“May it please the Court, and you, ladies and gentleman of the jury.”
I have been robbed of the opportunity to speak those words in court so I have taken the liberty to do so here. If you practice law, you are well versed with what these words mean, but for those who are not lawyers or did not go to law school, this statement is uttered during the opening of trial. I visited several attorneys to explore options of filing a medical malpractice case, all to no avail. The statute of limitations has run but nothing says I can no longer think about it. The lawyer in me often runs through the elements of negligence when I think about my case and the standard of care that a doctor should be held to.
To be found negligent, a plaintiff must show that: 1) the defendant owed a duty of care; 2) the defendant must breach that duty; 3) the defendant’s actions caused the injury; and 4) the plaintiff must prove actual damages.
Here’s how these requirements apply to my case:
1 and 2. You know the basics of my story: In the summer of 2007, I began experiencing double vision. Nothing precipitated the double vision – there were no warning signs. No vomiting, no blackouts, no memory loss, no loss of balance – just the mysterious double vision. At a visit to my optometrist, a routine eye exam was performed and my optometrist told me that “he saw something” when he looked into my eyes. Puzzled and fearful, I asked what he meant by this and prodded for some insight. Yet, much to my chagrin and against my wishes, he did not delve into the possible causes that would explain this problem. He simply brought me into his office, sat me down and said that as far as he can see, my optic nerves were inflamed (known as papilledema in the medical world) but there was nothing for me to worry about. In his opinion, my eyes and optic nerves looked healthy.
Within two weeks of wearing the glasses, the double vision subsided. Fast forward to the summer of 2008: the double vision returned. This time around however, those same prism glasses did not correct the problem. When I returned to the optometrist, he evaluated me and agreed that a new prescription for prism glasses was needed but determined that the reason for this was that “my eyes were eating the prism.” He conceded that this was odd but not unusual for someone wearing prism glasses and wanted to write a new prescription. Yet, inflamed optic nerves and papilledema do not just occur overnight. Each and every year that I went for my annual eye exam, the same battery of tests were performed: I read the letters on the chart, my peripheral vision was checked, a glaucoma test (or the puff-of-air test) was given and my eyes were dilated. Each and every time, my doctor “saw something”, but didn’t investigate further.
It’s reasonable to conclude that my doctor owed me a duty to provide quality care and advise me of potential problems when he informed me that he first noted papilledema and first saw something pressing against my optic nerve in 2007 and he breached this duty when he failed and refused to send me for further evaluations and prescribed prism glasses.
3. Causation is proven by a showing that the doctor’s actions caused the injury. After removal of the tumor, my surgeon informed my family and I that, based upon the size of the tumor, it was likely growing inside my head for anywhere from three-to-six years.
In other words, “but for” the doctor’s negligence, the tumor could have been detected earlier. The procedure to remove the tumor would have been less invasive and the recovery would have been different.
My lawyers agreed that my case satisfied requirements 1 and 2, and potentially even 3. This brings us to element 4: damages or harm. This is where my case failed. Fortunately, I made a “recovery” in the legal sense. In the opinion of the attorneys, I could not show that I had suffered actual damages. I was, in all practical ways, cured and healthy. My prognosis was good, the tumor was benign and removed and I had no permanent debilitating consequences from the delay in diagnosing me.
In my opinion however, this is where the law fails. And my story is a compelling example of how that is. My law school career came to a screeching halt and I never recovered in the classroom; as a result of the size of the tumor at the time it was removed, I now have cognitive disabilities which hinder my ability to quickly process information; I developed seizures and will likely remain on seizure medications for the rest of my life. These are just a few.
Please don’t get me wrong. I don’t want any compensation or monetary damages for pain and suffering. What’s in the past is in the past. But what I do want is to ensure that this problem does not occur to anyone else.
Find me one person, one attorney that is even a plaintiff’s attorney, who could tell me that this was the right decision. How do we, as a society, fail to hold a licensed optometrist responsible for failing to diagnose my problem over the many years that I visited his office?
Despite my high tolerance for pain and lack of manifestation of any symptoms, how did the presence of the tumor go undetected for so many years?
So as I already said, my case failed for a lack of recognizable damages. But how can the law allow such grave deprivations of patient care and allow a doctor to continue his practice?
I struggle with this question every day and wish and pray that this problem does not scare another innocent person to death.
While I can no longer pursue a lawsuit, perhaps my story will someday help to influence a change in how we hold professionals accountable.