28-Month Gap In Treatment Does Not Bar LASIK Victim’s Malpractice Claim

May 16, 2017


 William Freely v. Eric D. Donnernfeld, M.D. and Ophthalmic Consultants of Long Island

In the Supreme Court, Nassau County, New York, Case No. 601780/2013

 28-Month Gap In Treatment Does Not Bar LASIK Victim’s Malpractice Claim

On May 3, 2017, the New York appellate court reinstated a patient’s LASIK malpractice claim, despite a 28-month gap in treatment, based on the continuous treatment doctrine.  The lower court had granted partial summary judgment to the LASIK surgeon, Eric D. Donnenfeld, M.D., and his practice, Ophthalmic Consultants of Long Island.  The Appellate Division, Second Department reversed.  It held:

After being told, in November 2008, that his only options were to wait for the new treatment or seek treatment outside the country, the plaintiff returned to the defendants for treatment of the same condition on March 9, 2011, and, in fact, received treatment for the same condition from the defendants continuing until December 2012. Under these circumstances, there are questions of fact as to whether further treatment was explicitly anticipated by both the defendants and the plaintiff after 2008, and whether, under the particular circumstances of this case, the March 9, 2011, visit constituted a timely return visit (see Gomez v Katz, 61 AD3d 108).

The appellate court’s decision is very important for patients who develop LASIK complications, including post-LASIK ectasia, which may not manifest any symptoms until years after their surgery.

On March 3, 2001, Dr. Donnenfeld performed LASIK eye surgery on William Freely.  18 months later, Mr. Freely developed keratoconus, an ectatic disease that causes progressive thinning and weakening of the cornea.  The complaint alleges that Dr. Donnenfeld failed to recognize pre-operative signs of keratoconus, for which LASIK surgery was contraindicated.  The complaint further alleges that Dr. Donnenfeld failed to diagnose keratoconus and post-LASIK ectasia, as well as timely inform and treat Mr. Freely.  The complaint contends that Dr. Donnenfeld’s negligence in performing contraindicated surgery on Mr. Freely rendered him with a permanent visual disability.

On November 12, 2015, the Nassau County Supreme Court granted defendants’ motion for partial summary judgement.  In the motion, defendants moved to dismiss all claims arising prior March 9, 2011 as time-barred under the statute of limitations.

In a related decision, the appellate court affirmed the lower court’s decision which denied plaintiff’s motion to plead fraud against Dr. Donnenfeld.  Plaintiff alleged that Dr. Donnenfeld knowingly concealed the fact that the patient had developed post-LASIK ectasia, and withheld therapy for five years.  The appellate court held:

The allegations of fraud set forth in the proposed amended complaint amounted only to allegations that the defendants concealed their alleged malpractice.  This is insufficient to give rise to a cause of action sounding in fraud separate and different from the malpractice cause of action (see Simkuski v. Saeli, 44 NY 2d 442, 452).

Plaintiff is represented by Todd J. Krouner of the Law Office of Todd J. Krouner, in Chappaqua, New York.  Mr. Krouner represents victims of LASIK surgery throughout the United States, and has extensive experience in litigating medical malpractice actions.  Following Mr. Krouner’s $7.25 million verdict in Schiffer v. Speaker, he has the two largest verdicts for LASIK malpractice.

A copy of the decisions is available here. For further information, please contact Todd J. Krouner, Esq., at (914) 238-5800.