Issue: A claim against an ophthalmologist for failure to diagnose retinal detachment, resulting in total loss of vision in the right eye. The primary issue concerned a factual dispute as to whether the ophthalmologist had dilated the plaintiff’s pupils in order to conduct a proper ophthalmic examination in respect of the plaintiff’s reported symptoms.
Action: the matter was required to be taken to trial because the defence was not prepared to make any offer of settlement, notwithstanding the fact that the plaintiff had offered to compromise his case by 50% on account of the factual dispute. The defence alleged that due to the elderly age of the plaintiff (80’s), his memory regarding the examination was not reliable. In acting for the plaintiff we were confident of the accuracy of his instructions, primarily by reason of the fact that he had driven himself home from the appointment in circumstances where this would have been impossible if his pupils had in fact been dilated, as alleged by the defendant. As a matter of strategy, an offer of compromise for 50% was made and rejected.
Outcome: The matter was settled after day 3 of the trial, on terms favourable to the plaintiff. The defendant was subpoenaed for the balance of her patient records seen on the same day as the plaintiff, to test her memory in light of the “textbook” answers to interrogatories yet brief contemporaneous notes made in respect of the plaintiff.