Debate Over Extent of Eye Damage Following Implant Lens Surgery Leads to $1 Million Verdict in Zaleski v Elmhurst Eye Surgery Center

Medical malpractice lawsuits are composed of two main elements: negligence and damages. Therefore, simply showing that a medical provider’s treatment is negligent is not enough – a plaintiff must also show that the negligence led to a significant amount of damages. In the Cook County medical malpractice lawsuit of Cindy Zaleski v. Elmhurst Eye Surgery Center, Kovach Eye Institute, Ltd. and Dr. Kevin Kovach, 08 L 7387, the issue was whether or not the plaintiff’s damages were extensive as she claimed.

The medical negligence case dealt with an eye surgery Cindy Zaleski had when she was 19 years-old. Zaleski underwent a phakic intraocular lens implantation surgery to correct the nearsightedness in her left eye. This particular surgery involves implanting a plastic or silicone contact lens in the eye and is meant to eliminate the need for eyeglasses or disposable contacts.

Phakic lens surgery is a fairly new procedure, therefore the long-term risks are not known. However, the short-term risks include: possible vision loss, retinal detachment, infection, and the development of increased intraocular pressure. This last risk is what happened in Zaleski’s case. After undergoing the eye surgery at Elmhurst Eye Surgery Center, she developed increased pressure in her left eye. Her medical malpractice complaint alleged that the defendant ophthalmologist, Dr. Kevin Kovach, failed to diagnose and treat this pressure in a timely fashion.

Zaleski and her attorneys were able to satisfy the burden of demonstrating that the defendant doctor was negligent by showing a) that the defendant owed Zaleski a duty of care; b) that the doctor had breached this duty; and c) that the breach of duty caused her injuries. The injuries Zaleski was then claiming included the permanent enlargement of her left pupil. As a result of the preventable pupil enlargement, Zaleski’s experts claimed that she would suffer from distorted and blurred vision, light sensitivity, decreased peripheral vision, and would experience headaches when engaged in activities such as driving or reading. In addition, Zaleski will be required to wear eyeglasses over her contact lenses, the very outcome she was seeking to eliminate by undergoing the surgery.

However, the defendant, Dr. Kovach, disputed the extent of Zaleski’s injuries following the botched eye surgery and contended that they were not as severe or as extensive as she claimed. The different stances in regard to the plaintiff’s injuries can be seen in the wide disparity between the plaintiff’s demand to settle and the defendant’s responding offer. Prior to the Cook County trial, the plaintiff had asked for $5.8 million in order to settle the case; however, the defendant maximum offer was only $500,000. Because of the large difference between these two figures, no settlement was able to be reached and the Cook County negligence case went to a jury trial.

After both parties presented their evidence the jury deliberated for one and a half hours before reaching its medical malpractice verdict. It awarded $1 million in damages to the plaintiff:

-$600,000 for future disability,
-$100,000 for past disability,
-$200,000 for pain and suffering, and
-$100,000 for disfigurement.

Even though the jury found in favor of the plaintiff, its award was much closer to the defendant’s settlement offer of $500,000 than it was to the plaintiff’s demand of $5.8 million. This would suggest that the defense was actually more realistic about the value of Zaleski’s injuries than the plaintiff and her attorney. However, the jury award was double what the defense’s prior offer was, so the plaintiff still gained additional damages by going to trial.

Kreisman Law Offices has been handling Chicago surgical malpractice cases for individuals and families for more than 35 years in and around Chicago and Cook County, including Mundelein, Orland Park, Streamwood, and Lake Zurich.

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