In the case of Jesperson v. Karas, 2019 ONSC 5841, the Ontario Superior Court of Justice ordered Dr. Yair Karas, an ophthalmologist, to pay $5.26-million to former dentist Dr. Brent Jesperson and his wife Irena Jesperson.
This was a long case in the making.
FACTS
Back in 1994, Dr. Jesperson decided to get eye surgery. He was nearsighed and had to wear thick glasses to correct his vision. With the glasses, he had 20/20 vision. He went to see Dr. Karas, who had done about 5-6000 radial kerototomy RK surgeries (was pre-laser eye surgery).
The surgery resulted in Dr. Jesperson’s vision improving, but he still needed glasses for sports. He went back and did some “enhancement procedures” on both of his eyes (again, doing RK surgery). After this, Dr. Jesperson had much better vision and was able to play sports without glasses. His vision was 20/20. And he used steroid drops for several months after.
But then Dr. Jesperson started to notice a slow, gradual change in his vision. His left eye got blurry, the two eyes weren’t balancing and he had difficulty seeing at work.
Dr. Karas diagnosed residual astigmatism from the PK procedures. Basically: his eye was shaped like a football instead of like a soccer ball. So in 1999, Dr. Karas did a different procedure – called astigmatic keratectomy – on Dr. Jesperson’s left eye. Again, surgery went well afterwards and Dr. Jesperson was able to play sports without glasses.
But in 2001, Dr. Jesperson’s vision deteriorated and it turns out he needed cataract surgery (to place an artificial lens in his left eye). Dr. Karas did the surgery and the results were good afterwards until a bug allegedly flew in his eye in 2007/2008. Poor guy!
Anyways, at this point, Dr. Karas told him that he had scarring on his cornea and there were blood vessels growing in the area of the scar; he referred Dr. Jesperson to do more surgeries with Dr. Slovomic (an ophthalmologist who specializes in corneal issues).
In 2009, Dr. Jesperson had to stop working as a dentist and sold his practice to his partner in 2011. He stopped working in July 2009, received long term benefits and settled claims with the disability insurer in December 2016.
LAWSUIT
Dr. Jesperson sued Dr. Karas, alleging that he performed the surgeries negligently (below the standard of care) and that, as a result, he has been left with fluctuating, blurry vision, glare and problems with depth perception. All of which stopped him from working as a dentist. Dr. Jesperson’s wife also sued for loss of care, guidance and companionship and loss of income.
Dr. Karas defended against the claims, arguing that the surgeries were done properly with informed consent and without negligence. He also claimed that the damages were caused by the bug incident – not the surgery!
JUDGMENT
The Ontario Superior Court reviewed all the evidence and found that:
- Dr. Jesperson did not give informed consent to the RK surgery on the basis that Dr. Karas made no mention of known risks there was little or no discussion about other options. Dr. Karas knew that Dr. Jesperson would require clear vision for the type of work he was doing. But it was an elective surgery that Dr. Jersperson DID NOT require to do his job (he could wear glasses or contacts); Dr. Jesperson just wanted to not have to wear them because of the nuisance they caused. Dr. Karas also knew the risks associated with RK and was obligated to have a full discussion of the option before proceeding with it. And the court believed Dr. Jesperson who said, had he known the risks of RK (specifically the possibility of developing an irregular astigmatism which required wearing a contact lens or that he would have fluctuating vision that impaired his ability to work as a dentist), then he would NOT have done the surgery.
- Dr. Karas also failed to adhere to the recognized standard for carrying out incisions for a “clear zone” when doing the RK surgery. The industry standard was 3 mm, but all the evidence pointed to the Dr. Jesperson’s clear zones less than 2 mm. The court found that: “Making incisions that intruded into the clear zone such that it was smaller than recommended was negligent … Dr. Karas failed to adhere to the regoznied standard for a clear zone when he did the RK surgeries and in doing so, he breached the standard of care of surgeons doing RK in 1994”.
- On the issue of the bug incident, the Court wasn’t convinced, writing: “I do not find that the bug incident caused the profound scarring that has been identified by the ophthalmologists who have examined the Plaintiff’s eyes. Rather, the irregular astigmatism is the result of the fact that the RK surgeries were performed negligently with a clear zone that was too small, incisions that extend into the limbus, incisions that crossed with other incisions, with the resultant neovascularization in the cornea and scarring.”
