Sam Knef May 31, 2017, 10:43am


ST. LOUIS — The Missouri Court of Appeals, Eastern District has upheld a judgment in favor of Pepose Vision Institute in a medical malpractice case that went to trial twice in St. Louis County Circuit Court.

In a ruling filed on May 23, the appeals court was not persuaded by arguments raised by plaintiff Jaynee Will, who had sued in 2011 claiming doctors at Pepose failed to conform to the standard of care in performing bilateral Lasik surgery in 2003 and in its followup care.

In March 2005, after noticing a large floater making a line across her right eye, Will sought care from Barnes Retina Institute, the ruling states. There, she was diagnosed with retinal detachment and a large retinal tear in her right eye.

A month earlier, during an exam at Pepose, her retinas were documented as "normal," the ruling notes.

On the same day she sought care at Barnes, she underwent vitrectomy surgery to repair her detachment

"Will unfortunately experienced a complication from the surgery that ultimately resulted in the loss of her right eye in 2011," the ruling states.

After a first trial concluded, the jury found in favor of Pepose. But, the trial court judge granted Will's request for a new trial, finding the verdict was against the weight of evidence.

The Missouri Court of Appeals affirmed the verdict on appeal.

In the second trial, which took place in September 2015, the jury again found in favor of Pepose, leading to another appeal.

Will argued that certain statements made by defense counsel during closing arguments "misrepresented the evidence," and that the trial court "plainly erred" in allowing it.

She also argued that the trial court abused discretion in excluding evidence of "witness tampering" by Pepose, which she claimed prejudiced her, the ruling states.

The three-judge panel that included Judge Gary Gaertner Jr., presiding Judge James Dowd and Judge Kurt Odenwald found that the trial court did not "plainly err" by not intervening in Pepose's closing arguments "because the argument was based on evidence before the jury."

The panel also found that the trial court abused its discretion in failing to admit evidence that one of Pepose's medical expert witnesses contacted one of Will's. But the panel concluded that Will did not show that she was prejudiced by that exclusion.

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