, never practiced in the US or New York State, notwithstanding that the law says that the expert witness has to testify to the standard of care in the community. Amoils testified that there was a global standard of care, but then later testified that there was in fact no global standard of care. I do not believe he had any credentials to testify about the standard of care in our community. He had no knowledge of Krachmer, Mannis, and Holland's textbook,3 which was the best-selling textbook on cornea at that period of time, and had never heard of the AAO's home study course for Board Certification.
DR. SLADE: What kind of interaction did you have with him, if any, during the trial?
DR. SPEAKER: Amoils was very content with himself. He spent a considerable amount of time describing all of his contributions including a cryoprobe for retinopexy. During cross-examination, he testified that the cryoprobe was still used in every retinal detachment surgery performed today. When we challenged him that in the mid-1980s that endophotocoagulation replaced cryo because of the association of proliferative vitreoretinopathy with cryo, he denied that this was true.
DR. SLADE: Is he known as a plaintiff's expert?
DR. SPEAKER: He claims that this is the first time he testified in the US, but according to the doctors in South Africa, he has testified in their country. He has no academic appointments.
DR. SLADE: What other testimony did Amoils give?
DR. SPEAKER: One of the major inaccuracies in his testimony that was given repeatedly was that inferior steepening on placido topography is indicative of a bulging of the cornea. Elevation topography can do this. Amoils was intent on convincing the jury that an inferior steepening on topography was diagnostic of corneal ectasia or keratoconus, despite documentation that the patient had a normal cornea on examination, above-average pachymetry, normal retinoscopic reflex, and normal BCVA.
Amoils also testified that the standard of care in 2000 was not to perform LASIK on a low myope with 590µm pachymetry and inferior steepening on topography, and that this standard of care was established by one case report from Theo Seiler in 1998.4 Amoils' claim was that one case report changed the standard of care and made inferior steepening a contraindication. He spent a long time testifying about his own paper, a series of case reports of ectasia with incomplete information that was published in 2000.5 Amoils would not admit that the first scientific study of risk factors for ectasia was published in 2003 by Randleman et al;6 3 years after the plaintiff had his surgery. These deficiencies are important details that are totally lost on a lay jury.
Amoils also testified that the standard of care in 2000 was to obtain an Orbscan (Bausch & Lomb, Rochester, NY) preoperatively on a patient with inferior steepening. The latest ASCRS survey shows that this is still not the case because less than 40% of refractive surgeons used an Orbscan in 2004.7
Another important inaccuracy in Amoils' testimony was that the postoperative Orbscan of the patient's unaffected dominant right eye showed that the patient would develop ectasia and need a corneal transplant. Ed Holland testified that this Orbscan was normal.
DR. SLADE: What about your expert, Ed Holland?
DR. SPEAKER: I think Ed did a great job. I would not criticize anything that he said. He testified that he would have operated on this patient and that the preoperative topography was not a contraindication.
DR. SLADE: What would you do over?
DR. SPEAKER: The one thing that I think maybe I could have been done better would be how I handled the questions concerning which literature is authoritative.
DR. SLADE: This involved your testimony about the literature?
DR. SPEAKER: Yes, Amoils and the plaintiff's counsel were going through all of the old literature on keratoconus trying to prove that the plaintiff had keratoconus preoperatively, and that we should have known that because of the old literature from the days of radial keratotomy surgery. Because of the plaintiff's attorney's ability to limit our answers to “yes or no,” it was not possible for us to explain to the jury why that literature was not being used correctly to support their argument. This gave the jury the impression that we were being evasive.
DR. SLADE: Did you get to know which papers they were going to show you ahead of time?
DR. SPEAKER: No.
DR. SLADE: But some of the papers were not authoritative and you said so, and the jury did not like that?
DR. SPEAKER: Correct.
The major focus of Amoils' testimony was Rabinowitz's and McDonnell's work on topographic indices for keratoconus.8 My attorney showed Amoils the conclusion by Rabinowitz about the importance of the clinical examination in the diagnosis of keratoconus, which in this case was entirely normal. The one definitive conclusion in Rabinowitz's paper is that clinical examination is the gold standard for diagnosis, and Amoils did not agree with this.
DR. SLADE: When the jury finally left the courtroom at the end of the trial to start the deliberation process, how long were they out?
DR. SPEAKER: A day and a half.
DR. SLADE: What was your lawyer telling you at that point; was it a good sign or a bad sign that the jury was out for a day and a half?
DR. SPEAKER: The only bad sign was that they asked to review the economic data introduced at trial by the plaintiff's damages experts regarding what they claimed his damages were.
DR. SLADE: Was the plaintiff ready to settle?
DR. SPEAKER: Prior to the trial, the plaintiff offered to settle for my insurance limits, which was $2.3 million, but I said no because I thought my care of the patient was appropriate. After Holland's testimony, the judge suggested a $1.0 million settlement and I said no because I thought Amoils' testimony was weak, and my expert witness, Ed Holland, was terrific. My lawyer thought we had a 95% chance of winning the case at this point. Clearly, the jury had a different opinion than the plaintiff.
DR. SLADE: What about the settlement after the verdict?
DR. SPEAKER: The verdict occurred at the end of July. From then until the day in September when the post-trial motions were scheduled to be heard before the judge, the plaintiff showed no interest in settling and repeatedly made mention of their expectation that I would personally contribute to a settlement. I said no because I was advised that we had a strong case on appeal.
DR. SLADE: You do not have to pay the amount of the verdict until after the appeal is decided, correct?
DR. SPEAKER: You have to post a bond in order to appeal. However, the day the trial judge was scheduled to hear our post-trial motions where we were asking for either a new trial or a reduction of the verdict because it was excessive and not supported by evidence at trial, the plaintiff's lawyer called my lawyer and expressed a desire to settle for my insurance limit of $2.3 million. I think they did this because they knew that they had a weak case on appeal. They apparently decided to take the money and run.
DR. SLADE: Would you settle if you had to do it all over again?
DR. SPEAKER: Yes, I would settle within my insurance limits in this case because of the outrageous judgment. It was the best thing to do for my family, my practice, for me. I had dealt enough with the legal system and lawyers.
DR. SLADE: How has this affected your practice? Is your volume up or down? Are patients supportive, or do they not know about it?
DR. SPEAKER: I have had a lot of patients express support. There have been some patients who have asked questions about it, but seem to understand how this came about. I am not aware that I have lost any patients because of it. A lot of my patients are bankers and lawyers, they are used to this.
DR. SLADE: Has this case affected your self-confidence?
DR. SPEAKER: No. I treated this patient appropriately based on the information available in 2000, as confirmed by Ed Holland.
DR. SLADE: How has this affected the way you treat patients?
DR. SPEAKER: It has not affected the way I treat patients, but it has caused me to be more scrupulous in documentation. During my testimony at trial, the plaintiff's counsel made an issue that I did not document my preoperative examination of the patient. I testified that my routine was that if there had already been an examination on the chart that I did not document mine unless there was something remarkable. The plaintiff's lawyer asked me, “have you ever heard the expression ‘if it is not documented, it wasn't done?'”
DR. SLADE: Has it changed your surgery mix? Are you doing more PRK and less LASIK?
DR. SPEAKER: No, during the last couple of years my colleagues and I have been doing more PRK. At this time, 10% to 15% of my laser surgery is PRK
DR. SLADE: Has this affected your ability to obtain malpractice insurance? Are they still covering you or have they raised your rate?
DR. SPEAKER: It is a doctor-owned company and they have been very supportive.
DR. SLADE: Are you going to raise your malpractice limits now?
DR. SPEAKER: I don't think I can.
DR. SLADE: Do you think that refractive surgeons should have high, low, or medium malpractice limits?
DR. SPEAKER: I think my case is probably instructive in that regard, because here was a runaway verdict for $7.25 million, which ended up settling within my insurance limits. Also, the plaintiff had to consider running the risk of losing the entire case on appeal, or, as an alternative, seeing their verdict drastically reduced.
DR. SLADE: What general advice would you give colleagues facing a medical malpractice suit?
DR. SPEAKER: Assume that you know nothing about the legal system. Ask a lot more questions of your attorney and insurance company than I did. I would also recommend that if you have to go to trial that you should have a personal attorney advising you. It may also be worthwhile to have a private investigator check out plaintiffs who are making exaggerated claims. I did not do that, but probably should have.
Stephen G. Slade, MD, FACS, is in private practice in Houston. Dr. Slade may be reached at (713) 626-5544; firstname.lastname@example.org.
Mark Speaker, MD, PhD, FACS, is owner of Laser & Corneal Associates, PC, in New York City, and is Medical Director at the Manhattan TLC Laser Eye Centers. Dr. Speaker may be reached at (212) 832-2020; email@example.com.
1. Anatomy of a Lawsuit II. Cataract & Refractive Surgery Today. 2005;5;10:75-113.
2. Koch DD. The riddle of iatrogenic keratectasia. J Cataract Refract Surg. 1999;25:453-454.
3. Krachmer J, Mannis MJ, Holland EJ. Cornea: fundamentals, diagnosis and management. St. Louis: Mosby-Year Book, Inc., 1997.
4. Seiler T, Quurke AW. Iatrogenic keratectasia after LASIK in a case of forme fruste keratoconus. J Cataract Refract Surg. 1998;24:1007-1009.
5. Amoils SP, Deist MB, Gous P, Amoils PM. Iatrogenic keratectasia after laser in situ keratomileusis for less than -4.0 to -7.0 diopters of myopia. J Cataract Refract Surg. 2000;26:967-977.
6. Randleman JB, Russell B, Ward MA, et al. Risk factors and prognosis for corneal ectasia after LASIK. Ophthalmology. 2003;110:267-275.
7. Duffey R, Leaming D. US trends in refractive surgery; 2004 ASCRS study. Paper presented at: The ASCRS/ASOA Symposium and Congress; April 16, 2005; Washington, DC.
8. Rabinowitz YS, McDonnell PJ. Computer-assisted corneal topography in keratoconus. Refract Corneal Surg. 1989;5:400-408.