A Toronto Judge has ordered Dr. Yair Karas (“Karas”) to pay Dr. Brent Jesperson (“Jesperson”) $5.26 million for a “poorly done and misleadingly explained operation” that caused Jesperson to be unable to continue practicing dentistry and left him feeling depressed and suicidal.
WHAT HAPPENED?
In 1994, Jesperson decided to undergo vision-correction surgery, known as radial keratotomy (“RK”), in order to play sports without having to wear glasses. Although he was admittedly capable of performing his work as a dentist with glasses, he chose to proceed with the procedure after his ophthalmologist suggested the surgery to him and advised that the risks were minimal.
RK was invented by a Russian doctor in the 1970s. It involves making incisions with a diamond blade in the cornea in a radial pattern around a clear area, flattening the cornea and correcting the nearsightedness. RK was an elective surgery that was performed on thousands of nearsighted Canadians for many years, until it was replaced in the 1990s by safer, more effective laser-assisted procedures.
Jesperson considered the surgery to be a success at first, but his eyesight worsened as time went on and he began to suffer from blurriness in one eye, glare and impaired depth perception. He returned to see Karas a year after the surgery and underwent another operation. His eyesight again improved, but he began over time to develop eyesight problems.
Jesperson was forced to give up his dental practice in 2009 as he was unable to continue working on patients.
In her reasons for judgment, Justice Darla Wilson wrote:
His life has changed dramatically now because of his vision problems. He cannot work as a dentist, he gets eye strain that causes headaches and he finds he is fatigued.
LIABILITY FINDINGS AT TRIAL
At the conclusion of the trial, Justice Wilson found that Karas’ judgement fell below the standard of care of a surgeon, performed the surgeries negligently and failed to warn Jesperson of known risks and overstated the chances for success.
Justice Wilson also concluded that Karas did not obtain the required informed consent prior to operating. Karas was obligated to provide the known risks to Jesperson, including that cutting the cornea might lead to corneal weakness or instability; the potential that he might not be free of his glasses; he may suffer from halo, glare and starburst in his vision, fluctuating vision, loss of clarity of vision or irregular healing which may create an irregular astigmatism which could not be corrected by glasses. In her decision, Justice Wilson wrote:
The consent form signed by the Plaintiff made no mention of these known risks, there was little or no discussion about them or of other options, and therefore Dr. Jesperson did not given an informed consent to the RK surgery.
Justice Wilson also concluded that Karas did not meet the standard of care required of an ophthalmologist as he made a pattern of incisions that left too small a clear area, which cut into the eye’s limbus (the marginal region of the cornea of the eye) and reduced the effectiveness of the operation. As a result of the negligence of Karas, Jesperson was left with an unstable cornea, scarring and irregular astigmatism.
Dr. Karas knew that the work of a dentist required good, clear vision to do fine work in the small, dark spaces of the mouth. An individual who required excellent vision to work at his chosen occupation would not risk his career for the potential benefit of playing sports without glasses.
WHAT WERE THE DAMAGES AWARDED TO JESPERSON?
As part of his claim for damages Jesperson claimed a past loss of income and a future loss of income as a result of his inability to practice as a dentist. Justice Wilson concluded that Jesperson could work on a part-time basis (15 hours a week) as a college instructor in the field of dentistry after he stopped working as a dentist. Given this consideration, she awarded Jesperson $2,465,000 for past loss of income and $2,591,161 for his future income loss.
Jersperson also made a claim for general damages (i.e. damages for non-monetary losses). Based upon the evidence at trial, Justice Wilson found that as a result of the surgeries Jesperson was left with weak corneas, a severe irregular astigmatism in his left eye, irregular astigmatism in his right eye and neovascularization of several incisions in his eyes. Jesperson experiences blurred vision, glare, lack of depth perception and problems focusing, eye strain, headaches and fatigue. Given these challenges, Justice Wilson awarded Jesperson general damages of $150,000. He was also awarded out of pocket expenses and his wife was awarded $40,000 in damages for her loss of care, guidance and companionship.
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