Opinion
Civil No. A2-95-167.
April 12, 1999.
MEMORANDUM AND ORDER
I. INTRODUCTION
This medical negligence action arises out of the care plaintiff received at an eye clinic operated inside the Quentin M. Burdick Memorial Health Facilities, a United States Public Health Services facility in Belcourt, North Dakota (hereinafter PHS). Plaintiff alleges that an optometrist in defendant's employ negligently failed to intervene in a course of events which culminated in a total retinal detachment and concomitant loss of sight in his right eye. The case was tried to the bench January 11-13, 1999, and thereafter taken under advisement.
Plaintiff originally brought this action pursuant to the Federal Tort Claims Act, Title 28, United States Code Sections 2671, et seq., and 1346(b). Days before trial was to begin, however, plaintiff agreed to dismiss all claims against the United States of America pursuant to a voluntary settlement. As a result, this court was left in the somewhat novel position of fact-finder in a state law medical negligence action featuring non-diverse parties. Hearing no objections from the parties, this court nevertheless retained jurisdiction pursuant to Title 28, United States Code Section 1367(c)(3). See Minnesota Ass'n of Nurse Anesthetists v. Unity Hosp., 5 F. Supp.2d 694, 711 (D. Minn. 1998) (citing Marshall v. Green Giant Co., 942 F.2d 539, 549 (8th Cir. 1991)).
II. BACKGROUND
Plaintiff Michael Malaterre is a 34 year old member of the Turtle Mountain Band of Chippewa. Together with his wife, Bonita, and their two children, Michael lives on the Turtle Mountain Reservation in Belcourt, North Dakota. By virtue of his membership in the Turtle Mountain Band, Michael is and has been entitled to the health care provided by PHS.
Michael began having problems in his right eye in early March of 1992. While driving at night, Michael, then 28 years old, would see "halos" consisting of six or seven colors encircling oncoming headlights. Michael also noticed some accompanying soreness and redness in his eye. Michael had no eye problems prior to experiencing these symptoms, and it had been some ten years since his last eye examination. Michael telephoned PHS and purportedly related his symptoms to what proved to be a clinic volunteer. The volunteer arranged an appointment for Michael at the eye clinic on March 12, 1992.
At that time the "eye clinic" consisted of a makeshift examination area located in a single room in the basement of PHS. PHS provided the eye clinic in conjunction with Dr. William Lee, a Minot ophthalmologist and principal of defendant Minot Eye, Ear, Nose and Throat Clinic, P.C. (MEENT). Under the arrangement, an optometrist in MEENT's employ traveled to Belcourt every Thursday to perform eye examinations and refractions. Dr. Lee would visit once a month to perform surgery and other ophthalmological services. MEENT supplied most of the clinic's equipment, including a slit lamp microscope and ophthalmoscope to perform internal eye examinations.
PHS, in turn, provided community health volunteers to maintain records and set up appointments for the eye clinic. When performing the latter duty, these volunteers were instructed to screen patients according to their complaints. Patients seeking an appointment for any type of eye problem were to be referred to a physician or nurse practitioner. Only patients who sought routine refractions or perhaps adjustments to their glasses were to be allowed an appointment at the eye clinic in the first instance.
The physician or nurse practitioner would then refer patients to the eye clinic when warranted.
Michael, however, was referred directly to the eye clinic on March 12 for an appointment with Dr. H. William Wassink, an optometrist in MEENT's employ. Michael's medical negligence claim is based upon the events which occurred, or did not occur, during this examination. According to Michael's account, before the examination began he told Dr. Wassink that he was seeing halos when he met oncoming headlights. Dr. Wassink did not respond. Instead, after conducting a brief examination, Dr. Wassink told Michael he was nearsighted and directed him to try on a pair of glasses. When Michael told Dr. Wassink that the glasses neither alleviated his symptoms nor improved his vision, Dr. Wassink replied "[t]hat's what you need," and turned and walked away.
Though unable to independently recall the examination at trial, Dr. Wassink disputed Michael's account. According to his own testimony and that of Dr. Lee, Dr. Wassink was under strict orders to refer any patient complaining of or exhibiting symptoms to Dr. Lee. Consequently, Dr. Wassink maintained that he would have immediately referred Michael had he complained of halos or blurred vision. Dr. Wassink conceded, however, and his examination notes confirm, that Michael complained that his right eye was "always worse" than his left. See Pl.'s Ex. 2. Dr. Wassink also denied ordering Michael to try on a pair of glasses.
From a review of his scant examination notes, Dr. Wassink deduced that he performed a prism cover test for distance, a retinoscopy to determine whether Michael's central vision was clear and functioning, tonomotry to measure the pressure inside Michael's eyes, and a refraction. Dr. Wassink also deduced that he examined Michael's eyes with a direct ophthalmoscope, which affords a narrow view of the eye's interior, including the optic nerve and central portion of the retina or macula, through an undilated eye.
Dr. Wassink concluded that he found Michael's eye pressure normal, and found no abnormalities with the direct ophthalmoscope. Dr. Wassink also found that the best corrected vision in Michael's right eye was roughly 20/30. The vision in Michael's left eye was normal. Dr. Wassink ultimately prescribed glasses with a strong correction in the right eye and none in the left.
Dr. Wassink did not check Michael's uncorrected visual acuity. Nor did Dr. Wassink take a history from Michael, relying instead upon a clinic volunteer's notations on the top of Michael's chart indicating that Michael merely sought a routine refraction and reported no health problems. Dr. Wassink also did not examine Michael's eye with an indirect ophthalmoscope, which affords a wide, three-dimensional view of the eye's interior, including the retina, through a dilated eye. Dr. Wassink was not certified to administer the drugs necessary to dilate eyes, nor trained in the use of an indirect ophthalmoscope. Though trained in the use of a slit lamp, which affords a view of the front of the eye or the back of the eye in conjunction with other lenses, Dr. Wassink chose not to examine Michael's eye with this device either.
From Michael's best corrected visual acuity of 20/30, Dr. Wassink extrapolated at trial that the uncorrected visual acuity in Michael's right eye on March 12, 1992 was 20/200 to 20/300, below the level of legal blindness. Dr. Wassink opined that this diminished visual acuity, coupled with Michael's complaint that his right eye was "always worse" than his left, indicated that Michael suffered from amblyopia, or "lazy eye." However, Dr. Wassink did not record this diagnosis nor inform Michael that he suffered from this condition. Instead, Dr. Wassink indicated in his notes that Michael's eyes "seemed normal," purportedly because he detected no abnormalities with the direct ophthalmoscope. Dr. Wassink also chose not to record a treatment plan and forgot to sign his examination notes.
Michael never purchased Dr. Wassink's prescription, and his eye problems continued into the summer. Michael claimed that he returned to PHS specifically to have his eye reexamined in June or July of 1992. However, Michael remembered little about this visit, and was unable to locate any record of it at PHS.
Michael returned to PHS on September 15, 1992, this time with the flu. Michael was examined by Dixie Bluestone, a physician's assistant employed by PHS. Though Michael maintained that he reported his symptoms to Ms. Bluestone, she did not record any such complaints in her examination notes. Ms. Bluestone found, however, that Michael suffered from conjunctivitis in both eyes. Ms. Bluestone prescribed eye drops for this condition.
Michael returned to PHS with the flu on December 26, 1992. This time Michael was examined by Dr. Moshos, a contract physician. Michael once again maintained that he reported his symptoms to Dr. Moshos. However, Dr. Moshos also did not record any such complaints.
On January 14, 1993, Michael awoke to find the vision in his right eye completely blurred. Michael returned to PHS that day and saw a physician, Dr. Richard Larson. According to Dr. Larson's examination notes, Michael reported that he had experienced halos, redness and blurred vision in his right eye for approximately one year. Michael also reported pain, a "7 or 8" on a scale of 1-10. Michael told Dr. Larson that he had been given antibiotics to alleviate these symptoms, to no effect. Dr. Larson noted that Michael's right eye appeared red. After a brief examination, Dr. Larson concluded that Michael's eye was in serious, urgent condition, and immediately called Dr. Lee to arrange an appointment for the following day.
Dr. Larson examined the interior of Michael's eye with a direct ophthalmoscope, and measured the pressure inside Michael's eye with a tonometer. The pressure was within normal limits.
Michael drove to Minot, North Dakota, to see Dr. Lee on January 15, 1993. According to Dr. Lee's examination notes, Michael reported experiencing blurred vision, redness, and pain in his right eye throughout the prior year. Michael also reported that the pain had increased during the week prior to seeing Dr. Lee. Dr. Lee examined Michael's eye and found that his retina was completely detached, including the macula. Dr. Lee also found extensive inflammation and adhesions in the back of Michael's eye. Dr. Lee referred Michael to Dr. Max Johnson, an ophthalmologist and retinal surgeon in Fargo, North Dakota, for surgery to reattach the retina.
Michael drove to Fargo and saw Dr. Johnson on January 18, 1993. According to Dr. Johnson's notes, Michael reported a slow decrease in vision during the several months prior to January 18. Dr. Johnson found the visual acuity in Michael's right eye to be worse than 20/400. An internal eye examination confirmed that Michael's retina was totally detached, including the macula. Dr. Johnson also found that Michael's optic nerve was pale and not functioning. As a result, Dr. Johnson saw a poor prognosis for improved vision following reattachment.
Dr. Johnson successfully reattached Michael's retina on February 2, 1993, utilizing the scleral buckling procedure. During the procedure, Dr. Johnson found two small retinal tears, through which clear fluid from the vitreous had accumulated underneath Michael's retina. Dr. Johnson also found subretinal folds or adhesions underneath and to the side of the retina, indicating that the detachment had been present long enough to allow the retina to scar. Michael's visual acuity remained unchanged following the surgery. At trial, Michael reported experiencing extreme pain during the surgery and for several weeks thereafter.
Scleral buckling surgery reattaches the retina by fastening a band around the eye behind the ocular muscles and "cinching" the retina back into place.
According to Dr. Johnson, the surgery was successful in that the eye itself was saved. Dr. Johnson testified that "long-standing" detachments such as Michael's can result in blindness and severe pain, necessitating removal of the eye.
During a follow-up examination on March 23, 1993, Dr. Johnson discovered that Michael's detachment had recurred. Dr. Johnson referred Michael to Dr. Edwin Ryan, a vitreo retinal surgeon in Minneapolis, Minnesota, for surgery to reattach the retina. Dr. Ryan reattached Michael's retina utilizing a gas bubble procedure on April 1, 1993. During this procedure, Dr. Ryan also found adhesions underneath Michael's retina. Dr. Ryan was forced to remove the lens of Michael's eye to remove these adhesions and properly reattach the retina. Once again, Michael's vision did not improve following the surgery. However, Michael testified that this procedure alleviated the pain he had experienced following the first surgery.
During this procedure, fluid is drained from underneath the retina, and an air bubble is injected into the eye to replace the retina in its proper position. The retina is then treated with lasers to hold it in position and allow the eye to heal.
After the surgery, Dr. Ryan told Michael that he could have regained 90% of his vision had the detachment been detected sooner. Since Michael's detachment was so advanced, however, Dr. Ryan believed he would be fortunate to regain 10% of his peripheral vision. Suspecting that someone had made a mistake in treating his eye, Michael contacted Robert J. Labine, an attorney from Grand Forks, North Dakota, on May 1, 1993. On May 10, 1993, Mr. Labine requested medical records from PHS to investigate Michael's claim. However, Mr. Labine declined to represent Michael when PHS was unable to locate any record of his March 12, 1992, appointment with Dr. Wassink. In April of 1994, Michael approached his current attorney, Ms. Shirley Dvorak. At her direction, Michael personally went to PHS to search for the March 12 record. On April 25, 1994, Michael finally found Dr. Wassink's unsigned examination notes with the help of PHS staff. Michael subsequently brought this action on November 15, 1995.
III. ANALYSIS
A. STATUTE OF LIMITATIONS
As an initial matter, defendant argues that Michael's complaint is barred by the statute of limitations contained in Section 28-01-18(3) of the North Dakota Century Code. Defendant contends that Michael knew he had a malpractice claim in April of 1993, when Michael was informed by Dr. Ryan that most of his vision could have been saved had the detachment been detected sooner; or alternatively in May of 1993, when Michael hired an attorney to investigate a possible claim.
Under Section 28-01-18(3), an action for medical malpractice must take place within two years of the discovery of the malpractice.See N.D. Cent. Code § 28-01-18(3). This period commences "when the plaintiff knows, or with reasonable diligence should know, of (1) the injury, (2) it's cause, and (3) the defendant's possible negligence." Zettel v. Licht, 518 N.W.2d 214, 215 (N.D. 1994);Wheeler v. Schmid Lab., Inc., 451 N.W.2d 133, 137 (N.D. 1990). The plaintiff's knowledge is a question of fact, to be measured by "an objective standard which focuses upon whether the plaintiff has been apprised of facts which would place a reasonable person on notice that a potential claim exists." Zettel, 518 N.W.2d at 215; Wheeler, 451 N.W.2d at 137.
Defendant correctly points out that as early as April of 1993, Michael questioned the quality of the care he received during the period leading to his retinal detachment. Nevertheless, it is equally clear that Michael's subjective suspicions could not have become knowledge sufficient trigger the limitations period until on or about April 25, 1994, the day Michael located his examination record. Until that time, Michael was ignorant of the possible cause of his injury as well as the defendant's possible negligence. Furthermore, Michael was reasonably diligent in attempting to obtain his records, and bore no responsibility for the delay in their discovery. Accordingly, for purposes of the limitations period contained in Section 28-01-18(3), this court finds that Michael's cause of action accrued on or about April 25, 1994, the day he obtained the record of his March 12, 1992, appointment with Dr. Wassink. Consequently, Michael timely filed his complaint on November 15, 1995.
In fact, the record reflects that Michael was unable to discover Dr. Wassink's identity until September of 1996.
B. CREDIBILITY OF WITNESSES
In a case tried to the bench, the court must resolve conflicts in testimony by, among other things, appraising the credibility of witnesses. Petty v. United States, 740 F.2d 1428, 1433 (8th Cir. 1984). See Fed.R.Civ.P. 52(a). This function is especially critical in this case, for as defendant points out, Michael's claim hinges upon his credibility. More precisely, Michael's claim hinges upon whether this court accepts his account of the March 12, 1992, examination, or that of Dr. Wassink.
Defendant argues that the lack of documentation of Michael's complaints by Ms. Bluestone and Dr. Moshos, coupled with the lack of substantiation of Michael's other visit to PHS during the summer of 1992, support Dr. Wassink's claim that Michael in fact did not report symptoms to him on March 12, 1992. Plaintiff responds that Michael's account of the March 12 examination was corroborated by Bonita Malaterre, and that Ms. Bluestone and Dr. Moshos understandably failed to record Michael's symptoms, given that the primary purpose for both examinations was the flu.
The aforementioned lack of documentation is somewhat troubling. However, these omissions are counterbalanced by the testimony and examination notes of Dr. Larson, Dr. Lee, Dr. Johnson and Dr. Ryan, reflecting that Michael consistently related the nature and duration of his symptoms. Significantly, Dr. Ryan concluded that Michael's complaints were "perfectly consistent" with his medical findings. Moreover, Dr. Wassink admitted, and his examination notes confirm, that Michael in fact reported symptoms on March 12 when he complained that his right eye was "always worse" than his left. Finally, Dr. Wassink was unable to provide any independent recollection or meaningful documentation at trial to support his version of events.
As previously mentioned, rather than recording a patient history, Dr. Wassink relied upon a clinic volunteer's indication that Michael merely sought a routine refraction and reported no health problems. Dr. Wassink maintained at trial that this notation supported his contention that Michael did not report symptoms on March 12, 1992. However, according to the testimony of Betty Poitra, the clinic volunteer who registered Michael that day, patients were generally not asked the reason for their visit upon arrival at the clinic. (Indeed, Ms. Poitra could not recall asking Michael why he came to the eye clinic on March 12.) Rather, such information was generally gathered over the phone, via the aforementioned screening process.
Based upon this evidence as well as the entire record, including the testimony and demeanor of the witnesses at trial, this court finds Michael to be a credible witness, and accepts his claim that he reported experiencing halos around headlights, blurred vision, and a generally inferior condition in his right eye on March 12, 1992. Thus, this court will consider Michael's medical negligence claim in the context of a patient reporting such symptoms.
C. PLAINTIFF'S MEDICAL NEGLIGENCE CLAIM
Plaintiff claims that Dr. Wassink breached the standard of care required of a North Dakota optometrist in 1992 by negligently failing to intervene in the course of events which led to a retinal detachment. Specifically, plaintiff claims that Dr. Wassink breached the standard of care by failing to conduct a complete eye examination, or refer Michael to someone who could, thereby preventing the discovery of the condition which led to Michael's retinal detachment.
North Dakota courts test the liability of an optometrist for medical negligence by standards analogous to those applied to physicians and surgeons. Heimer v. Privratsky, 434 N.W.2d 357, 360 (N.D. 1989). Accordingly, to establish a medical negligence claim against an optometrist under North Dakota law, a plaintiff must prove by the greater weight of the evidence (1) the standard of care applicable at the time of the incident in question, (2) a violation of that standard, (3) injury or damage, and (4) a causal connection between the violation and the injury. Id. at 359 (citing Winkjer v. Herr, 277 N.W.2d 579, 583 (N.D. 1979)). See Larsen v. Zarrett, 498 N.W.2d 191, 192 (N.D. 1993). As in cases featuring physicians and surgeons, these elements must be established by expert testimony. Heimer, 434 N.W.2d at 360 (citingWinkjer, 277 N.W.2d at 585). See Larsen, 498 N.W.2d at 192.
1. Standard of Care and Breach
In performing professional services, an optometrist in 1992 was required to exercise the reasonable care, diligence and skill ordinarily possessed and exercised by, and expected of, optometrists in the same general line of practice. Heimer, 434 N.W.2d at 360. See Winkjer, 277 N.W.2d at 583 n. 1. Thus, this court must determine whether Dr. Wassink exercised the care and skill normally exercised by optometrists in 1992 during his March 12 examination of Michael. See Heimer, 434 N.W.2d at 360. To that end, this court heard the following evidence:
Dr. Jeffrey Yunker, an optometrist from Grand Forks, North Dakota, testified as an expert on behalf of the plaintiff. Dr. Yunker believed that Dr. Wassink acted below the standard of care for an optometrist during the March 12 examination. Dr. Yunker criticized Dr. Wassink's failure to take Michael's history; failure to check Michael's uncorrected visual acuity; failure to perform a slit lamp examination; and failure to record a diagnosis or treatment plan. Dr. Yunker also stated that colored halos around headlights are a hallmark symptom of angle-closure glaucoma, and warrant a dilated eye examination with an indirect ophthalmoscope. Since Dr. Wassink was not certified to dilate eyes nor trained in the use of the device, Dr. Yunker stated the standard of practice in 1992 required him to refer Michael to a qualified professional. On cross-examination, however, Dr. Yunker conceded that Michael's eye pressure on March 12 did not indicate the presence of glaucoma, and that angle closure glaucoma is usually accompanied by headaches, nausea, vomiting, and severe eye pain.
Dr. Yunker stated that an initial eye examination should always include a detailed patient history; a review of a patient's systems and medications; a test of visual acuity, both with and without correction; an eye muscle balance test to ascertain whether the patient is binocular or amblyopic; a confrontational visual field test to check peripheral vision; a retinoscopy; a slit lamp examination; an internal examination with either a direct or indirect ophthalmoscope; and tonomotry. Dr. Yunker added that all patients should be examined with an indirect ophthalmoscope once every five years. Dr. Yunker stated that an optometrist that is not certified to dilate eyes could perform all of the aforementioned examinations, save for an indirect ophthalmoscopy.
Counsel for defendant repeatedly objected to Dr. Yunker's testimony concerning the presence of angle-closure glaucoma. Although Dr. Yunker was allowed to expound this theory, his testimony did not enter this court's deliberation on the issue of causation. Rather, this testimony was considered only as it related to the standard of care for a practicing optometrist in 1992 and whether Dr. Wassink breached that standard.
Dr. Yunker also criticized Dr. Wassink's decision to prescribe glasses, given Michael's best corrected vision of 20/30. On cross examination, Dr. Yunker conceded that the disparity in Michael's visual acuities may have indicated amblyopia, a condition which in and of itself would not have warranted referral. However, Dr. Yunker maintained that Dr. Wassink should have performed a complete examination to ensure that this diagnosis was correct.
From his corrected vision of 20/30, Dr. Yunker extrapolated that Michael's uncorrected visual acuity was roughly 20/400 on March 12.
Dr. Jonathan Talamo, an ophthalmologist from Boston, Massachusetts, also testified as an expert on behalf of the plaintiff, and also found Dr. Wassink's March 12 examination below the standard of care. Dr. Talamo stated that colored halos around headlights and blurred vision can indicate a variety of conditions, including cataracts, swelling of the cornea, glaucoma, inflammatory debris, or a retinal or optic nerve problem. Consequently, Dr. Wassink should have attempted to explain these complaints through a more detailed history, a slit lamp examination, and an examination with an indirect ophthalmoscope. If Dr. Wassink was unable to perform any of these examinations, Dr. Talamo stated that he should have referred Michael to someone who could. Dr. Talamo could not understand how Dr. Wassink concluded that Michael's eyes "seemed normal," given that the best corrected visual acuity in his right eye was 20/30.
Dr. Talamo was very critical of Dr. Wassink's documentation. Dr. Talamo found that Dr. Wassink's examination notes reflected no examination at all; rather, it appeared as if an optician merely performed a refraction.
Indeed, Dr. Talamo would have found Dr. Wassink's examination below the standard of care even if Michael had not reported symptoms. Dr. Talamo stated that a comprehensive ophthalmic evaluation should always include a measurement of uncorrected as well as corrected visual acuity, a slit-lamp examination, and a dilated eye examination with an indirect ophthalmoscope. Dr. Talamo found these examinations particularly warranted in Michael's case, given that he had not had a recent eye examination.
Dr. Talamo also opined that Dr. Wassink simply assumed that Michael suffered from amblyopia without documenting this diagnosis or investigating further.
Dr. Johnson stated that blurred vision and redness generally accompany inflammation in the front of the eye, and colored halos around bright lights can indicate a variety of conditions, such as cataracts, swelling of the cornea, glaucoma, or any malady in the front of the eye that may be accompanied by swelling or fluid. Dr. Johnson added that the eye must be fully dilated to examine the entire retina. Dr. Ryan stated that colored halos around headlights can also indicate a chronic, slowly progressive retinal detachment with accompanying inflammation.
Finally, Dr. Lee conceded that Dr. Wassink should have immediately referred Michael if he reported symptoms. Dr. Lee also stated that Dr. Wassink was qualified to use a slit lamp whenever warranted.
Dr. Lee was also indirectly critical of Dr. Wassink's documentation. Dr. Lee stated that he was unable to discern from Dr. Wassink's examination notes the contents of the examination nor whether it was sufficient.
The foregoing testimony clearly establishes that Dr. Wassink's March 12, 1992 examination of Michael was substandard. The standard of care in 1992 for an optometrist faced with a patient featuring Michael's symptoms required a complete examination, including a slit lamp examination and a dilated eye examination with an indirect ophthalmoscope. Since Dr. Wassink was not certified to dilate eyes nor trained in the use of an indirect ophthalmoscope, the standard of care required him to refer Michael to a qualified professional. The standard of care also required a thorough history, diagnosis, and treatment plan. Dr. Wassink inexplicably failed to take any of these measures. This failure is not excused by Dr. Wassink's post hoc diagnosis of amblyopia. If indeed that was Dr. Wassink's suspicion on March 12, 1992, the standard of care required him to confirm this suspicion by performing a complete eye examination. Accordingly, this court finds that Dr. Wassink clearly acted below the standard of care required of an optometrist in 1992 during his March 12 examination of Michael.
2. Causation
Before an optometrist can be held responsible for medical negligence, his negligence must have been a proximate cause of the injury. See Heimer, 434 N.W.2d at 360. A proximate cause is that cause which, as a natural and continuous sequence, unbroken by any controlling intervening cause, produces the injury, and without which it would not have occurred. Rued Ins., Inc. v. Blackburn, Nickels Smith, Inc., 543 N.W.2d 770, 773 (N.D. 1996) (citations omitted). One's conduct need not be the last or sole cause of an injury to be its proximate cause. Id. at 774. Rather, the negligence or other wrongful conduct of two or more persons may contribute concurrently as proximate causes, as long as the injury was the natural and probable result of the conduct and reasonably foreseeable as such. Id.; Jones v. Ahlberg, 489 N.W.2d 576, 582-83 (N.D. 1992).
Defendant argues that this court must make a factual determination as to the mechanism of Michael's retinal detachment in order to establish causation. Defendant maintains that the medical testimony establishes that Michael's retinal detachment likely occurred in September or October of 1992, as opposed to March of 1992. Consequently, defendant argues that plaintiff cannot establish causation, since any conclusion as to the presence of any other condition in Michael's eye in March of 1992 would be speculative.
Plaintiff, on the other hand, claims that the medical evidence demonstrates that Michael was suffering from a retinal detachment or a medical condition precedent to a detachment on March 12, 1992, and Dr. Wassink's failure to perform a complete eye examination or refer Michael to someone who could prevented diagnosis of this condition. Plaintiff maintains that Dr. Wassink's own negligence prevents this court from ascertaining the condition of Michael's eye on March 12, and defendant should not be allowed to use this negligence to escape liability.
By framing the causation requirement in the manner it has, defendant no doubt seeks to take advantage of two facts which emerged from trial. First, none of the experts could pinpoint the precise date Michael's detachment began. Second, any opinion as to what may have been found had Dr. Wassink conducted a complete eye examination, including a slit lamp examination and a dilated eye examination with an indirect ophthalmoscope, would be speculative.
Indeed, the only certain conclusion was that Michael's retina could not have been completely detached on March 12, 1992, since Dr. Wassink was able to correct his vision to 20/30. Notwithstanding Dr. Lee's opinion, the vast majority of testimony also indicated that Michael's macula probably detached on January 14, 1993, given his sudden decrease in vision that day.
However, this court is not of the view that plaintiff must prove by a preponderance of the evidence that Michael had a retinal detachment on March 12, 1992, in order to establish causation. Rather, this court finds that the issue for purposes of causation is whether Dr. Wassink's failure to adhere to the standard of care contributed to Michael's retinal detachment. See Rued Ins., 543 N.W.2d at 774. In other words, whether Dr. Wassink's failure to conduct a complete eye examination, or refer Michael to someone who could, contributed to the delay in discovering Michael's retinal detachment until it was too late to save the vision in his eye. See id.; see generally Fairchild v. Brian, 354 So.2d 675, 679-80 (La.Ct.App. 1978) (addressing the same causation issue in an eerily similar case). To that end, this court heard the following evidence:
As previously mentioned, Dr. Johnson stated that blurred vision and redness generally accompany inflammation in the front portion of the eye, and that colored halos around bright lights can indicate a variety of conditions, such as cataracts, swelling of the cornea, glaucoma, or any malady in the front of the eye that may be accompanied by swelling or fluid. Dr. Johnson testified that neither retinal tears nor detachments are generally accompanied by such symptoms. Rather, the hallmark symptoms of a retinal tear generally include a sudden increase in dark "floaters" and flashes in the field of vision. Retinal detachments are generally visually asymptomatic until the detachment reaches the macula. Once that portion of the retina begins to detach, a patient experiences a shadow or curtain-like loss of vision, culminating in a sudden and dramatic blur.
Dr. Johnson surmised that the process which led to Michael's retinal detachment began when inflammation in Michael's eye caused his pupil to bound down and interfere with the flow of fluid throughout the eye. In addition, the inflammation caused the vitreous to become inflamed and caused adhesions or scar tissue. These adhesions subsequently contracted and pulled on the periphery of Michael's retina, creating two small retinal tears, through which fluid from the vitreous cavity flowed and popped the retina loose.
Dr. Johnson opined that Michael's detachment occurred within the six weeks prior to his January 18, 1993, examination. Dr. Johnson also placed the tears which led to the detachment within that period, given his discovery of clear fluid underneath Michael's retina during surgery. According to Dr. Johnson, this fluid would have been thick, oily and yellowish if it had been present for several months or longer. Dr. Johnson added that he saw no demarcation lines, or pigmentation changes underneath the retina, which accompany detachments that are several months old. Dr. Johnson conceded, however, that the inflammation which led to the detachment would necessarily have presented itself much earlier.
Dr. Johnson initially characterized Michael's detachment as "long-standing" in light of the existence and extent of the adhesions in Michael's eye. Dr. Johnson noted that such adhesions generally take "at least six weeks" to form. On cross-examination, however, Dr. Johnson stated that "long-standing" generally means in the range of four to six weeks.
While allowing that Michael did not exhibit symptoms of a sudden detachment, Dr. Ryan stated that colored halos around oncoming headlights and redness can indicate a chronic, slowly progressive detachment with accompanying inflammation. Dr. Ryan opined that Michael developed just such a detachment by virtue of some trauma in his past which caused a retinal tear. Pursuant to this detachment, Dr. Ryan surmised that Michael developed glaucoma which, coupled with inflammation, led to a red eye. Dr. Ryan based his finding of glaucoma on the fact that Michael's eye pressure was abnormally high in April of 1993, whereas the pressure in an eye featuring a recently detached retina is usually low.
Dr. Ryan concluded that his findings coupled with Michael's symptoms indicated a detachment that had been present for several months. Dr. Ryan stated that the subretinal scar tissue he and Dr. Johnson found indicated that some part of Michael's retina had been detached for at least six months. Dr. Ryan also found changes in Michael's optic nerve that could not have occurred over a short period of time. Significantly, Dr. Ryan concluded that the nature and duration of Michael's complaints were "perfectly consistent" with his medical findings.
Since Dr. Ryan could not recall whether he witnessed any scar tissue under the macula, he could not estimate how long that portion of Michael's retina had been detached. Dr. Ryan stated that the periphery of Michael's retina could have been detached for some time, with the macular detachment occurring more recently.
As previously mentioned, Dr. Talamo stated that colored halos around lights and blurred vision could come from early cataract, inflammatory debris in the eye, or a retinal or optic nerve problem. Dr. Talamo also noted that a chronic retinal detachment with accompanying inflammation can feature secondary redness. Like Dr. Ryan, Dr. Talamo concluded that the inflammation in Michael's eye indicated that his detachment was present for many months prior to January 18, 1993.
Dr. Talamo is not a retinal specialist. Rather, he specializes in corneal and refractive surgery. Dr. Talamo based his testimony upon a review of Michael's medical records.
Dr. Lee did not believe that Michael suffered from a retinal detachment and/or inflammation on March 12, 1992. Rather, Dr. Lee opined that Michael's detachment occurred in the summer or early fall of 1992, and inflammation and glaucoma followed. Dr. Lee believed that Michael's retina was totally detached prior to the time he saw Dr. Larson on January 14, 1993, and attributed Michael's vision loss on that date to a sudden onset of inflammation. Dr. Lee surmised that Michael had unwittingly experienced poor vision and redness in his eye for some time prior to that date.
All of the experts testified that it is critical to intervene before a detachment spreads onto the macula in order to prevent the loss of central vision.
Based upon the foregoing testimony, this court concludes that Dr. Wassink's failure to conduct a complete eye examination, or refer Michael to someone who could, contributed to the delay in discovering Michael's retinal detachment. While mindful of Dr. Johnson's opinions, this court finds that the majority of the testimony supports the view that Michael's retinal detachment was long-standing; i.e., present for several months prior to being discovered by Dr. Lee on January 15, 1993. Furthermore, it is clear from all the testimony that Michael's symptoms on March 12, 1992, indicated the presence of one of many serious conditions which could have triggered the chain of events culminating in Michael's loss of vision, including: (1) inflammation in the front of the eye; (2) cataracts; (3) swelling of the cornea; (4) glaucoma; (5) a chronic, slowly progressive retinal detachment with accompanying inflammation; (6) inflammatory debris; (7) a retinal or optic nerve problem; or (8) any other malady accompanied by swelling or fluid. A complete eye examination on March 12, 1992 would more likely than not have revealed one of these conditions in a treatable stage. Accordingly, this court finds that Dr. Wassink's breach of the standard of care proximately caused Michael's retinal detachment and concomitant loss of sight; Dr. Wassink's failure to conduct a complete examination, or refer Michael to a professional who could, contributed to the delay in discovering Michael's condition until it was too late to save the vision in his eye.
3. Comparative Fault
Having found that Dr. Wassink breached the standard of care and that this breach proximately caused Michael's injuries, this court must apply the comparative fault scheme contained in Section 32-03.2-02 of the North Dakota Century Code. This court has made specific findings concerning the percentage of fault attributable to plaintiff and defendant. Based upon the evidence presented at trial, this court finds that defendant, through Dr. Wassink, bears the largest percentage of the fault in this case.
Nevertheless, defendant correctly points out that Michael also bears some responsibility for the delay in discovering his retinal detachment. Michael did not act as a reasonably prudent person would have, given the circumstances. He admittedly dismissed his symptoms as job-related eye strain while the condition of his eye presumably deteriorated during the months prior to January of 1993. The resulting delay in seeking treatment was a partial cause of his damages. The remaining fault is attributed to the United States of America and/or all other parties who contributed to Michael's injuries. Accordingly, this court attributes all the fault which caused Michael's damages as follows:
Defendant MEENT: 40%
Michael Malaterre: 30%
United States of America, et al.: 30%
Total: 100%
4. Damages
This court heard testimony regarding the noneconomic damages resulting from Michael's retinal detachment. Of course, Michael has suffered a permanent loss of vision in his right eye. The detachment has also spawned glaucoma, as well as continuous pain. Michael will be forced to monitor these conditions through examinations and medication for the rest of his life. Michael lives in fear of losing his eye.
Save for some minor out of pocket expenses associated with Michael's surgeries, plaintiff did not request economic damages.
In addition, Michael's left eye has become very sensitive to light since he lost the vision in his right, making it hard for Michael to read and forcing he and his family to keep their home dark. While Michael continues to operate his drywalling business on the side, he can no longer perform many aspects of that type of work. On the positive side, Michael's loss of vision has not prevented him from obtaining a fine job with the Turtle Mountain Housing Authority.
Based upon these factors, as well as the entire record, this court finds that Michael has suffered compensable damages as follows:
Out of pocket expenses: $ 1,950.25
Past and future pain and suffering: $350,000.00
Permanent impairment: $350,000.00
Total: $701,950.25
The court has applied the rule that future damages should be discounted to present value in arriving at this calculation. Pursuant to the aforementioned comparative fault scheme, this amount will be reduced by 60 percent, bringing the total damage award to $280,780.00, together with costs, without prejudgment interest and with postjudgment interest accruing at the legal rate. Judgment will be entered reflecting this Order.
IT IS SO ORDERED.
RODNEY S. WEBB, CHIEF JUDGE UNITED STATES DISTRICT COURT