Date: 11-12-2014

Case Style: Howard Brown v. Steven R. Sarkisian, Jr., M.D., The Dean Mcgee Eye Institute, and State Of Oklahoma Ex Rel University Of Oklahoma Health Sciences Center

Case Number:

Judge: CJ-2013-5524

Court: Barbara G. Swinton

Plaintiff's Attorney: Mark Cooper

Defendant's Attorney: Hilton Walters and Neel Natarajan

Description: Howard Brown, for his cause of action against defendants, alleges and states as follows:
1. Howard Brown isa resident of Cleveland County. Steven R. Sarkisian, Jr. is an eye surgeon who practices in Oklahoma County and who is a Clinical Assistant Professor for the University of Oklahoma. The Dean McGee Eye Institute is an Oklahoma corporation duly authorized and actually transacting business in Oklahoma County. The conduct giving rise to this cause of action occurred in Oklahoma County.
2. On or about March 15, 2012, Howard Brown signed a General Consent for Medical And Surgical Procedures. Before signing the document, Dr. Sarkisian explained Brown’s condition as being a Primary Open Angle Glaucoma for which he proposed a revision of drainage implants with possible grafts. At no time while obtaining Brown’s informed consent was Dr. Sarkisian engaged in teaching duties for the State of Oklahoma.
3. The ensuring procedure was performed by Dr. Sarkisian on March 19, 2012. During the procedure, Dr. Sarkisian performed an additional procedure to which Brown did not give his informed consent. Dr. Sarkisian’s Operative Note identified the procedure as a Cyclophotocoagulation (CPC) which utilized a powerfUl laser.
4. Brown awoke during the unauthorized Cyclophotocoagulation at which time he experienced severe and excruciating pain. He fUrther experienced vision loss as a result of the unauthorized procedure and has been deemed legally blind. Dr. Sarkisian’s performance of the Cyclophotocoagulation constituted a battery and fUrther fell below accepted standards of medical care thereby resulting in permanent injury and blindness to Brown.
5. Dr. Sarkisian performed the Cyclophotocoagulation without explaining to
Brown the availability of canaloplasty, a much more conservative treatment which does not require use of a powerful laser. Brown would not have consented to the Cyclophotocoagulation had he been fully informed of the treatment alternatives and the reasonably foreseeable risks.
6. Following the Cyclophotocoagulation, Brown requested a cop) of the General Consent For Medical and Surgical Procedures which he had previously executed on March 15, 2012. The copy provided to him contained a handwritten modification identifing the “CPC” procedure which was not present on the original document. Dr. Sarkisian and/or reprcsentatives of the Dean McGee Eye Institute altered the document in an effort to conceal Howard’s lack of informed consent. Dr. Sarkisian’s Pre-op Orders for Glaucoma Surgery were likewise altered in an effort to conceal Howard’s lack of informed consent.
6. It is believed Dr. Sarkisian, while performing the unauthorized Cyclophotocoagulation, was assisted by a physician in residency and was thus engaged in teaching duties for the University of Oklahoma, ex. rd., University of Oklahoma Health Sciences Center when the unauthorized and negligent Cyclophotocoagulation was performed. If so, he was an employee of the State of Oklahoma as defined by 51 O.S. §151(7)(b)(3) thereby rendering the State of Oklahoma vicariously liable under the doctrine of respondeat superior for any breaches of applicable standards of care.
7. Brown, through counsel, submitted a Notice of Tort Claim which was received by the State of Oklahoma on or about March 3, 2013. The tort claim was denied on April 25, 2013. This case was filed within one-hundred and eighty (180) days of the denial.
8. Dr. Sarkisian, regardless of whether engaged in teaching duties, was at all times an employee and/or agent of the Dean McGee Eye Institute thereby rendering the Dean McGee Eye Institute vicariously liable for his actions under the doctrine of respondeat superior.
9. Dean McGee Eye Institute is independently liable since it did not reasonably ensure that Howard’s informed consent had been obtained prior to the unauthorized Cyclophotocoagulation performed by Dr. Sarkisian.
WHEREFORE, Howard Brown requests that judgment be entered in his favor and against defendants for a sum in excess of the amount required for diversity jurisdiction pursuant to 28 U.S.C. § 1332; that he be awarded punitive damages; and that he be granted all interest and costs incurred in prosecuting the matter.

ANSWER OF THE DEFENDANT
STEVEN R. SARKISIAN, JR., M.D.
COMES NOW the defendant, Steven R. Sarkisian, Jr., M.D., (“Dr. Sarkisian”) and for his answer to plaintiffs petition, alleges and states as follows:
1. Dr. Sarkisian denies generally and specifically each and every material allegation contained in plaintiffs petition, except such allegations as are hereinafter specifically admitted.
2. Dr. Sarkisian admits the allegations contained in the second sentence of paragraph 1 of plaintiffs petition. The remaining allegations do not pertain to Dr. Sarkisian and therefore no response to them is called for by him or he is without information or knowledge sufficient to form a belief as to the truth of the allegations.
3. In response to paragraph 2 of plaintiff’s petition, Dr. Sarkisian admits that on or about March 15, 2012 the plaintiff signed a general consent for medical and surgical procedures. Dr. Sarkisian further admits that before signing the general consent for medical and surgical procedures Dr. Sarkisian explained the plaintiff’s condition as being primary
open angle glaucoma and the proposed treatment was a revision of the drainage implant with possible grafts. Dr. Sarkisian further responds that he was engaged in the clinical teaching duties during the care he provided to plaintiff, but such clinical teaching duties were voluntary in nature and not as an employee of the State of Oklahoma.
4. In response to paragraph 3 of plaintiff’s petition, Dr. Sarkisian admits he performed a surgical procedure on the plaintiff on March 19, 2012. Dr. Sarkisian denies that he did an additional procedure to which the plaintiff did not give his informed consent. Dr. Sarkisian admits his operative note includes as part of the procedure a cyclophotocoagulation during which a laser is utilized.
5. Dr. Sarkisian denies the allegations contained in paragraph 4 and 5 of plaintiffs petition as they pertain to him. The remaining allegations do not pertain to Dr. Sarkisian and therefore no response to them is called for by him.
6. In response to the first paragraph 6 of plaintiff’s petition Dr. Sarkisian is without knowledge or information sufficient to either admit or deny the allegations contained in the first two sentences of plaintiff’s petition, first paragraph 6. Dr. Sarkisian denies the remaining allegations in the first paragraph 6 of plaintiff’s petition as they relate to him.
7. In response to the second paragraph 6(sic) of plaintiff’s petition, a physician in residency was present during the procedure of March 19, 2012, but did not perform or assist in the actual performance of the procedure. Dr. Sarkisian during the procedure was acting as a voluntarily clinical professor and responds that he was not an employee of the State of Oklahoma as defined by 51 O.S. § 151(7)(b)(3). The remainder of the allegation of the
second paragraph 6(sic) of plaintiff’s petition do not related to Dr. Sarkisian and do not require a response from him.
8. The allegations contained in paragraphs 7 and 9 of plaintiffs petition do not pertain to Dr. Sarkisian, and therefore no response to them is called for by him.
9. Dr. Sarkisian admits the allegations contained in paragraph 8 of plaintiffs petition.
10. Dr. Sarkisian denies the remaining allegations contained in plaintiffs petition.
11. Dr. Sarkisian specifically denies that he was negligent in any manner or at any time in his care and treatment of the plaintiff. Dr. Sarkisian’s care and treatment of the plaintiff was at all times and in every manner proper and within the standard of applicable care.
12. Dr. Sarkisian specifically denies that any act or omission on his part in the care and treatment of the plaintiff was the proximate cause of any injury to the plaintiff.
13. Dr. Sarkisian specifically denies that the plaintiff sustained any injury or suffered any damages by reason of any alleged act or omission on Dr. Sarkisian’s part.
14. Discovery being incomplete, Dr. Sarkisian specifically reserves the right to amend his answer or to add any affirmative defense as more information becomes available.
Defenses
For affirmative defenses, Dr. Sarkisian alleges and states:
15. Plaintiffs petition fails to state a claim against Dr. Sarkisian on any ground upon which relief can be granted.
16. Plaintiffs petition fails to state a claim against Dr. Sarkisian for punitive damages.
17. The imposition of punitive damages against Dr. Sarkisian would be unconstitutional and would violate the rights of Dr. Sarkisian under the United States Constitution and under the Oklahoma Constitution.
18. Any damages allegedly suffered by the plaintiff were caused by plaintiffs voluntary assumption of the risk.
19. Any damages allegedly suffered by the plaintiff were caused or contributed to by his own acts, conduct, or negligence.
20. Any damages allegedly suffered by the plaintiff were caused or contributed to by his failure to mitigate his damages.
21. Any damages allegedly suffered by the plaintiff were unfore seeable or unavoidable or the result of an idiosyncratic reaction of the plaintiff, for which Dr. Sarkisian is not responsible.
22. Any damages allegedly suffered by the plaintiff were caused by other, unrelated physical or mental or personal conditions of the plaintiff, for which Dr. Sarkisian is not responsible.
23. Any damages allegedly suffered by the plaintiff were caused by other, unrelated conditions or were the result of unforeseeable or unavoidable complications due to the underlying condition of the plaintiff, for which Dr. Sarkisian is not responsible.
24. Any damages allegedly suffered by the plaintiff were caused by a pre-existing or post-developing unrelated medical condition, disease, illness, or infection of the plaintiff, for which Dr. Sarkisian is not responsible.
25. Any damages allegedly suffered by the plaintiff as a result of the surgery were not caused by any negligence of Dr. Sarkisian in the performance of the surgery, but rather were caused by unavoidable complications of the procedure resulting from the underlying disease of the plaintiff and his anatomic or physiologic condition, for which Dr. Sarkisian is not responsible.
26. Plaintiff’s claim for punitive damages is barred and limited by 23 O.S. §9.1.
27. Plaintiff would not have chosen a different course of treatment or no treatment had the alternatives and material risks of defendant’s treatment been made known.
28. Plaintiffs were not injured by an undisclosed risk as a result of submitting to defendant’s treatment.
29. To the extent plaintiffs claims are based on a theory that provides for liability without proof of causation, the claims violate Dr. Sarkisian’s rights under the United States Constitution.
30. Because of the lack of clear standards, the imposition of punitive damages against Dr. Sarkisian is unconstitutionally vague and/or overly broad.
31. No action or omission of Dr. Sarkisian was malicious, willful, wanton, reckless, grossly negligent or intentional and, therefore, any award of punitive damages is barred,
32. Assumption of risk.
33. Contributory negligence.
34. My other matter constituting an avoidance or affirmative defense.
WHEREFORE, having answered, Dr. Sarkisian prays that the plaintiff take nothing by reason of his petition and that he be dismissed herein with his costs.

Outcome: Settled for an undisclosed sum and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

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