Judge Kirsten Kelly and other appellate judges dismiss malpractice claim as "speculative."

Harold Brown sued David Burk, Richard Wacksman and Bay Eye Care after Brown's vision was badly damaged by a retinal detachment.  Brown had undergone cataract removal on his right eye through the defendants.  Allegedly he "moved during surgery" causing a tear in the posterior capsule.  He was not informed of the tear, however, and it was not investigated during two follow-up visits.  Eight days after surgery, he suffered a severe loss of vision in the eye and underwent emergent surgery for a detached retina.

Brown's attorneys presented the testimony of another specialist who testified that "more likely than not if an exam had been done and there were findings of retinal tear or a retinal hole or retinal detachment and a repair had been done while the macula was still attached, then the outcome would have been much better."  Despite this and other supportive testimony, Judge Kirsten Kelly and two other judges dismissed Brown's claim entirely. 

The judges noted that the expert relied on his experience and did not cite any scientific articles in support---even though it would be unethical to conduct studies where identified tears or detachments were purposely untreated to investigate the impact.  The judges emphasized the expert's use of the term "had" in the above quotation, as though the testifying expert somehow possessed the power to travel back in time and conduct the exams that the defendants negligently failed to conduct.  It is sad to see such result-oriented jurisprudence and a clear denial of the victim's constitutional right to a trial by a jury of one's peers.