Exposing the LASIK Scam

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Who bears the most responsibility for the damage to Cheryl Atchison's eyes?
VISX 60%  60%  [ 3 ]
Laser Vision Centers 40%  40%  [ 2 ]
Dr. Tom Morrison 0%  0%  [ 0 ]
Tri-Lakes Eye Center 0%  0%  [ 0 ]
Total votes : 5
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 Post subject: VISX & Dr. Tom Morrison sued by Cheryl Atchison
PostPosted: Wed Feb 22, 2006 3:23 am 
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IN THE CIRCUIT COURT OF TANEY COUNTY, MISSOURI

CHERYL ATCHISON
Plaintiff,

vs.

VISX, INCORPORATED,
LASER VISION CENTERS, INC.,
TOM V. MORRISON, M.D.,
TRI-LAKES MEDICAL AND
SURGICAL EYE CLINIC, INC.,
d/b/a TRI-LAKES EYE CENTER,

Defendants.

Case No.: 04AFCV00676

SECOND AMENDED PETITION

COUNT I

COMES NOW plaintiff and for Count I of her cause of action against defendants, and each of them, alleges and states as follows:

1. The cause of action stated in this Petition accrued in Taney County, Missouri.

2. At all times mentioned herein, defendant Tri-Lakes Medical and Surgical Eye Clinic, Inc., d/b/a Tri-Lakes Eye Center (hereinafter referred to as "Tri-Lakes Eye Center") was a corporation organized and existing under the laws of the state of Missouri with its principal office and place of business in Taney County, Missouri. It does business under the name Tri-Lakes Eye Center. The name and address of its registered agent is Tom V. Morrison, M.D., 101 Skaggs Road, Suite 201, Branson, Missouri 65616.

3. At all times mentioned herein, defendant Laser Vision Centers, Inc. (hereinafter referred to as "Laser Vision") was a corporation organized and existing under the laws of the state of Delaware with its principal office and place of business in St. Louis, Missouri. The name and address of its registered agent is Robert W. May, 540 Maryville Center Drive, Suite 200, St. Louis, Missouri 63141.

4. The defendant VISX, Incorporated (hereinafter referred to as "VISX") is a corporation doing business and capable of suing and being sued in the state of Missouri. The name and address of the registered agent of said corporation is the corporation company, 120 S. Central, Clayton, Missouri 63105. In the preceding pleadings, said defendant was designated as VISX, Inc..

5. Defendant Tom V. Morrison, M.D. (hereinafter referred to as "Morrison"), at all times mentioned herein, was a licensed physician specializing in ophthalmology, who held himself out as being able to perform LASIK eye surgery.

6. At all times mentioned in this Petition, defendant Morrison was the agent, servant and employee of (1) defendant Tri-Lakes Eye Center, and/or (2) the joint venture described in this Petition, and was acting within the course and scope of each those agencies.

7. At all times mentioned in this Petition, defendants Tri-Lakes Eye Center and Laser Vision Centers, Inc. were engaged in a joint venture to provide LASIK services to the public. Defendant Laser Vision Centers, Inc. would provide the machine and laser used to do the surgery, a technician and marketing, as well as some support staff, and Tri-Lakes Eye Center would provide the physician, some equipment, other support staff, and facilities to conduct the surgery. The fees would be shared according to a specific agreement. Therefore, any negligence of defendant Laser Vision Centers, Inc., as described in this Petition is imputed to defendant Tri-Lakes Eye Center, and any negligence of defendant Tri-Lakes Eye Center or Morrison as described in this Second Amended Petition is imputed to defendant Laser Vision Centers, Inc..

8. At all times mentioned herein, defendant Laser Vision Centers, Inc. was engaged in the business of furnishing, calibrating and maintaining the machine and computer used during plaintiff?s surgery.

9. At all times mentioned in this Petition, defendant VISX was engaged in the business of designing, manufacturing, selling, renting, leasing, maintaining, furnishing, and servicing the type of equipment used during plaintiff?s surgery.

10. On or about October 28, 2002, defendant Morrison performed LASIK surgery on both eyes of plaintiff at defendant Tri-Lakes Eye Center using the machine and computer furnished, maintained , and calibrated by Laser Vision Centers, Inc.. This machine and computer were designed, manufactured, sold, rented or leased, maintained, and serviced by defendant VISX.

11. The LASIK surgery was first performed on plaintiff?s right eye. While approximately midway through performing the LASIK surgery procedure on the left eye, defendant Morrison and Tri-Lakes discontinued the procedure. The laser stopped prematurely and/or the fluence became out of range causing an asymmetric treatment, furrow or trough in the stroma and/or more ablation to be received in a portion of the left eye of plaintiff when the surgery was being performed, causing damage to her eye.

12. Such stopping and/or malfunction does not occur without negligence on the part of the person or entity manufacturing, designing, using, calibrating, maintaining, servicing, or operating the machine. The machine was under the control of defendants, and each of them, at the time of plaintiff?s injury.

13. As a result of the negligence of defendants, and each of them, plaintiff?s left eye sustained damage. The vision in plaintiff?s left eye is blurring and causes her to see double or triple and causes lights to spray out. Plaintiff also suffers from pain in her left eye and headaches. The quality and correctness of plaintiff?s vision in her left eye has decreased. Plaintiff has double vision and cannot see well at night, and requires more light for vision on the left eye. She has been rendered nervous and has suffered pain and anxiety of body and mind and has experienced emotional upset and personality changes. She has suffered all of the above injuries, pain and damages since the date of the incident and suffers them at the present time, and will suffer them in the future, said injuries, pain and damages being permanent, disabling and progressive.

14. Prior to the aforesaid injuries, plaintiff Cheryl Atchison was an able bodied woman capable of doing and performing work and labor. As a direct and proximate result of her injuries, she has, and in the future, will suffer loss of wages, earnings, salaries, and profits; and she has, and in the future, will suffer an impaired and diminished capacity for work, labor and pleasure.

15. By reason of her injuries, plaintiff Cheryl Atchison has paid or become obligated for, and in the future will pay or become obligated for, items of expense in obtaining and receiving medical care and treatment.

16. As a direct result of the negligence of defendants, and each of them, plaintiff Cheryl Atchison has been damaged and is entitled to such damages as are fair and reasonable.

WHEREFORE, plaintiff Cheryl Atchison prays damages against defendants, and each of them, on this Petition, for such damages as are fair and reasonable, and for her costs herein expended.

COUNT II

COMES NOW plaintiff and for Count II of her cause of action against defendant VISX, Incorporated (referred to as "VISX"), alleges and states as follows:

17. Realleges and restates all of paragraphs 1, thru 11 of Count I of this Petition and incorporates each of said paragraphs herein by reference.

18. At all times mentioned in this petition, defendant VISX engaged in the business of designing, manufacturing, selling, leasing or furnishing LASIK machine for the performance of LASIK surgery.

19. Defendant VISX manufactured, designed, and/or sold, leased, rented or furnished a machine and computer to perform LASIK surgery (hereafter referred to as "LASIK equipment"). It sold the machine and computer, or leased or rented it to defendant Laser Vision knowing that it would be utilized in performing surgery on the public, including plaintiff.

20. The LASIK?s equipment was defective, and therefore, unreasonably dangerous, when put to a use reasonably anticipated, in that it stopped prematurely and/or allowed the fluence to become out of range and/or caused an asymmetric treatment or a furrow or trough in the stroma and/or caused more ablation to be received in a portion of the left eye of plaintiff when the surgery was being performed. The said defective and dangerous condition existed when the LASIK equipment was manufactured, sold, and/or rented, leased, or furnished by defendant VISX, and used by defendant Laser Vision Centers, Inc., and/or Tri-Lakes Eye Center.

21. At the time of the incident described in this petition, the LASIK equipment was:

Being used in a manner reasonably anticipated;
In substantially the same condition as when manufactured, sold, rented, and/or leased or furnished by defendant VISX.
22. As a direct and proximate result of the defective and unreasonably dangerous condition of the LASIK equipment when the LASIK equipment was sold, rented, and/or leased, or furnished by VISX, plaintiff?s left eye sustained damage. The vision in plaintiff?s left eye is blurring and causes her to see double or triple and causes lights to spray out. Plaintiff also suffers from pain in her left eye and headaches. The quality and correctness of plaintiff?s vision in her left eye has decreased. Plaintiff has double vision and cannot see well at night, and requires more light for vision on the left eye. She has been rendered nervous and has suffered pain and anxiety of body and mind and has experienced emotional upset and personality changes. She has suffered all of the above injuries, pain and damages since the date of the incident and suffers them at the present time, and will suffer them in the future, said injuries, pain and damages being permanent, disabling and progressive.

23. Prior to the aforesaid injuries, plaintiff Cheryl Atchison was an able-bodied woman capable of doing and performing work and labor. As a direct and proximate result of her injuries, she has, and in the future, will suffer loss of wages, earnings, salaries, and profits; and she has, and in the future, will suffer an impaired and diminished capacity for work, labor and pleasure.

24. By reason of her injuries, plaintiff Cheryl Atchison has paid or become obligated for, and in the future will pay or become obligated for, items of expense in obtaining and receiving medical care and treatment.

25. By reason of all the foregoing, plaintiff Cheryl Atchison has been damaged and is entitled to such damages as are fair and reasonable.

WHEREFORE, plaintiff Cheryl Atchison prays damages against defendant VISX, on Count II this Petition, for such damages as are fair and reasonable, and for her costs herein expended.

COUNT III

COMES NOW plaintiff and for Count III of her cause of action against defendants Laser Vision Centers, Inc., alleges and states as follows:

26. Realleges and restates all of paragraphs 1 thru 11 of Count I of this Petition and incorporates each of said paragraphs herein by reference.

27. At all times mentioned in this petition, defendants Laser Vision Centers, Inc. engaged in the business of furnishing LASIK equipment to physicians (said equipment being that described in Count II, but also including a calibrated computer) for use with LASIK surgery. This included the equipment used to perform the surgery on plaintiff.

28. The LASIK equipment furnished for the surgery on plaintiff was defective, and therefore, unreasonably dangerous when put to the reasonably anticipated use in that it stopped prematurely and/or allowed the fluence to become out of range and/or caused an asymmetric treatment or a furrow or trough in the stroma and/or caused more ablation to be received in the inferior portion of the left eye of plaintiff when the surgery was being performed. The said defective and dangerous condition existed when the LASIK equipment was furnished to defendant Morrison, and when used in plaintiff?s surgery.

29. At the time of the incident described in this Petition, the LASIK equipment was:

Being used in a manner reasonably anticipated; and
In substantially the same condition as when furnished for use in plaintiff?s surgery.
30. As a direct and proximate result of the defective and unreasonably dangerous condition of the LASIK equipment when the LASIK equipment was furnished by said defendant, plaintiff?s left eye sustained damage. The vision in plaintiff?s left eye is blurring and causes her to see double or triple and causes lights to spray out. Plaintiff also suffers from pain in her left eye and headaches. The quality and correctness of plaintiff?s vision in her left eye has decreased. Plaintiff has double vision and cannot see well at night, and requires more light for vision on the left eye. She has been rendered nervous and has suffered pain and anxiety of body and mind and has experienced emotional upset and personality changes. She has suffered all of the above injuries, pain and damages since the date of the incident and suffers them at the present time, and will suffer them in the future, said injuries, pain and damages being permanent, disabling and progressive.

31. Prior to the aforesaid injuries, plaintiff Cheryl Atchison was an able-bodied woman capable of doing and performing work and labor. As a direct and proximate result of her injuries, she has, and in the future, will suffer loss of wages, earnings, salaries, and profits; and she has, and in the future, will suffer an impaired and diminished capacity for work, labor and pleasure.

32. By reason of her injuries, plaintiff Cheryl Atchison has paid or become obligated for, and in the future will pay or become obligated for, items of expense in obtaining and receiving medical care and treatment.

33. By reason of all the foregoing, plaintiff Cheryl Atchison has been damaged and is entitled to such damages as are fair and reasonable.

WHEREFORE, plaintiff Cheryl Atchison prays damages against defendants Laser Vision Centers, Inc., on Count III this Petition, for such damages as are fair and reasonable, and for her costs herein expended.

COUNT IV

COMES NOW plaintiff and for Count IV of her cause of action against defendant VISX Incorporated, and Laser Vision Centers, Inc., and each of them, alleges and states as follows:

34. Realleges and restates all of Counts II and III of this Petition and incorporates each of said paragraphs herein by reference.

35. The equipment was unreasonably dangerous when sold, leased, rented, or furnished by defendant VISX Incorporated, and when furnished by Laser Vision Centers, Inc. when put to a reasonably anticipated use without knowledge of its characteristics.

36. Said defendants, and each of them, did not give adequate warning of the danger that it might stop prematurely and/or the fluence might became out of range causing an asymmetric treatment, furrow or trough in the stroma and/or cause more ablation to be received in a portion of the left eye of plaintiff when the surgery was being performed, causing damage to her eye.

37. As a direct and proximate result of the product being sold, rented, leased, and/or furnished for surgery on plaintiff without inadequate warning, plaintiff?s left eye sustained damage The vision in plaintiff?s left eye is blurring and causes her to see double or triple and causes lights to spray out. Plaintiff also suffers from pain in her left eye and headaches. The quality and correctness of plaintiff?s vision in her left eye has decreased. Plaintiff has double vision and cannot see well at night, and requires more light for vision on the left eye. She has been rendered nervous and has suffered pain and anxiety of body and mind and has experienced emotional upset and personality changes. She has suffered all of the above injuries, pain and damages since the date of the incident and suffers them at the present time, and will suffer them in the future, said injuries, pain and damages being permanent, disabling and progressive.

38. Prior to the aforesaid injuries, plaintiff Cheryl Atchison was an able-bodied woman capable of doing and performing work and labor. As a direct and proximate result of her injuries, she has, and in the future, will suffer loss of wages, earnings, salaries, and profits; and she has, and in the future, will suffer an impaired and diminished capacity for work, labor and pleasure.

39. By reason of her injuries, plaintiff Cheryl Atchison has paid or become obligated for, and in the future will pay or become obligated for, items of expense in obtaining and receiving medical care and treatment.

40. By reason of all the foregoing, plaintiff Cheryl Atchison has been damaged and is entitled to such damages as are fair and reasonable.

WHEREFORE, plaintiff Cheryl Atchison prays damages against defendant VISX, and defendant Laser Vision Centers, Inc., on Count IV this Petition, for such damages as are fair and reasonable, for her costs herein expended and for such other and further relief as the Court may deem just and fair in the premises.

PLACZEK & FRANCIS

By: _____________________
MATHEW W. PLACZEK
Missouri Bar No. 24819
ANGELA DESANCTIS MYERS
Missouri Bar No. 53935
1722 S. Glenstone, Suite J
Springfield, MO 65804
Phone: 417-883-4000
Attorneys for plaintiff.
Posted by Admin at February 21, 2006 08:05 PM


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