Confidential
Settlement – $224,999Mediator
Court
L.A. Superior Long Beach
Attorneys
Plaintiff
Defendant
Jack M. Schuler
(Schuler & Brown)
Experts
Plaintiff
John D. Hofbauer
(medical)
Marianne Inouye MBA
(technical)
Facts
Plaintiff was a 36-year-old procurement specialist for an aerospace company with insulin dependent diabetes, and a history of recurrent viral infections of the left eye with herpes simplex. These infections responded over the years to antiviral antibiotics. On March 3, 1995, she noted pain in the left eye and began self-treatment. When the pain worsened, and became worse than any pain she had ever had in her eye before, and was accompanied by photophobia, severe redness, and the appearance of a spot, or membrane over part of the left eye, she sought out her primary ophthalmologist on a Saturday morning. Her ophthalmologist failed to answer multiple pages, and when the symptoms worsened, plaintiff went to defendant urgent care center. There, the ER doctor determined the problem required ophthalmology consultation, and he called the ophthalmologist on call. The ophthalmologist on call was a second year ophthalmology resident, little more than half way through his three year residency requirement. He examined plaintiff and decided that she had another viral infection and began antiviral antibiotics. Despite the worst pain, redness, and photophobia she had ever had, and despite the exudate of the cornea, he did not consider the possibility of bacterial superinfection. He obtained no gram stain or culture, and sent plaintiff home without consulting with any attending physician, because the attending physician on call did not answer her page. He instructed plaintiff to make an appointment for two days later to see an ophthalmologist in office. He also told plaintiff he wanted to find out she was doing on Sunday. Plaintiff was given Vicodin for pain, which diminised the eye pain overnight. On Sunday, the next day, the defendant ophthalmology resident got in touch with an attending physician, and the two agreed that if only if the resident personally examined plaintiff and determined that her infection was resolving, he could continue antiviral antibiotics. If not, antibacterial antibiotics were to be started, because bacterial infections, if untreated, could scar the corner and cause blindness within 48 hours. The defendant claimed that plaintiff did not want to be seen on Sunday, since she already had an appointment with an attending on Monday. The plaintiff claimed that defendant physician told her that it was safe for her to put off being seen until Monday as long as the pain was less. The defendant resident conceded that at the end of the phone call, he had not informed plaintiff that her infection could be bacterial, that a bacterial infection could rapidly caused blindness, or that he felt it was essential that he examine her. Resident never called his attending back to inform him that plaintiff was not going to be examined on Sunday. Attending signed a declaration stating that he expected a call back if for any reason plaintiff was not be examined Sunday, and that in that event it was mandatory for antibacterial treatment to be started immediately. On Monday, by the time plaintiff was seen in office by the attending physician, her left eye was totally covered by scarring exudate. She has remained blind in that eye with a cornea completely scarred over, and so deformed in appearance that her young daughter ran away from her for months whenever her eye was uncovered. The eye infection proved at culture to be a bacterial infection, treatable with Penicillin. The infection was obliterated, but not until irreversible scarring and blindness had occurred. The plaintiff continued to work at her job in the defense industry, but may lose it because of industry changes. She has about a 50/50 chance of getting central vision restored with a corneal transplant, but this will not alter the grotesque appearance of the left eye. Tinted contact lenses have not proven useful because of allergic reactions to the lenses. The plaintiff did have 20/200 vision in the left eye, but with correction used the left eye fully and competently at work.
Damages
The plaintiff claimed $250,000 in general damages. Plaintiff's husband claimed damages for loss of consortium.
Injuries
The plaintiff suffered bacterial infection of the left eye, resulting in complete scarring of the left cornea, deformity and blindness of the left eye.
Other Information
The settlement was reached approximately two years and five months after the case was filed. The attending physician who failed to answer his pages settled out for $29,999. Per plaintiff, she offered to settle with the remaining defendant for $225,000. About a month before trial, at a voluntary settlement conference mediated by Edgar Simon, Esq., the remaining defendant settled for $195,000, for a total of $224,999.
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