In a decision that is likely to establish a legal standard for future lawsuits over incidents of toxic anterior segment syndrome (TASS), a court has rejected a patient's argument that a surgeon and hospital are liable for the post-op inflammation that blinded her in one eye even though she didn't have evidence to prove it.

At Cayuga Medical Center in Ithaca, N.Y., ophthalmologist Robert Arleo, MD, implanted an artificial lens in Faye Cafferty's left eye. She was diagnosed afterwards with moderate to severe TASS, an inflammation from foreign matter that entered the anterior chamber of the eye. TASS permanently damages the eye. Ms. Cafferty's left eye is now "functionally" blind, her vision obscured as though she is looking through wax paper.

Ms. Cafferty sued the surgeon and hospital for damages. But because TASS tends to present 24 to 48 hours after surgery, it was impossible to confirm the cause, says Oliver N. Blaise III, Ms. Cafferty's attorney. Instruments for the surgery are either disposable or must be quickly re-sterilized. "By the time you recognize TASS," he says, "the evidence has been cleaned multiple times or destroyed."

Lacking clear evidence of the cause, the lawsuit cited the legal doctrine of res ipsa loquitur which is used to establish an evidentiary link when no clear evidence exists. For example, Mr. Blaise says, another New York lawsuit involving a spinal column infection successfully cited res ipsa loquitur to link the infection to a high likelihood that one of the instruments used in surgery was contaminated.

Res ipsa loquitur cases depend heavily on expert witnesses debating medical probabilities. Ms. Cafferty's expert witness would not rule out other causes but agreed that contaminated instruments were the most likely cause. The hospital's expert witness, however, said he had examined many TASS cases where no negligence was found. He added that in Ms. Cafferty's case, negligent handling of the instruments before delivery to the hospital could have caused the TASS.

The jury ruled that res ipsa loquitur did not apply, noting that none of the medical experts, not even the plaintiff's, could identify a specific cause of the TASS. The defendants were found not liable. Afterward, Mr. Blaise asked the judge to review the jurors' reasoning to determine if it had been proper. But the judge sided with the jury, finding that it had reviewed all the evidence and, as a rule, its assessment should not be second-guessed.

Mr. Blaise says the case was the first TASS negligence lawsuit citing res ipsa loquitur to go all the way to trial. Therefore, the judge's ruling and legal reasoning will be used in upcoming TASS negligence cases. John J. Pollock, an attorney for Cayuga Medical Center, and James F. Moran, an attorney for Dr. Arleo, did not respond to requests for comment.

Leigh Page