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More than 1.5 million Americans will get laser eye surgery this year. But as the popularity of this elective surgery grows, so do related lawsuits. Most recently, a Kentucky jury awarded a 38-year-old woman a record $1.7 million, $500,000 of it in punitive damages. Tonya Oliver, who went legally blind in her left eye after four laser surgeries during a 10-month period, brought the suit. On Nov. 6, a jury ruled, 10-2, that the doctor, Thomas Abell, was 100 percent at fault for the surgery that caused Oliver’s damaged cornea. Tonya Oliver and Rob Oliver v. Thomas T. Abell, No. 99-CI-1816, (Fayette Co, Ky., Cir. Ct.). The Kentucky suit is one of several since the beginning of last year that have topped $1 million. Most have involved medical malpractice claims alleging that the doctor erred when cutting the cornea or in using the laser beam to sculpt a new shape for the eye. “Because of the massive number of these surgeries, there will continue to be problems,” said Richard Robinson, a Buffalo, N.Y., solo practitioner who is co-chairman of the Association of Trial Lawyers of America’s laser eye surgery litigation group. He previously had the highest jury verdict, $1.25 million. The Kentucky verdict is being challenged by a new defense lawyer on the basis of an appearance of impropriety: The judge is married to a lawyer at the three-person plaintiffs’ firm who represented the injured woman. THE SURGERY Oliver initially had a positive experience with Abell, who eliminated the nearsightedness in her left eye after her first surgery with him, her attorney said. However, six months later, in May 1998, she had a second “enhancement” surgery to fix an astigmatism in the eye. Plaintiff’s lawyer Thomas Herren, of Herren & Adams in Lexington, Ky., said that, during this visit, Abell allegedly transposed Oliver’s prescription, thereby operating on the wrong axis of her eye. “The result was he doubled her astigmatism instead of correcting it,” Herren said. “On the following day, when the patch was removed Tonya could not see the big E on the eye chart.” After 2 1/2 hours, the jury determined that not only did the doctor err in that surgery but that he tried to conceal his mistake from Oliver by performing two subsequent operations. Abell’s lawyer, James Grohmann of O’Bryan, Brown & Toner in Louisville, Ky., who after the verdict replaced Eric Jensen of Louisville’s Whonsetler & Associates, has filed a motion to alter, amend or vacate the verdict because Judge Rebecca Overstreet of Kentucky’s 22nd Circuit in Lexington is married to Herren & Adams attorney Jerry Wright. Grohmann said that the judge should have recused herself under the judicial ethics canons. Otherwise, lawyers are put in the uncomfortable position of having to move to do so and “risk incurring the wrath of the judge.” Herren said that Wright is an associate who was kept separate from the Oliver case. “He’s been walled out, including financially,” he said. The Martindale-Hubbell lawyer directory identifies Wright as a member of the firm. Asked about the directory entry, Herren said he would look into it. Herren estimated that the firm’s lawyers have been before Overstreet about 10 times previously and said that she has recused herself four or five times when Wright has been involved in the case. Herren said that Abell’s previous lawyer was aware of the relationship but didn’t make an issue of it. Jensen declined to comment. Grohmann said that his client, Abel, was unaware of the relationship. That’s not the only complaint the defense has with the judge. Grohmann also alleges that there was no basis for any instruction to the jury on punitive damages and no guidance given to the jury about the amount for the punitives. His client’s conduct, he says, “was at worst negligent — it wasn’t reckless.” Overstreet declined comment because the case is pending.

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