By Susan Smallheer
Published in the Barre Montpelier Times Argus | October 10, 2015
MONTPELIER — The Vermont Supreme Court has ruled in favor of a Perkinsville man who lost the sight in his left eye because of an infection he got immediately after cataract surgery performed by Dr. Richard Lane, of Springfield.
The court ruled that two lower court judges erred when they granted a motion for summary judgment in favor of Lane over the complaint brought by Dow Tillson and his wife.
The court decision, written by Chief Justice Paul Reiber, said the summary judgment dismissal was premature and reversed the earlier decisions by Judges Mary Miles Teachout and Theresa S. DiMauro. The court sent the complaint back to Windsor Superior Court for continued hearings.
According to the decision, Tillson had chosen to have a cataract removed from his left eye. Lane performed the surgery at Springfield Hospital, and within 24 hours of surgery, Tillson developed an eye infection.
“Dr. Lane made a presumptive diagnosis of endophthalmitis, but did not refer Mr. Tillson to a retinologist for treatment. Within 48 hours of surgery, Mr. Tillson was permanently blind in his left eye,” the Supreme Court decision said.
The high court wrote that an expert hired by the Tillsons, Dr. Jonathan Javitt, of Johns Hopkins University School of Medicine, was “sufficient evidence to withstand a motion for summary judgment.”
Javitt has written multiple articles on endophthalmitis as well as cases of infections caused by enterococcus faecalis.
His testimony stated that he believed if Tillson had been referred to an expert, his eyesight loss likely would not have been complete in the eye.
Javitt’s testimony was incorrectly labeled “loss-of-chance” evidence rather than that Tillson’s injury was caused by a “departure from the standard of care.”
Teachout granted the motion for summary judgment in September 2014, and the Tillsons appealed.
“The superior court believed Dr. Javitt’s testimony lacked specific information about the result of the negligence,” the high court noted. But a summary judgment motion should not be granted
when there is a difference of expert opinion, Reiber wrote.
Michael Gannon, of Affolter Gannon of Essex Junction, who represented the Tillsons, said Friday he had talked with his client, who he said was “very satisfied.”
“We’re quite pleased. It’s been a long time,” said Gannon.
Keith Aten, of Theriault & Joslin of Montpelier, represented Lane and Lane Eye Associates. He couldn’t be reached for comment Friday.
The lawsuit claimed that Lane and Lane Eye Associates had failed to “adequately and timely recognize, diagnose and treat the infection.” Tillson had also incurred medical bills, as well as pain and suffering and psychological stress, as a result of his loss of vision in his eye. His wife, Susan Tillson, suffered loss of consortium, as well as economic loss, as did her husband.