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03/30/94 MARTHA C. SIMERS v. ROBERT L. BICKERS

March 30, 1994

MARTHA C. SIMERS, PLAINTIFF-APPELLANT,
v.
ROBERT L. BICKERS, INDIVIDUALLY AND D/B/A FITTED CONTACT LENSE CO., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. The Honorable Walter B. Bieschke, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Tully, Rizzi, Greiman

The opinion of the court was delivered by: Tully

PRESIDING JUSTICE TULLY delivered the opinion of the court:

This case arises out of injuries sustained by plaintiff, Martha C. Simers, after defendant, not a licensed optometrist, fitted her with a pair of extended wear soft contact lenses (EWCL). Thereafter, plaintiff experienced complete blindness but has since recovered thirty percent of her vision. The jury returned a verdict in favor of defendant both on the negligence count and under the Illinois Optometric Practices Act. The original trial resulted in a hung jury and the case was returned to the trial call. Count I of the complaint charged defendant, a lay person, with negligence in the dispensing and fitting of plaintiff with the contact lenses. The jury returned a verdict in favor of defendant as to Count I. Count II alleged a statutory cause of action, charging a violation of the Illinois Optometric Practice Act. The trial court directed a verdict in favor of defendant on Count II.

FACTUAL BACKGROUND

Plaintiff had worn glasses since she was four years old, around 1960. Since 1966 she had been treated by Dr. William Cahill andfrom 1971 through March 1983, plaintiff wore hard contact lenses. During this time plaintiff sustained corneal abrasions quite often and decided to pursue soft contact lenses.

Dr. Cahill introduced defendant, Robert L. Bickers, to plaintiff as his "contact lens man." Cahill would provide defendant with the prescription for contact lenses and defendant would then fit the lenses to the patient, who would in turn discuss any problems with the lenses with defendant. Defendant was not licensed as an optometrist or opthamalogist but whether or not he was "qualified" under the Illinois Optometric Practices Act was an issue of law for the trial court.

Prior to the end of March 1983, plaintiff asked Dr. Cahill if she was a candidate for soft contact lenses. She was referred to defendant, Bickers, who subsequently fitted her for the lenses. After the initial fitting plaintiff had two follow-up visits, wherein her eyes were dry and scratchy. Defendant gave her an artificial tears solution to remove the dryness. At the second follow-up everything looked "fine." Dr. Cahill also stressed the importance of cleaning and disinfecting the lenses.

In mid-April 1983, plaintiff moved to Denver, Colorado and by the end of the month she had sustained problems with the lenses and she contacted Dr. Tarkanian. He told her not to wear the lenses at night and the problem cleared up. On May 18, 1983, plaintiff woke up in severe pain with a corneal abrasion. She was not wearing any lenses and was taken for emergency treatment. The hospital did not look at the lenses. The next day she went to Dr. Tarkanian's associate, Dr. Barker, who concluded she was experiencing a chemical burn. Barker also did not examine the contact lenses for bacteria.

On May 20, 1983, while in Denver, plaintiff stepped out of the shower and could not see. She was hospitalized several days and treated by Dr. Barker and his colleague, a corneal specialist, Dr. Forstot. As Dr. Forstot medicated plaintiff's eyes, she continued to improve.

In August 1983, plaintiff drove herself back to Chicago, where plaintiff was treated by Dr. Deutsche, an opthamalogist, in the presence of Bickers. Deutsche agreed with the medication treatment she was receiving.

Finally, after August 1983, plaintiff came under the care of Dr. Gerstein. Plaintiff never showed Gerstein her extended wear soft contact lenses. In June 1985, plaintiff was fitted with hard, gas permeable contact lenses by Gerstein.

Plaintiff was treated by a series of seven different eye techniciansor optometrists regarding the injuries she sustained subsequent to receiving the soft contact lenses from Bickers. Dr. Gerstein, testified that in his professional opinion plaintiff's injuries were caused by the poor or inadequate fitting of the soft contact lenses by Bickers. Gerstein further testified that the fitting of a contact lens to a human eye ball was not within an optician's practice and should be conducted "by a practitioner trained in that field." He ...


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