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EISNER v. FIELDS9/8/1999
On May 12, 1999, this court handed down an unpublished opinion in this case in which we reversed the judge's order granting appellee Ron Fields a new trial and dismissed the appeal. The appellee has filed a petition for rehearing, and, in response to that petition, we issue this substituted opinion and deny appellee's petition.
Appellee Ron Fields filed a lawsuit against Fort Smith ophthalmologist Richard Eisner and his clinic, Equivision, Inc., contending that Dr. Eisner committed medical malpractice when he negligently performed bilateral radial keratotomy surgery on appellee, resulting in the development of an infection in his left eye. Radial keratotomy surgery, commonly referred to as RK surgery, is performed to improve the vision of a person who is nearsighted. A jury sitting in the circuit court of Sebastian County returned a verdict absolving Dr. Eisner and his clinic of all liability. Following the entry of the judgment, appellee filed a motion for a new trial pursuant to Ark. R. Civ. P. 59. The circuit judge granted appellee's motion, stating that the jury's verdict was clearly contrary to the preponderance of the evidence. It is from the granting of that motion that appellants bring this appeal contending that the judge abused his discretion by granting a new trial. We agree that the judge abused his discretion, and we reverse and dismiss.
Appellee Fields testified at trial that he met with Dr. Eisner on December 16, 1994, to discuss the RK procedure and learn what results he could expect from the surgery. Appellee stated that he was nearsighted and wore glasses. During appellee's evaluation, Dr. Eisner discussed with appellee the use of an Excimer laser, which was a new technique. However, because the laser did not have FDA approval, Dr. Eisner recommended RK surgery. Appellee stated that Dr. Eisner told him that he would make eight incisions on each of his eyes and that if his vision did not improve to 20/20, Dr. Eisner would consider doing an "enhancement" surgery. Appellee stated that he understood that Dr. Eisner would perform eight cuts during the first surgery, and that if an enhancement was needed, Dr. Eisner would perform an additional eight cuts, for a total of sixteen cuts in each eye. Appellee testified that appellant informed him that, because appellee's right eye was
considered to be much weaker than his left eye, in all likelihood he would need an enhancement on his right eye. Dr. Eisner also explained to appellee that he would prescribe medications after the surgery that would prevent infections and would cause the eye not to heal as quickly, which would allow appellee's eyeballs to adjust in the correct position before they became solidified.
On December 20, 1994, before Dr. Eisner performed surgery on appellee, appellee was shown a videotape that explained the procedure, the risks involved, and the results that could be obtained from the procedure. The videotape, which was introduced into evidence, stated that patients undergoing RK surgery are to use antibiotic eye drops for the first week after surgery to reduce the risk of infection. The tape also explained that an infection is always a possibility and could lead to blindness or the loss of an eye. It did state that the risk of those complications is rare.
After his surgery, appellee was given an antibiotic and a combination antibiotic and steroid, Tobradex, and he was told to return the next day for a follow-up visit. Appellee testified that his vision was substantially improved by the next day. However, he stated that his right eye began to get a little worse from visit to visit, but, overall, his vision was markedly improved. It was during the follow-up visits that Dr. Eis
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