In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3340

ROBERT E. DONAIS,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 96 C 3948--James T. Moody, Judge.


Argued April 13, 2000--Decided November 13, 2000




  Before HARLINGTON WOOD, JR., ROVNER, and
DIANE P. WOOD, Circuit Judges.

  HARLINGTON WOOD, JR., Circuit Judge. In
June 1996, Robert E. Donais sued the
United States pursuant to the Federal
Tort Claims Act, 28 U.S.C. sec.sec. 2671-
2680, alleging that a third-year resident
at the Edward Hines Veterans
Administration Hospital (the "VA") in
Hines, Illinois, committed medical
malpractice in treating Donais for
cataracts by negligently fitting and
implanting an intra-ocular lens in
Donais’s right eye, causing the eyesight
to deteriorate and requiring further
surgery to correct the problem. Following
a bench trial, the district court entered
judgment for the United States. Donais
appeals.

I.   BACKGROUND

  Donais was an accountant who specialized
in tax preparation. Donais, who had never
worn glasses, began to experience
difficulties with his vision in late
1991/early 1992. He first went to a
private ophthalmologist, where he was
diagnosed with cataracts. Surgery was
discussed. Donais contacted the local VA
hospital, where, as a veteran, he would
be covered for cataract surgery. In June
1992, Donais sought an eye examination
and evaluation at the VA eye clinic. At
that time, where a refraction of 0
diopters is equivalent to 20/20 vision,
Donais’s right eye had a myopic
refraction of -6.0 diopters and his left
eye had a myopic refraction of -4.0
diopters. Although he had cataracts in
both eyes, he was told that he needed
surgery on his right eye but not on the
left. He was referred to Dr. George
Yanik, a third-year ophthalmology
resident, for cataract surgery.

  The surgery would replace Donais’s
natural lens with an artificial lens
placed in the capsular bag. Yanik’s
target was to give Donais a myopic
refraction level of -4.5 to -4.6
diopters./1 Refraction of -4.6 was a
spherical equivalent measurement, which
reflects a combination of the eye’s
myopic refraction and the degree of
astigmatism (misshaping of the cornea)
occurring. Astigmatism can often occur as
a consequence of cataract surgery. Yanik
chose this refraction level so Donais’s
right eye would be balanced with his
left. Generally, when the two eyes are
not balanced, the imbalance may cause a
condition called "anisometropia," which
makes vision difficult. Yanik also chose
the -4.5 to -4.6 target because Donais
indicated that he did not want to wear
reading glasses, and with this myopic
refraction reading glasses would be
unnecessary.

  In order to determine the appropriate
power of the implanted lens, two
measurements were used. The first was a K
reading, which measures the curvature of
the cornea. The second was an ultrasound
probe known as an A-scan, which measures
the axial length of the eye from the
front of the cornea to the back of the
retina. These two measurements are then
used in a computer analysis which
calculates the correct lens power.
Yanik’s procedure was to take five or
more separate A-scan measurements. If all
of the measurements were within two-
tenths of a millimeter, Yanik would use
the resulting average as the patient’s
axial length. The only other figure
needed is known as the "A constant" of
the artificial lens, which is provided by
the lens manufacturer. Using an
established and accepted calculation
known as the SRK formula, Yanik
determined that he would need a 29
diopter lens to achieve his target of
-4.5 to -4.6 diopters.

  In July 1992, Yanik performed the
surgery without any complications. Soon
after, however, it was discovered that
the right eye was providing a greater
degree of myopic refraction than the
intended -4.6 diopters. Such a difference
is referred to as a "power overshoot."
Six weeks after the surgery, the post-
operative spherical equivalent was -6.63
diopters. Between August and December
1992, the power overshoot in Donais’s
right eye was measured six more times,
and remained in the -6 diopter range. In
December, Donais was informed that he
needed surgery for the cataracts in his
left eye. Due to the work demands of the
tax season, Donais did not return to the
VA clinic until May 1993. At that time, a
trial framing (which uses a series of
loose lenses until the patient arrives at
the most accurate correction for him) was
done to determine the refraction as
opposed to an automated machine
refraction which had been used for the
first seven readings. The refraction in
the right eye was -9.5 (myopic reading)
+2.75 (astigmatism), or a spherical
equivalent of -8.12 diopters, as compared
to the December reading of -7.25 +1.0.

  Donais continued to have problems but
waited until November 1993, after he
turned 65 and was eligible for Medicare
coverage, to schedule an appointment with
Dr. Manus Kraff, a private
ophthalmologist who is a well-known
expert in the treatment of cataracts and
co-creator of the SRK formula used by
Yanik. Kraff proposed a two-step surgical
procedure. First, he would perform
cataract surgery on the left eye to make
the refraction 0 diopters (20/20). After
Donais’s recovery, Kraff would then
exchange the too powerful 29 diopter lens
in Donais’s right eye with a 23 diopter
lens to make the right eye 0 diopters as
well. Kraff performed the operations in
December 1993 and March 1994,
respectively.

  Several months after Kraff’s second
surgery, Donais began to experience
blurred vision in his right eye due
toincreased astigmatism. Kraff testified
that the increased astigmatism resulted
from the multiple surgeries and the
compromised ability to heal. Donais has
had no problems with his left eye.
However, because of the resulting differ
ences between the two eyes, Donais cannot
tolerate a prescription for the right
eye. Kraff recommended additional
procedures for the right eye to reduce
the astigmatism, but Donais declined to
undergo further surgery. During the
trial, Donais testified that he continues
to suffer from blurry vision, but is able
to read, drive, and watch television for
approximately one to two hours at a time.


  At trial, Kraff provided expert
testimony on Donais’s behalf. Kraff
testified that before the original
surgery, Yanik most likely mismeasured
Donais’s right eye, and that was the
reason Yanik chose a too powerful lens.
However, Kraff also testified that a
power overshoot is not always a breach of
the standard of care, and that he himself
has overshot the lens power. Kraff
theorized that the measurements taken by
the VA between August and December 1992
were wrong, and therefore the actual
overshoot after the surgery was higher
than indicated.

  Dr. Randy Epstein, expert witness for
the United States, stated that Yanik did
not breach any standard of care when he
chose to balance Donais’s right eye with
his left eye, even though Epstein himself
would probably not have chosen that
particular refraction. Epstein testified
that power overshoots are common, and, in
1992, the means of measuring the eye were
not always precise and that
mismeasurement causing a power overshoot
would not necessarily be a breach of
care. According to Epstein, the "spike"
in the overshoot could not be caused by
the improper lens power since the lens
power remained constant.

  The district court found that Donais
failed to provide expert testimony that
proved Yanik breached an applicable
standard of care, and failed to show that
any breach by Yanik proximately caused
Donais’s injury.

II.   ANALYSIS
  Following a bench trial, we apply a
clearly erroneous standard when reviewing
the district court’s findings of fact.
Keller v. United States, 58 F.3d 1194,
1197 (7th Cir. 1995) (citation omitted).
The Federal Tort Claims Act provides a
remedy for personal injury caused by the
negligent or wrongful act of any
government employee acting within the
scope of his employment, "under
circumstances where the United States, if
a private person, would be liable to the
claimant for the act in accordance with
the law of the place" where the act
occurred. 28 U.S.C. sec. 1346(b); see
also Midwest Knitting Mills, Inc. v.
United States, 950 F.2d 1295, 1297 (7th
Cir. 1991). Therefore, we apply the law
of Illinois in this action.

  Under Illinois law, in a medical
malpractice action, the burden is on the
plaintiff to prove (1) the proper
standard of care by which a physician’s
conduct may be measured, (2) a negligent
failure to comply with the applicable
standard, and (3) a resulting injury
proximately caused by the physician’s
lack of skill or care. Purtill v. Hess,
489 N.E.2d 867, 872 (Ill. 1986)
(citations omitted). "Unless the
physician’s negligence is so grossly
apparent or the treatment so common as to
be within the everyday knowledge of a
layperson, expert medical testimony is
required to establish the standard of
care and the defendant physician’s
deviation from that standard." Id.
(citations omitted); see also Walski v.
Tiesenga, 381 N.E.2d 279, 282 (Ill.
1978). To establish that a doctor is
guilty of malpractice, the plaintiff must
"introduce evidence of the standard of
care to which the defendants were bound
to adhere." Walski, 381 N.E.2d at 283-84.
The only issue in the present case is
whether Yanik committed medical
malpractice. Therefore, Donais must first
establish an accepted standard of care.

  Kraff did not state a definitive
baseline standard of care. Kraff
disagreed with Yanik’s plan of treatment,
maintaining that "the wrong power of lens
was implanted in Mr. Donais’s eye," and
that a target of -4.6 diopters with an
end result of -9 diopters was a breach of
the standard of care. Kraff believed that
Yanik should have targeted the right eye
for a 0 diopter correction, because the
cataract in the left eye would
necessitate surgery and that surgery
would correct the left eye to 0 diopter,
leaving both eyes balanced. Kraff was
unable to determine a specific amount of
overshoot which would constitute a breach
of care. In his deposition, Kraff stated
that an overshoot of 3 diopters would not
be a breach but that 5 diopters would.
However, he also stated that after
surgery where the target was -4.0 to -
4.6, a reading of -7 "is an error, but
that would be hard to say breach." Kraff
also testified that a power overshoot is
not necessarily a breach of care, and
that he himself had on several occasions
missed the target refraction and has had
to replant a different lens.

  Kraff acknowledged that the seven
measurements taken in the first six
months after Yanik’s surgery were all
less than a 3 diopter overshoot, which he
would not ordinarily consider a breach of
care. However, Kraff’s explanation for
the "spike" between December 1992 and May
1993 was that it was nonexistent, that it
only appeared because the VA measurements
through December 1992 were inaccurate,
due to the use of automated refraction,
as opposed to the more accurate method of
trial framing, which finally revealed the
"accurate" refraction in May 1993. Kraff
stated that this was his assumption given
the fact that the component measurements
(such as the axial length and the corneal
curvature) used to arrive at the
automated refraction had not been kept in
the VA’s records; only the final
refractive correction number was
recorded. However, there was no evidence
presented to support this assumption.
Absent a finding that the government
willfully destroyed evidence in bad
faith, the district court does not abuse
its discretion in declining to infer that
the evidence would have been unfavorable
to that party. Keller, 58 F.3d at 1197.
Therefore, the district court did not err
in declining to accept this portion of
Kraff’s theory.

  Epstein also could not state a
definitive standard of care which would
clearly indicate malpractice. According
to Epstein’s deposition testimony,
although he personally might have chosen
a different diopter target, Yanik was not
necessarily wrong in planning a -4.6
diopter target for the right eye to
balance with the left eye. Therefore,
when Donais’s right eye was measured at -
8.12 spherical (-9.25 +2.75) in May 1993
at the VA clinic, the resulting 3.6
overshoot would not be considered a
breach of care. Epstein testified, "I
don’t think that there is any degree of
myopia that would have made Dr. Yanik
guilty of breaching the standard of care.
[A power overshoot is] just one of those
things that happens with cataract
surgery." He stated, "I would say one of
the recognized risks of cataract surgery
with lens implantation is that a patient
may wind up with a lens implant that is
the wrong power."

  At trial, while Epstein testified that
up until December 1992, the overshoot was
caused by mismeasurements, he noted that
the additional "spike" in refraction that
was first recorded in May 1993 could
likely have been a result of the lens
repositioning itself due to scarring and
the natural healing process and that
"[i]t happens not infrequently." There
was evidence in the record to support the
fact that the lens had moved into the
sulcus. When Donais was examined in
August 1993, a VA doctor recorded that
the lens was "well fixated in the ciliary
sulcus," yet Yanik stated that he had
inserted the lens into the capsular bag.
When Kraff examined Donais, he recorded
that the lens was well-placed but could
not recall if it was in the bag or the
sulcus. According to Epstein, if the lens
did in fact move forward causing the
"spike" six months after surgery, then
the overshoot following the first five
months of surgery averaged below 3
diopters (spherical equivalent below 2),
which would not be considered outside an
acceptable standard of care. He also
testified that an overshoot of up to 12
diopters would not necessarily be
malpractice, and was unable to draw the
line as to where an overshoot would be
considered a breach of care.

  When only conflicting opinions as to
what they consider the correct technique
should have been are presented by
testifying physicians, the Illinois
Supreme Court has held that "the
plaintiff has failed to present
sufficient evidence of a standard of care
in the medical community to submit the
case to the jury." Walski, 381 N.E.2d at
284 (listing cases). The plaintiff does
not establish a prima facie case merely
by presenting the testimony of another
physician who states that he would have
acted differently from the defendant. Id.
at 285. Because of the uncertainty of
both expert witnesses in determining the
applicable standard of care, Donais
failed to establish a prima facie case.
In addition, the moving party must
establish that a judgment cannot be
supported by the evidence in order to set
aside the district court’s holding. See
Keller, 58 F.3d at 1199 (citations
omitted). Although Donais raises
alternative interpretations of the
evidence, these assertions alone are not
sufficient to show that the district
court’s decision could not be supported
by the evidence. The district court
carefully and fully considered all
aspects of this technical case and did
not clearly err in finding for the
defendant based upon Donais’s failure to
meet his burden of proof.

III.   CONCLUSION

  For the above-stated reasons, the
judgment of the district court is
affirmed.

AFFIRMED.



/1 Yanik testified at trial to these numbers. In his
deposition, he had stated the targeted refraction
was -4.0 to -4.5 diopters. However, throughout
his trial testimony, Yanik most often referred to
the -4.6 number.
