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Ratcliff v. Graether5/13/2005
hat did Dr. Mauer tell you he thought was wrong with your left eye when you saw him in December of 1997?
A: He told me that he thought that the surface of my cornea was irregular.
Q: And did he offer an opinion to you that that was probably related to the LASIK surgery that you had had on your left eye?
A: I think he was careful not to accuse anybody of anything. But that was clearly the message that I got.
Q: All right. So he made it clear to you that--or at least the impression that you had when you left his office in December of 1997 was that the LASIK procedure that you had had on April 30 of 1997 had caused some irregularity in your cornea; correct?
A: Yes, that's correct.
Q: So in the December visit of 1997 with Dr. Mauer, you believe that your problem was vision in your left eye related to an irregularity of your cornea; correct?
A: That's correct.
Q: But in December of 1997, you left Dr. Mauer's office with the impression that the April 30, 1997 LASIK procedure was the cause of your visual problems?
A: Yes.
Mauer examined Ratcliff on several occasions from December 23, 1997 through February 14, 2002.
Ratcliff saw Gothard on November 18, 1998, and Gothard's medical notes of that visit state:
[Ratcliff] apparently had gotten a second opinion sometime since the last visit when I saw him, with Dr. Mauer who told him he had no effect or very little effect from the cataract and that it was mainly a problem with the LASIK surgery that was causing his vision to be blurry. . . .
He is absolutely convinced that the LASIK surgery on the OS has made the cataract and also made his vision blurry. I have told him that there is absolutely no known association between LASIK and cataract formation. He was extremely confrontational and said that there is no way that we can know for sure that this did not cause the cataract, or cause his vision to be blurry. . . . e really has his mind made up already regarding the cause of his problem. He is very reluctant to get glasses. He says the surgery was an entire waste, and now he has poor vision. I've told him that he may have had a mild amount of myopic regression from the surgery, but I would be a little reluctant to perform any additional laser surgery at this juncture due to the fact that there is a cataract forming and the refraction has been changing.
On November 20, 1998, Graether wrote Ratcliff telling him that the cataract was "merely coincidence" and had nothing to do with the surgery to the eye. Graether also wrote that because of the developing cataract no further refractive surgery should be done to improve Ratcliff's vision. " ny improvement," wrote Graether, "would only be transient."
In a letter dated February 22, 2002, Mauer opined that Ratcliff's poor vision was due to an irregular astigmatism. He attributed the condition to several factors, including the surgical procedures employed to treat Ratcliff's left eye.
II. Proceedings
On November 16, 2000, Ratcliff sued Graether and Wolfe Clinic. Ratcliff alleged that the defendants combined different procedures in a two-step process in their attempt to correct the myopia of negative ten diopters in his left eye. He further alleged that such process had not been studied or approved by the FDA. Ratcliff also alleged that he would not have consented to such a procedure if he had known these facts, and the defendants suppressed the information to get him to consent.
The defendants asserted a number of affirmative defenses, one of which is the subject of this appeal: Ratclif
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