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Plaintiff and defense counsel in Moyer v. Siepser agree on one thing: a Philadelphia Common Pleas jury’s $3 million award to Susan Moyer, who is farsighted in one eye following cataract surgery, sent a message to doctors and patients. “The jury made the decision that Dr. [Steven] Siepser ran a factory, and because of the inattention of his staff to the details of managing the patient, errors were made that were compounded when he performed surgery,” said plaintiff’s counsel Jim Foerstner of Philadelphia-based Beasley Casey & Erbstein. “It is my impression that [Foerstner] impermissibly asked the jury to send a message to the medical establishment that success and competency have to be punished,” countered defense counsel James S. Sell of Philadelphia-based Kane Pugh Knoell & Driscoll. “The award seemed to be the result of a passion or sympathy argument.” After a two-day trial before Judge Carolyn Engel Temin, the jury deliberated for only one hour and 20 minutes — including a break for lunch — before returning the $3.125 million verdict, holding Siepser 80 percent responsible for Moyer’s distorted vision and his group, Surgical Eye Care Limited, 20 percent responsible. “When we were called back in, I had the absolute assumption that this was a defense verdict because it was rendered so quickly,” Sell said. “I was absolutely shocked.” Sell said he plans to file post-trial motions and, if necessary, appeal the verdict. At issue is a September 1996 cataract diagnosis and surgery. Moyer, then 61, consulted Siepser after losing her eyeglasses. Instead of simply replacing them, she was considering laser vision-correction surgery. After examining Moyer, Siepser diagnosed cataracts, which had to be removed before the corrective surgery could be performed. At trial, attorneys debated the diagnosis. Siepser had noted that Moyer suffered from oil-droplet cataracts. Plaintiff’s counsel maintained that oil-droplet cataracts occur only in children with a rare and often fatal metabolic disease known as galactosemia, with which Moyer was not afflicted; defense counsel argued that the medical term has multiple meanings and was correctly applied. Surgery on Moyer’s right eye took place six days after the diagnosis. According to plaintiff’s counsel, multiple mistakes were made prior to the surgery, including a miscalculation in the dimensions of Moyer’s eye, leading to the implantation of the wrong prosthetic lens. Plaintiff’s counsel also argued that Moyer’s informed consent was not obtained. Poorly trained technicians were the cause of these errors, Foerstner said. As a result of the improper procedures, Foerstner said, Moyer is farsighted in her right eye. She still wears glasses, but they do not correct her depth-perception problems. Surgery was never performed on the left eye. Defense counsel told the jury that Moyer’s vision problems developed after the surgery — and that they are correctable. According to Sell, Moyer’s farsightedness developed as she healed. Scar tissue altered the placement of the lens. A second procedure to realign the lens was unsuccessful. Despite her unbalanced vision, Sell said, Moyer can legally drive and was able to read documents in the courtroom. Moyer has not undergone corrective procedures. The verdict hinged on experience, Foerstner said. “I spoke with the jury, and they believed that Dr. Siepser was undertrained and paid poor attention to detail and that there was inattention to detail on the part of the staff,” he said. According to Sell, Siepser’s experience includes more than 14,000 prior surgical procedures and his staff is well-trained. “I spoke to one juror who indicated it was the large size of [Sieper's] practice [that led to the verdict],” Sell said. “The jurors felt he was too successful.” In his own defense, Siepser said, “The message that this jury is sending — do not trust successful practitioners — is a disservice. Instead, a patient with a difficulty should be seeking the very medical care they are avoiding. “It is difficult for me to see someone unhelped by the mouth of a legal system when they could be helped by the hands of the medical community. But maybe the attorney is a better doctor than I am.”

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