In a closely watched medical malpractice case, the District Court for Jefferson County awarded $8.03 million against LASIK provider LASIKPlus in April, raising questions about corporate oversight in elective medicine and the limits of Colorado’s damages cap.
The case, Nicholas Lara v. Gary Bircham, O.D., and LCA-Vision, Inc. d/b/a LASIKPlus, involves a 24-year-old commercial pilot whose career ended after developing post-LASIK ectasia, an incurable corneal condition. Federal aviation standards require pilots to maintain strict vision thresholds. At trial, jurors found LASIKPlus failed to implement adequate preoperative screening policies and training, allowing a patient with contraindications to proceed. Evidence also showed diagnostic warning flags on an ophthalmic device were altered or overridden.
The verdict included $7.2 million in future economic losses tied to lost earning capacity. In a post-trial ruling, the court allowed recovery beyond Colorado’s $1 million economic damages cap under the Health Care Availability Act.
Law Week Colorado spoke with plaintiff’s counsel Todd Krouner, of the Law Office of Todd J. Krouner, about the litigation strategy, evidentiary challenges and implications of the ruling:
Law Week Colorado: The jury found LASIKPlus negligent for failing to implement adequate policies and procedures regarding training and preoperative screening. Why did you choose to focus on corporate-level policy failures rather than solely on the individual optometrist’s clinical error?
Krouner: We did both. However, this case was about more than one provider’s judgment. It was about a corporate model that allowed preventable risk to reach the patient.
LWC: Evidence at trial showed that critical warning flags on an ophthalmic device had been disabled to decrease the “index of suspicion” for ectasia. How did you uncover this through discovery, and what was the jury’s reaction to the idea of safety features being intentionally silenced?
Krouner: Through discovery our ophthalmology expert requested the raw Pentacam data (“U12”). When he reviewed it, he found the settings had been changed from the manufacturer’s defaults. Under those altered settings, the scan reflected only one warning flag. When the default settings were restored, six warning flags appeared. Clearly, the jury understood the seriousness of disabling diagnostic safeguards designed to protect patients.
LWC: In most medical malpractice cases, a slight reduction in visual acuity might be considered a minor injury. However, for a commercial pilot, it is career-ending. How did you approach the expert testimony to ensure the jury understood that nearly perfect vision was a total disability in the context of Mr. Lara’s profession?
Krouner: Context was critical. For most people, a slight reduction in vision may be imperceptible. For a commercial pilot, visual precision is an occupational requirement. Therefore, we framed the injury not in abstract medical terms but in the real-world context of a profession where anything less than 20/20 best-corrected visual acuity can end a career.
LWC: The court granted your motion to exceed the HCAA’s $1 million cap on economic damages. What specific evidence regarding the progressive nature of post-LASIK ectasia was most persuasive in convincing the court that applying the cap would be unfair?
Krouner: The evidence reflected a young plaintiff facing permanent impairment, the loss of a highly specialized earning capacity and decades of projected vocational harm. The court also heard compelling testimony regarding the daily consequences of the injury. In combination, those facts supported the conclusion that strict application of the cap would be inequitable.
LWC: The defendant argued that exceeding the HCAA cap requires a showing of a catastrophic injury. The court rejected this. What does this ruling mean for future Colorado plaintiffs who suffer high-economic-loss injuries that may not fit the traditional catastrophic molds?
Krouner: In legal terms, the trial judge correctly reasoned that courts must apply the statute as written. The inquiry is whether good cause exists, and whether application of the cap would be unfair under the facts presented.
In practical terms, the trial judge correctly recognized the reality that the permanent, serious injuries in this case were life-altering.
Consequently, the trial court’s well-reasoned decision is highly encouraging for future Colorado plaintiffs who suffer permanent and substantial economic losses that may not fit defendants’ phantom catastrophic standard.
LWC: During the trial, you characterized the LASIKPlus high-volume business model as “profit over safety.” How do you balance that narrative without making the case feel like a punitive damages claim, especially when focusing on the standard of care?
Krouner: Our focus exclusively remained on negligence and the standard of care. The relevant question was whether operational and financial incentives interfered with appropriate policies and procedures that should have ensured patient safety. The evidence demonstrated that business pressures eroded safeguards and the verdict speaks for itself.
LWC: The jury awarded $7.2 million in future economic loss for a 24-year-old. Can you walk us through your strategy for presenting the life-care plan and the lost-earning-capacity calculations for a plaintiff at the beginning of a specialized career?
Krouner: We kept it straightforward and fact-based. Our economist used undisputed evidence regarding Mr. Lara’s age, earning trajectory and work-life expectancy as a commercial pilot. Once the jury understood the magnitude of the career loss and the conservative methodology used to calculate present value, the damages figure logically followed.
LWC: This verdict sends a strong message regarding contraindicated elective procedures. What is a lesson medical communities and their legal counsel could take from the case?
Krouner: Elective medicine requires strict adherence to screening standards and conservative patient selection. When procedures are optional, the obligation to avoid preventable harm is especially important. Common sense and this verdict reflect that, particularly with an elective medical procedure, health care providers should be especially vigilant to the Hippocratic Oath’s first rule of medicine: “First, do no harm.”