The Burrell Case
Bob Burrell was diagnosed with an “iris nevus” (malignant melanoma of the eye) in 2011 via a slit-lamp exam. Despite the standard of care dictating that an optometrist obtain an image of the iris nevus and follow up with the patient in six months, Mr. Burrell’s optometrist, Dr. Lauren, failed to follow up on the diagnosis. Instead, Dr. Lauren failed to even tell Mr. Burrell about the iris nevus and instructed him to return in two years for another routine exam. This failure to follow-up allowed Mr. Burrell’s condition to worsen and ultimately caused him to undergo an enucleation (removal of the eye).
In the years leading up to Dr. Lauren’s first recognition of Mr. Burrell’s iris nevus in 2011, Mr. Burrell had four uneventful, routine annual check-ups, all performed by Dr. Lauren. On January 25, 2011, at a routine annual check-up, Dr. Lauren noted an iris nevus in Mr. Burrell’s left eye via a slit-lamp exam. A slit-lamp exam is used by ophthalmologists and optometrists to microscopically examine a patient’s eyes for any abnormalities or problems.
The standard of care would dictate that the optometrist obtain an image of the iris nevus upon recognition and then follow-up with the patient in six months with another image and compare the images. A comparison of the images would reveal any growth of the iris nevus. Dr. Lauren did not take the appropriate actions. Instead, Dr. Lauren recorded her finding in the “Impressions” section of the medical record, but she did not record the iris nevus under the “Diagnosis” section. The “Diagnosis” section of the medical record was then left to be populated by the electronic medical record.
Rather than ordering Mr. Burrell to return in 6 months to re-check the iris nevus, Dr. Lauren allowed the electronic medical record to automatically issue a discharge instruction, telling Mr. Burrell nothing of the iris nevus, and to simply return in 2 years for another routine exam. Mr. Burrell was not told of the iris nevus when it was diagnosed in 2011, nor at any of the ensuing three office visits with Dr. Lauren, each of which occurred about 2 years apart. At subsequent appointments in 2012, 2014, and in 2016, Dr. Lauren did not even mention the iris nevus, despite conducting additional split lamp examinations, which would have revealed the iris nevus.
Dr. Lauren did not dispute that the iris nevus did not go away once it was diagnosed in 2011. In fact, the iris nevus actually grew. In her deposition, Dr. Lauren had no explanation for simply missing the diagnosis on each appointment.
Dr. Lauren left the practice that she worked at while Mr. Burrell saw her, and so for Mr. Burrell’s biannual checkup, he was seen by another optometrist, who diagnosed the iris nevus at that time. Mr. Burrell was referred to an ophthalmologist locally and then to Cleveland Clinic where he underwent the enucleation (removal of the eye).
An iris nevus, if diagnosed early, can be excised with no further problems. Now, Mr. Burrell is left with the loss of an eye and an increased risk that his cancer will at some point spread. Mr. Burrell’s damages consist of the loss of his eye, the increased risk of subsequent metastatic disease and the associated non-economic loss, such as his worry about the recurrence and the inconvenience he experiences from having his eye removed. Mr. Burrell’s wife’s damages consist of her loss of consortium, which includes an unusual aspect: although Mrs. Burrell has had excellent office jobs over the course of her working life, she has had a latent case of agoraphobia, which has recurred by reason of her worry for her husband’s condition. She reluctantly and tearfully gave an account of all of this in her deposition.
We filed a lawsuit on behalf of Mr. Burrell and Mrs. Burrell against Dr. Lauren and her employer. We alleged that Dr. Lauren was negligent for not following up on a diagnosis of “iris nevus” in Mr. Burrell’s eye. Appropriate follow-up would have spared Mr. Burrell the enucleation he was required to undergo, and it would have markedly reduced the chance that his cancer will reoccur. Dr. Lauren was negligent on four separate occasions – each occurring about two years apart. At each office visit, Dr. Lauren should have recognized the iris nevus and referred Mr. Burrell to an ophthalmologist for further treatment.
There is seemingly no defense here. Dr. Lauren clearly failed to tell Mr. Burrell about the iris nevus she recognized at the 2011 appointment, as evidenced by the discharge instructions. However, despite the seeming lack of a defense, this case made it all the way to picking a jury weeks before trial.
In preparing to try this case, we conducted a focus group to get a better grasp on the value of the case. This case was difficult to value because Mr. Burrell missed little time from work due to his injury, though his lost peripheral vision post-enucleation had caused him some problems at work. Despite the small amount of time missed from work, the reception of the case from the participants of the focus group gave us confidence to take the case to trial.
Before the time of trial, we had a mediation as well as a conciliation before a judge to make a sincere attempt at settlement. However, the impediment of settlement in the county where this case took place, as well as other rural counties in the state, is that jurors tend to offer smaller awards at verdict than jurors in more urban areas. Though this is often the case, this notion can be more perception than reality since so few cases actually make it all the way to verdict in these rural areas.
In an attempt to preclude the jury from hearing the significant facts of the case, an admission of liability and causation was offered by the Defense in this case days before trial and the issue that was left to dispute was the damages. In addition to the loss of an eye, at trial, Mr. and Mrs. Burrell intended to testify that a significant portion of their mental anguish had been and continues to be caused by the knowledge that over the course of 7-years, Mr. Burrell did everything that was asked of him: He submitted to four medical examinations by Dr. Lauren; and at each of those examinations, Dr. Lauren claims to have performed and charged for the routine test designed specifically to recognize an iris nevus. However, Mr. and Mrs. Burrell were left with the chilling knowledge that at each of those visits, Dr. Lauren’s carelessness was only serving to increase Mr. Burrell’s chances of losing his eye and increasing the risk that Mr. Burrell would experience a premature death from metastatic disease. This was no small part of the emotional harm suffered by the Plaintiffs in this case.
After picking a jury, we resolved the case for a 7-figure settlement.