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Dickson v. Kriger

Court of Appeals of Tennessee, Jackson

December 30, 2014

LEON DICKSON, SR.
v.
SIDNEY H. KRIGER, M.D.

Session July 22, 2014

Appeal from the Circuit Court for Shelby County No. CT-005591-04 James F. Russell, Judge

Robert L. Green and Darryl D. Gresham, Memphis, Tennessee, for the appellant, Leon Dickson, Sr.

Karen S. Koplon and Hugh Francis, Memphis, Tennessee, for the appellee, Sidney H. Kriger, M.D.

W. Neal McBrayer, J., delivered the opinion of the Court, in which J. Steven Stafford, J., and Kenny W. Armstrong, Sp. J., joined.

OPINION

W. Neal McBrayer, Judge

I. Factual and Procedural Background

Leon Dickson, Sr. had experienced poor vision since childhood and decided to inquire about laser corrective eye surgery, also known as LASIK[1] surgery, in 2003. Mr. Dickson hoped LASIK surgery would make his life easier by removing the need for glasses and the irritation from contact lenses. Mr. Dickson's optometrist referred him to Dr. Sidney H. Kriger, an opthalmologist in Memphis, Tennessee.

On May 9, 2003, Dr. Kriger performed LASIK surgery on both of Mr. Dickson's eyes. After the surgery, Mr. Dickson complained of several problems in his left eye. He later discovered that he suffered from an inferior temporal decentered ablation[2] of his cornea. Mr. Dickson filed a complaint on September 27, 2004, claiming that Dr. Kriger was negligent in performing the LASIK surgery.

After nine years, several pre-trial motions, and an interlocutory appeal, the case proceeded to trial on October 28, 2013. At the conclusion of Mr. Dickson's proof, Dr. Kriger moved for directed verdict. The trial court granted the motion, finding that Mr. Dickson had failed to establish a prima facie case of health care liability. Specifically, the court found that Mr. Dickson had failed to establish: (1) the standard of care for ophthalmologists in Memphis at the time of Mr. Dickson's surgery; and (2) that Dr. Kriger's negligence was the proximate cause of Mr. Dickson's eye injuries.

A. Proof at Trial

Mr. Dickson testified that he has developed several on-going conditions in his left eye since the LASIK surgery: shooting pain "30 to 40 times a day"; poor vision; extreme sensitivity to light; glare; and difficulty seeing at night. The conditions resulted despite Mr. Dickson apparently doing well during surgery. When asked about whether Mr. Dickson followed instructions during surgery, Dr. Kriger testified as follows:

Q: And at no time did you ever stop the procedure because Mr. Dickson was not focusing on the red light, correct?
A: That is true.
Q: Now, so in essence, as far as Mr. Dickson is concerned in this procedure, he cooperated 100 percent, correct?
A: That is true.

Dr. Kriger further testified that if he or a monitor in the room had seen Mr. Dickson's eye move from the center of the laser beam, he "would . . . have stopped [the laser], [and] the laser would have broken laser lock and it would have stopped automatically."

Dr. Kriger agreed that the creation of the corneal flap is very important, and if a "bad flap" is created, the LASIK procedure should not go forward. He claimed, however, that the flap created on Mr. Dickson's left eye was adequate to complete the LASIK procedure. Dr. Kriger also asserted that liquid from a tear that appeared on Mr. Dickson's eye during surgery may have "prevented the beam from treating the cornea evenly, " and caused Mr. Dickson's eye injuries.

Mr. Dickson's expert medical witness was Dr. Rolando Toyos, an ophthalmologist practicing in Memphis, Tennessee. Dr. Toyos began treating Mr. Dickson in March 2004, after Mr. Dickson's LASIK surgery. Dr. Toyos opined on the procedure for creating a corneal flap sufficient to perform LASIK surgery:

[W]e would use a piece of technology that used a blade to make this flap that we're going to lift. . . . The most important part about the flap is that we can have a full treatment zone and the flap needs to be big ...

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