A man claiming an eye surgeon’s inadvertent anesthesia injection caused him to go blind in one eye is appealing a Philadelphia jury’s verdict in favor of the doctor.
On March 24, Philadelphia Court of Common Pleas Senior Judge Mary D. Colins issued an opinion in response to the plaintiff’s appeal in Chiodetti v. Fernandes. In that opinion, Colins wrote that Judge Gary DiVito’s decision denying plaintiff Gary Chiodetti’s request for judgment notwithstanding the verdict was sound.
In making her determination, Colins said the jury’s finding that defendant Dr. Eugene Fernandes was not negligent was sufficient grounds to deny a motion for JNOV.
Chiodetti had argued that Fernandes breached the standard of care by injecting Chiodetti’s eyeball with anesthesia rather than the surrounding orbital area.
Colins said the jury “concluded that Dr. Fernandes either did not actually perforate Chiodetti’s eyeball or, if he did, his method did not fall beneath the standard of care for administering anesthesia to a patient suffering an orbit fracture.”
On April 13, 2007, Chiodetti, who was 26 at the time, arrived at the emergency room of Frankford-Torresdale Hospital (no longer a defendant) with injuries stemming from an assault that occurred in his neighborhood, according to Colins.
A scan of Chiodetti’s head revealed that he had sustained an “orbital blowout fracture.” Colins said Chiodetti was diagnosed with closed orbital flood, nasal fractures and facial lacerations.
Fernandes operated on Chiodetti’s right eye to repair the orbital fracture, Colins said. Two days later, Chiodetti experienced a loss of vision in his right eye, and later found out that the loss of sight was permanent.
Roughly two years later, on April 6, 2009, Chiodetti filed suit against Fernandes and the hospital, claiming that his blindness was a result of negligence on Fernandes’ part—specifically, an alleged inadvertent injection into Chiodetti’s eye. The hospital was dismissed from the case July 12, 2011, two days before the trial, according to Colins.
At trial, Chiodetti’s ophthalmology expert testified that surgeons administering injections of anesthesia near the eye must verify the location of the needle by “wiggling” it to ensure that the needle isn’t touching the eyeball before injecting the anesthesia, Colins said.
The plaintiff’s expert said the injection of anesthesia into the eye caused pressure that cut off the blood flow to Chiodetti’s retina, according to Colins.
One of Fernandes’ ophthalmology experts, Dr. Jay S. Duker, testified that Fernandes administered the anesthesia properly. According to Colins, that expert also said that wiggling the needle to make sure it hasn’t perforated the globe of the eye is “a particularly bad idea,” adding that it is an archaic old procedure that presents a “unacceptable risk of injury.”
Duker testified that it was “highly unlikely” that Fernandes perforated Chiodetti’s globe and that other possible causes of Chiodetti’s blindness could not be ruled out, Colins said.
On July 27, 2011, a jury verdict in favor of Fernandes was handed up, according to the docket.
On appeal, Chiodetti claimed that Duker’s testimony should have been excluded because the report was produced 108 days late, 11 days before trial, in violation of court-ordered deadlines, Colins said.
Fernandes responded that Chiodetti’s expert had received a copy of the report, according to Colins, and mentioned that Chiodetti’s expert wrote a report in rebuttal to Duker’s. Colins said DiVito was correct in concluding that Chiodetti suffered no prejudice, since he had adequate notice of the defense expert’s liability theory.
Chiodetti also claimed he suffered “trial by ambush” by the admission of Fernandes’ second expert witness, Dr. Nicholas T. Iliff, the day before the trial began, according to Colins.
However, DiVito determined once again that Chiodetti had suffered no prejudice.
“This court finds no basis to second-guess this judgment,” Colins said. “Since Dr. Iliff was in the case long before trial and, according to Dr. Fernandes’ own pretrial memo and attachments was expected to serve as his witness, Chiodetti can advance no credible claim to surprise.”
Chiodetti’s attorney, Christine C. McGuigan of Peachtree Tax & Notary Service in Wyndmoor, Pa., as well as his appellate counsel, Joseph Blum of Shook, Hardy & Bacon in Philadelphia, declined to comment.
Kyle Norman Thompson of Kilcoyne & Nesbitt in Plymouth Meeting, Pa., represented Fernandes and did not return a call seeking comment.
(Copies of the 11-page opinion in Chiodetti v. Fernandes, PICS No. 14-0452, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •