Woman Awarded Damages In Wrongful Surgery Case

Woman Awarded Damages In Wrongful Surgery Case

Doctor operated on wrong eye; local woman wins suit.

An Alexandria jury has awarded a local woman $1 million in damages because a physician operated on the wrong eye.

April Bourne, a 51-year-old Alexandrian, who now lives with her son, said her ordeal began in 2000.

Bourne has diabetes. In February of 2000, she began having trouble seeing out of her right eye. “She thought she had a hair floating in her eye,” said Cary S. Greenberg, Bourne’s attorney.

Bourne went to see her ophthalmologist who referred her to a retinal specialist. That retinal specialist was Dr. Michael Rivers. Bourne saw Rivers several times between February and May of 2000. He finally concluded that surgery was necessary and scheduled the procedure for May 23, 2000.

“April went to the hospital, dressed in the proper attire for the operation, had her right eye dilated in preparation for the surgery and a mark was placed over the right eye to indicate that was the eye on which the surgery was to be performed,” Greenberg said. “While there are certainly risks, the surgery that April was to undergo was fairly routine.”

AT THE TRIAL, Rivers said that he looked at the chart and saw a notation that indicated surgery was to be performed on the left eye. “That note was in the wrong chart,” Greenberg said. “The retinal note of another patient, a 76-year-old woman who was undergoing the same surgery, but on the left eye, had been misfiled in April’s chart.”

Rivers continued looking through the chart and saw that the signed consent form clearly stated that the right eye was to be operated on, not the left eye. At trial, Rivers said that he did not check the name on the retinal note against the name on the consent form or on the patient’s bracelet.

“He admitted that he changed the consent form before surgery, crossing out right eye and writing in left eye,” Greenberg said. “He did not check to see which eye had been dilated, nor did he check to see which eye had been marked. He said that he considered waking April up to ask her which eye needed surgery but did not do that. Also, when he began operating on the left eye and did not see blood in the vitreous [the reason for the surgery] he did not stop.”

Bourne awoke to find nurses bandaging the wrong eye. “They wouldn’t tell me anything,” she said. “They just told me they were going to call my sister.”

Rivers apologized at the trial.

THE JURY OF eight, three women and five men, awarded $350,000 in punitive damages and $650,000 in compensatory damages. This award of punitive damages is believed to be the first-ever awarded in a medical malpractice case in Virginia and is the maximum in punitive damages that is allowed by Virginia law.

Rivers’ defense attorneys are filing post trial motions to have the verdict set aside. They argued at trial that Bourne’s delay in seeking treatment for her right eye subsequent to the erroneous surgery led to her losing her sight in that eye. They also argued that her diabetes was not under control and that lack of control led to her inability to work. At trial, Alexandria Circuit Judge John Kloch dismissed these arguments.

“On May 23, April had 20/40 vision in her right eye,” Greenberg said. “By June 30, when she was referred to another retinal specialist, that vision had deteriorated to 20/300 and was not correctible. Now, she can’t even see that well.

“The surgery caused damage to her peripheral vision in the left eye as well.”

Bourne is registering for services with the state agency that provides assistance to the blind and visually impaired. “They are talking to me about getting audio books and about some vocational training,” she said. “I hope things are going to get better but sometimes I just get depressed. Things just aren’t ever going to be the same.

"I am basically confined to my house,” Bourne said. “I can’t go out by myself. I can’t cook anymore. I can’t read a book and I need help reading my mail. I can’t watch television and can only see very large things that are close to me. I want my life back the way it was and I know that can’t happen.”

Judge Kloch will hear post trial motions in the case on October 23.