Aaronson Rappaport Forces Case to be Dropped

Client: A major metropolitan teaching hospital and an attending ophthalmologist.

Type of Case: Alleged improperly performed cataract surgery resulting in vision impairment.

Background: Following cataract extraction and intraocular lens placement surgery by the defendant ophthalmologist and routine follow-up visits, the plaintiff began treating with additional physicians, several of whom later diagnosed decentering of the lens. Surgical correction was indicated to fix the problem.

Suit Filed: The case was commenced in Supreme Court, New York County.

Client’s Concern: On the eve of trial, plaintiff came forward with additional records from one of the subsequent treating physicians, which suggested the lens had been out of place just months, not years, after the surgery in question. Such evidence, which contradicted the defendant’s records, was strong proof the surgery was performed incorrectly.

Action Strategy: Careful comparison of copies of the non-party records subpoenaed to the courthouse, with those plaintiff provided directly to defense counsel revealed they had been changed at several points. As this physician was to be a key witness for the plaintiff, Aaronson Rappaport demanded a court hearing and the chance to voir dire the non-party physician prior to jury selection to inquire about the last minute “discovery” of his records, not to mention the various versions of the records that had been turned over. During the hearing, Aaronson Rappaport demonstrated the records had been rewritten and were thus unreliable, which led the court to preclude the records and to limit that witness’s testimony in a manner favorable to the defense. This development forced plaintiff’s separately retained expert witness to back out of the case, which in turn led to an immediate discontinuance of the case prior to jury selection.

Result: A case with potentially significant exposure was discontinued prior to trial.