Metropolitan News-Enterprise


Monday, January 22, 2007


Page 1


C.A. Applies Delayed Discovery Rule to Malpractice Suit


By TINA BAY, Staff Writer


A LASIK eye surgery patient who suffered loss of vision following the procedure was not time-barred from bringing a medical malpractice action after her condition became debilitating four years later, the Fourth District Court of Appeal ruled Friday.

In an unpublished opinion, Div. One reversed an order by San Diego Superior Court Judge Luis R. Vargas dismissing Shannon Thomas’s fraud and negligence claims against ophthalmologist Glen A Kawesch, who has offices in Los Angeles and San Diego.

Thomas underwent LASIK performed by Kawesch in 2000, after the doctor recommended the procedure to correct her farsightedness and advised her that she was a good candidate for the surgery.  One of the disclosed risks of the surgery was loss of best corrected visual acuity, or the highest score achievable on a vision test using the best possible glasses prescription.

Plaintiff’s Allegations

When she experienced some loss of her best corrected visual acuity in both eyes after the procedure, Thomas allegedly did not know or have basis for suspecting that Kawesch had acted improperly in performing her surgery because the effects she suffered were within the disclosed risks.

Four years later, however, Thomas’s vision degenerated into optic neuritis in her left eye, which caused her to lose all useful vision from that eye and forced her to depend entirely on her right eye—which could not be corrected sufficiently to allow her to drive or accomplish other daily tasks.

She then spoke with another of Kawesch’s patients and learned that he used a NIDEK laser that had neither been approved by the FDA nor authorized by its manufacturer for use on farsighted patients, she alleged. In addition, Thomas claimed she discovered that at the time of her surgery, Kawesch had illegal software that enabled him to use the NIDEK laser to perform surgery to correct farsightedness, and that the manufacturer later removed the software from his office to keep him from using the laser for such procedures.

In August 2004, Thomas filed a medical negligence and fraud action against Kawesch, to which the doctor demurred on statute of limitations grounds.

Under Code of Civil Procedure Sec. 340.5, the time for filing a medical malpractice claim is three years after the date of injury or one year after the plaintiff discovers or should have discovered the injury.  The time is tolled where a defendant’s misrepresentation or intentional concealment prevents the plaintiff from bringing the action before the limitations period has run.

Demurrer Opposed

In opposing Kawesch’s demurrer, Thomas contended her allegations established that the limitations period did not begin to run until 2004 when she first suffered “appreciable harm” outside the realm of disclosed risks; that the statute was tolled until 2004 due to Kawesch’s fraud, and that the one-year period did not begun to run until August 2004 when she first discovered the cause of her injury.

Sustaining the demurrer, Vargas ruled Thomas’ allegations were insufficient to establish fraud caused her delayed discovery of her injuries, and that the delayed discovery rule did not apply to medical malpractice claims.

Writing for Div. One, Justice James A. McIntyre explained the delayed discovery was applicable:

“[A]lthough Thomas’s loss of best corrected visual acuity apparently provides the basis for her damage claims, because such loss was a disclosed risk of LASIK surgery when performed on an appropriate candidate, it did not constitute appreciable harm sufficient to trigger the running of the three-year limitations period as to her claim that Kawesch performed that surgery despite the fact it was contraindicated for treating a farsighted patient.”

Her allegations that Kawesch without disclosure used a laser unauthorized for the treatment of farsightedness were sufficient to plead a tolling of the limitations period based on fraud or intentional concealment, the justice added.

The case is Thomas v. Kawesch, D047504.


Copyright 2007, Metropolitan News Company