Filing # 81976411 E-Filed 12/11/2018 07:04:34 PM

IN THE CIRCUIT COURT OF THE

NINTH JUDICIAL CIRCUIT, IN AND
FOR ORANGE COUNTY, FLORIDA

CASE NO.:_______________________

CAROL HARDING,

Plaintiff,
v.

LASIK VISION INSTITUTE, LLC and

MICHAEL INSLER, M.D.;

Defendants.
/
COMPLAINT FOR DAMAGES
COMES NOW the Plaintiff, CAROL HARDING, (“Plaintiff”) by and through the

undersigned counsels and hereby sues the Defendants, LASIK VISION INSTITUTE, LLC (“LVI”)

and MICHAEL INSLER, M.D. (“Dr. Insler” and together with LVI, “Defendants”), and states as

follows:

PARTIES, JURISDICTION, AND VENUE

1. This is an action for damages in excess of the sum of Fifteen Thousand Dollars

($15,000.00), exclusive of costs, interest and costs.

2. This action is filed in compliance with the requirements and conditions precedent outlined in

§766.106, Florida Statutes, and Plaintiff has met all of the requirements and conditions precedent of

the Medical Malpractice Act.

3. CAROL HARDING served a Notice of Intent to Initiate Litigation against the Defendants in

accordance with the requirements of §766.106(2), Florida Statutes. This notice was served within

two years of the date CAROL HARDING first had knowledge that the injuries sustained by her as

alleged herein were caused by the negligence of the defendants.

 4. Through undersigned counsel’s signature on this Complaint, it is hereby certified pursuant

to §766.203, Florida Statutes, that counsel, prior to filing of this action, has made reasonable

investigation, as permitted by the circumstances, to determine that grounds exist for a good-faith

basis to believe that there was negligence in the treatment of CAROL HARDING, resulting in

injury and damages to her, and that such reasonable investigation has given rise to a good-faith

belief that grounds exist for an action against LVI and INSLER.

5. At all times material hereto, LVI was a limited liability corporation duly formed under the

laws of the State of Florida and was at all times material hereto, doing business in Orange County,

Florida.

6. At all times material hereto, DR. INSLER was a physician licensed to practice medicine in

Florida and was at all times material hereto, practicing medicine in Orange County, Florida.

7. CAROL HARDING is a natural person residing in Brevard County, Florida and was at all

relevant times over the age of 18, and is otherwise sui juris.

8. CAROL HARDING’s cause of action against LVI and DR. INSLER occurred and accrued

in Orange County, Florida and venue is thus proper.

FACTUAL ALLEGATIONS RELEVANT TO ALL COUNTS

LASIK VISION INSTITUTE

9. LASIK eye surgery is a type of refractive surgery, performed by ophthalmologists to correct

certain visual conditions.

10. The market for LASIK eye surgery is hyper-competitive and LVI is one of the most visible

and aggressive marketers in the space.

11. LVI boasts more than 60 eye surgeons in at least 27 states.1

1 Lasik Surgeons Directory, https://www.lasikvisioninstitute.com/lasik-doctor-surgeon/ (Last Visited Nov. 7, 2018).

 12. LVI’s advertisements are heard on the radio, seen on television and displayed on the internet

and across numerous social media platforms.

13. In a crowded market, LVI primarily distinguishes itself with respect to cost – offering deep

discounts and prices starting as low as $220 per eye for LASIK eye surgery.2

14. Despite their positioning as an affordable provider of LASIK eye surgery, LVI promises

“personalized comprehensive care” and a “thorough exam” to evaluate their patient’s candidacy for

LASIK eye surgery.3

15. Upon information and belief, prospective patients responding to advertisements are urged to

come into the nearest LVI facility immediately, where they are quickly screened, deemed ideal

surgical candidates, and asked for a non-refundable deposit.

DR. INSLER

16. At all times material hereto, LVI held itself out to the public as employing or otherwise

engaging qualified physicians in the field of ophthalmologic surgery, including DR. INSLER.

17. At all times material hereto, DR. INSLER was practicing medicine as an employee, actual

agent or apparent agent of LVI.

LASIK SCREENING

18. On August 22, 2016, CAROL HARDING contacted LVI to inquire about a screening

appointment for LASIK eye surgery.

19. CAROL HARDING had been considering LASIK eye surgery for some time and was

desirous of a consultation where she could discuss her options and become more informed.

2The Lasik Vision Institute® Makes LASIK Eye Surgery Affordable,

https://www.lasikvisioninstitute.com/affordability/ (Last Visited Nov. 7, 2018).

3 Why Choose Us, https://www.lasikvisioninstitute.com/lasik-doctor-surgeon/ (Last Visited Nov. 7, 2018).

 20. An employee, agent, apparent agent or representative of LVI urged CAROL HARDING to

come in for a screening appointment that same day, August 22, 2016.

21. On August 22, 2016, CAROL HARDING drove from her home in Brevard County, Florida

to the LVI office in Orange County, Florida.

22. On August 22, 2016 at LVI’s offices in Orange County, Florida, optometrist Kranston

Boodram conducted a cursory examination of CAROL HARDING and declared her “an ideal

candidate” for LASIK eye surgery.

23. On August 22, 2016, CAROL HARDING scheduled a LASIK eye surgery to be performed

by DR. INSLER on September 24, 2016.

24. CAROL HARDING chose September 24, 2016, a Saturday, for the LASIK eye surgery to

avoid missing workdays.

25. On August 22, 2016, CAROL HARDING executed a medical consent form for LASIK eye

surgery and made a non-refundable credit card payment towards her surgery.

PRK SURGERY

26. On September 24, 2016, CAROL HARDING returned to LVI’s office in Orange County,

Florida.

27. Only after payment was collected and pre-operative procedures were underway, including

eye dilation, did DR. INSLER inform CAROL HARDING that she was not a candidate for LASIK

eye surgery and would be undergoing an alternative surgery known as PRK.

28. CAROL HARDING was wholly unfamiliar with PRK surgery including the desired

outcome, risks, recovery time, and surgical procedure in general.

 29. After CAROL HARDING repeated her unwillingness to miss workdays for a long recovery,

DR. INSLER insisted that CAROL HARDING would be able to safely return to work by

September 29, 2016.

30. LVI presented CAROL HARDING with new consent forms to sign to approve the PRK

surgery, mere minutes before the operation.

31. Having already made payment in full for the LASIK, driven approximately an hour to the

LVI facility, and been reassured that she would only miss a couple days of work, CAROL

HARDING signed the new consent forms.

32. At the time CAROL HARDING signed the new consent forms her eyes were dilated and

her corrective eyeglasses had been discarded upon her arrival at LVI as part of LVI’s routine pre-

procedure ceremony.

33. DR. INSLER performed the PRK eye procedure on CAROL HARDING at LVI.

34. Immediately after the procedure, Dr. Boodram performed a post-operative assessment on

CAROL HARDING and informed her that she could not be expected to return to work on

September 29, 2016, despite DR. INSLER’S insistence.

RECOVERY

35. CAROL HARDING returned to LVI for numerous follow-up examinations following the

PRK surgery, and repeatedly expressed her concern that her vision had not yet improved.

36. On October 3, 2016, CAROL HARDING attempted to work for her employer,

communicating multiple times by telephone to LVI with complaints that she could not see well

enough to drive nor perform routine work functions.

37. On October 13, 2016, CAROL HARDING requested the first available appointment to

return to LVI for an evaluation of her eyes.

 38. On October 14, 2016, CAROL HARDING met with Dr. Boodram who confirmed that

CAROL HARDING could not return to work or safely drive.

39. As CAROL HARDING was leaving LVI on October 14, 2016, she did not see a parking lot

curbing in the LVI parking lot, which caused her to trip and break several bones in her foot.

40. In November, December, and January, CAROL HARDING returned to LVI for follow-up

appointments due to her continued inability to work or drive safely.

41. Finally, on February 21, 2017, CAROL HARDING returned to work despite persistent

hazing in her left eye which continues to cause discomfort, disorientation and difficulty driving and

reading.

42. CAROL HARDING would not have undergone PRK surgery if she had been properly

advised about PRK, including its risks, hazards, desired outcome, and recovery time.

COUNT I: NEGLIGENCE OF DR. INSLER

43. Plaintiff re-alleges paragraphs 1 through 42 as if fully stated herein.

44. At all times material hereto, Defendant DR. INSLER owed Plaintiff CAROL HARDING a

duty to provide medical care and treatment which was within the standard of care for similarly

experienced and educated medical care providers within the community.

45. During the relevant time, DR. INSLER deviated from the accepted standard of care in the

treatment of CAROL HARDING by, among other things:

a. Failing to conduct a contact lens trial simulation to simulate the results of a

proposed surgical procedure;

b. Failing to conduct a thorough examination and evaluation of CAROL

HARDING to ascertain whether the proposed surgical procedure would achieve

a desirable result.
 46. As a direct and proximate result of the above-referenced actions and inactions by Defendant

DR. INSLER, CAROL HARDING suffered injury and resulting pain and suffering, disability,

mental anguish, loss of capacity for the enjoyment of life, loss of earnings, loss of the capacity to

earn, and expenses of medical and nursing care and treatment. These losses are either permanent

and/or continuing in nature and CAROL HARDING shall continue to suffer such losses in the

future.

COUNT II: VIOLATION BY DR. INSLER OF §766.103 FLORIDA STATUTES –

FLORIDA MEDICAL CONSENT LAW

47. Plaintiff re-alleges paragraphs 1 through 42 as if fully stated herein.

48. At all times material hereto, Defendant DR. INSLER owed Plaintiff CAROL HARDING a

duty, pursuant to §766.103, Florida Statutes, to obtain her informed consent in accordance with an

accepted standard of medical practice among members of the medical profession with similar

training and experience in the same or similar medical community, such that a reasonable patient

under the circumstances would have a general understanding of the procedure, the medically

acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the

proposed treatment or procedures.

49. During the relevant time, DR. INSLER deviated from the accepted standard of care in

obtaining the informed consent of CAROL HARDING by, among other things:

a. Failing to conduct a contact lens trial simulation to simulate the results of a

proposed surgical procedure;

b. Failing to conduct a thorough examination and evaluation of CAROL

HARDING to ascertain whether the proposed surgical procedure would achieve

a desirable result;
 c. Proposing a material change to CAROL HARDING’S treatment, from a LASIK

surgery to a PRK surgery only after pre-operative procedures had reached the

“point of no return”;

d. Failing to adequately apprise CAROL HARDING of the differences between

LASIK and PRK surgeries and the risk of complications, dissatisfaction, lengthy

recovery and other undesirable results.

50. As a direct and proximate result of the above-referenced actions and inactions by Defendant

DR. INSLER, CAROL HARDING suffered injury and resulting pain and suffering, disability,

mental anguish, loss of capacity for the enjoyment of life, loss of earnings, loss of the capacity to

earn, and expenses of medical and nursing care and treatment. These losses are either permanent

and/or continuing in nature and CAROL HARDING shall continue to suffer such losses in the

future.

COUNT III: VICARIOUS LIABILITY OF LVI FOR THE NEGLIGENCE OF DR.

INSLER

51. Plaintiff re-alleges paragraphs 1 through 42 as if fully stated herein.

52. At all times material hereto, Defendant LVI held itself out to the public as employing or

otherwise engaging physicians qualified in the field of ophthalmologic surgery and possessing the

skill of similarly trained and experienced physicians of the same specialty in the community.

53. At all times material hereto, and more specifically at the time of the negligent acts and/or

omissions alleged herein, DR. INSLER was practicing medicine as an employee of LVI.

54. At all times material hereto, and more specifically at the time of the negligent acts and/or

omissions alleged herein, DR. INSLER was practicing medicine as an actual agent of LVI.

55. At all times material hereto, and more specifically at the time of the negligent acts and/or

omissions alleged herein, DR. INSLER was practicing medicine as an apparent agent of LVI.
 56. During the relevant time, DR. INSLER deviated from the accepted standard of care in the

treatment of CAROL HARDING by, among other things:

a. Failing to conduct a contact lens trial simulation to simulate the results of a

proposed surgical procedure;

b. Failing to conduct a thorough examination and evaluation of CAROL

HARDING to ascertain whether the proposed surgical procedure would achieve

a desirable result.

57. As a direct and proximate result of the above-referenced actions and inactions by

Defendants LVI and DR. INSLER, CAROL HARDING suffered injury and resulting pain and

suffering, disability, mental anguish, loss of capacity for the enjoyment of life, loss of earnings, loss

of the capacity to earn, and expenses of medical and nursing care and treatment. These losses are

either permanent and/or continuing in nature and CAROL HARDING shall continue to suffer such

losses in the future.

COUNT IV: VICARIOUS LIABILITY OF LVI FOR DR. INSLER’S VIOLATION OF

FLORIDA MEDICAL CONSENT LAW

58. Plaintiff re-alleges paragraphs 1 through 42 as if fully stated herein.

59. At all times material hereto, Defendant LVI held itself out to the public as employing or

otherwise engaging physicians qualified in the field of ophthalmologic surgery and possessing the

skill of similarly trained and experienced physicians of the same specialty in the community.

60. At all times material hereto, and more specifically at the time of the negligent acts and/or

omissions alleged herein, DR. INSLER was practicing medicine as an employee of LVI.

61. At all times material hereto, and more specifically at the time of the negligent acts and/or

omissions alleged herein, DR. INSLER was practicing medicine as an actual agent of LVI.
 62. At all times material hereto, and more specifically at the time of the negligent acts and/or

omissions alleged herein, DR. INSLER was practicing medicine as an apparent agent of LVI.

63. During the relevant time, DR. INSLER deviated from the accepted standard of care in

obtaining the informed consent of CAROL HARDING by, among other things:

a. Failing to conduct a contact lens trial simulation to simulate the results of a

proposed surgical procedure;

b. Failing to conduct a thorough examination and evaluation of CAROL

HARDING to ascertain whether the proposed surgical procedure would achieve

a desirable result;

c. Proposing a material change to CAROL HARDING’S treatment, from a LASIK

surgery to a PRK surgery only after pre-operative procedures had reached the

“point of no return”;

d. Failing to adequately apprise CAROL HARDING of the differences between

LASIK and PRK surgeries and the risk of complications, dissatisfaction, lengthy

recovery and other undesirable results.

64. As a direct and proximate result of the above-referenced actions and inactions by

Defendants LVI and DR. INSLER, CAROL HARDING suffered injury and resulting pain and

suffering, disability, mental anguish, loss of capacity for the enjoyment of life, loss of earnings, loss

of the capacity to earn, and expenses of medical and nursing care and treatment. These losses are

either permanent and/or continuing in nature and CAROL HARDING shall continue to suffer such

losses in the future.

PRAYER FOR RELIEF

 65. WHEREFORE, Plaintiff demands judgement for damages against the Defendants, LVI and

DR. INSLER., and any other relief this Court deems necessary and proper.

DEMAND FOR JURY TRIAL

66. Plaintiff demands a trial by jury of all issues triable by right.

RESPECTFULLY SUBMITTED,

MATTHEW A. GOLDBERGER
Florida Bar No: 119897
MATTHEW A. GOLDBERGER, P.A.
250 Australian Avenue South, Suite 1400
West Palm Beach, FL 33401
(561) 659-8337
matthew@goldbergerfirm.com

/s/Garrick Harding .
Garrick Harding
Florida Bar No: 118718
Harding Law PLLC
1068 Sanctuary Cove Dr.
North Palm Beach, FL 33410
(321) 626-9984
Gharding12@gmail.com

DATED THIS 11TH DAY OF DECEMBER, 2018.