United States District Court, D. New Jersey
MICHAEL VAZQUEZ, U.S.D.J.
Federal Tort Claims Act (the "FTCA") case arises
out of Plaintiff Robert Melber's ophthalmologic care
while a patient of the Department of Veterans Affairs New
Jersey Health Care System (the "VA"). Plaintiff
filed the instant action in New Jersey state court against
Neelakshi Bhagat, M.D.; Keegan Johnson, M.D.; Scott M,
Walsman, M.D.; Amir Cohen, M.D.; Jung S. Lee, M.D., and John
Doe Defendants. At the time of the relevant events, Drs.
Johnson, Walsman, and Lee were employed by the VA. On June
17, 2011, the United States substituted itself as the
Defendant for the three physicians and removed the matter to
this Court. See Amended Notice of Removal and
Substitution of Defendant ¶¶ 2, 5; D.E. 2. Drs.
Bhagat and Cohen, who were not federal employees at the time
in question, were dismissed from this action on March 28,
2012. D.E. 31. Thus, the United States is the sole Defendant.
asserted pursuant to the FTCA are tried without a jury.
See 28 U.S.C. § 2402. Accordingly, there was a
five-day bench trial between April 1 and 10, 2019. The trial
consisted of witness testimony and exhibits; the parties also
had a full opportunity to examine and cross-examine the
witnesses as well as present their arguments. After
consideration of the record, the following are the
Court's findings of fact and conclusions of law pursuant
to Federal Rule of Civil Procedure 52(a).
FINDINGS OF FACT 
medical malpractice matter focuses on retained lens material
in Melber's right eye following cataract surgery.
Colloquially, the human eye is divided into two sections: the
anterior segment, which is the front of the eye, and the
posterior segment, which is the back of the eye. The anterior
segment includes the iris; lens; cornea, which is a
transparent covering over the iris and lens; and the visible
white section of the eyeball, called the sclera. Tr. Vol. 3
at 247:22-248:17. The lens consists of two major components.
Nuclear lens material, found in the center of the lens, is
hard and looks yellowish. The remainder of the lens is called
the cortex. Cortical material is softer and looks white.
Id. at 273:13-17.
posterior section of the eye is filled with a jelly-like
substance called vitreous. Id. at 248:18-25. The
posterior section also consists of a very thin membrane
called the retina, which lines the interior of the eye. The
retina is analogous to film in a camera; images are projected
through the lens onto the retina and that information is then
transferred to the brain through the optic nerve. The macula
is the small, center portion of the retina. The macula is the
part of the retina that allows a person to see details and
clearly. Id. at 249:7-15. The fovea, in turn, is at
the center of the macula. Tr. Vol. 2 at 151:16-19.
Melber suffered a macula-off detached retina in his right
eye. After his retina surgery, Melber developed a cataract.
Melber then had a second surgery to remove the cataract, and
following that surgery, lens material remained in
Melber's right eye. The retained lens material, and its
impact on Melber's vision, is the central focus of this
following undisputed facts were set forth in the stipulation
of facts section of the Final Pretrial Order
("Stipulated Facts"), D.E. 108. Plaintiff Robert
Melber, a Navy veteran, was a patient of the VA for many
years. Stipulated Facts ¶ 1. Melber began noticing
symptoms of blurred vision in his right eye on May 2, 2009,
and went to the VA's non-urgent clinic for treatment on
May 4. Id. ¶¶ 2-3. On May 5, 2009,
Plaintiff was seen by Drs. Jung S. Lee, M.D., and Scott
Walsman, M.D., at the VA Ophthalmology Clinic. During the
appointment, Melber stated that he could not see out of his
right eye and his visual acuity for the right eye was
measured at "counting fingers." Id.
¶ 4. Melber's visual acuity for his left eye was
20/20. Id. Melber was diagnosed with a chronic
retinal detachment in the right eye, which had progressed to
involve the macula. Melber also had mild cataracts in both
eyes. At this appointment, Dr. Lee explained to Melber that
surgery to repair his detached retina may not improve the
vision in his right eye because the macula was detached.
11, 2009, Melber met with Dr. Neelakshi Bhagat, M.D., and
resident Dr. Keegan Johnson, M.D., at the VA. Id.
¶ 5. Dr. Bhagat explained the benefits and risks of
surgery to repair the detached retina, including a decrease
in vision, the need for repeated surgery, and the progression
of cataracts. Understanding the risks, Melber decided to have
the surgery. Id. Drs. Bhagat and Johnson performed
the surgery the same day. Intraoperatively, Drs. Bhagat and
Johnson again diagnosed Melber with a macula-off retinal
detachment in the right eye in addition to a retinal tear.
Id. There were no complications during the surgery,
and Melber was in stable condition and discharged following
the procedure. Id.
Amir Cohen, M.D., examined Melber in the VA Ophthalmology
clinic the following day, May 12, 2009. Id. ¶
6. Melber's vision in his right eye was limited to hand
motions (which is worse than counting fingers), and Dr. Cohen
noted that Melber's cataract had worsened. Id.
Melber had additional post-operative appointments on May 13
and 14, 2009. Id. ¶¶ 7-8. On the May 13
visit, the examining doctors confirmed that Melber's
retina had successfully been reattached during surgery.
Id. On May 14, 2009, a B-scan ultrasound of the
right eye "showed findings consistent of a progressive
cataract." Id. On both days, however,
Melber's vision remained at hand motions, and the
pressure in his right eye was low. Id. Drs. Bhagat
and Walsman examined Melber at the VA Eye clinic on May 18,
2009. Melber's vision remained at hand motions, and he
still had low intraocular pressure. Id. ¶ 9.
Drs. Bhagat and Walsman performed another B-scan ultrasound,
which showed choroidal detachment. Id.
was then scheduled for a second surgery on his right eye: a
cataract extractionand placement of a sulcus intraocular lens.
Id. On June 8, 2009, Drs. Cohen and Walsman
performed the surgery. Id. ¶ 11. On June 9,
2009, one day after the cataract surgery, Drs. Cohen and
Walsman examined Melber. "It was noted that [Melber] had
a small amount of retained cortical lens material in the
right eye.'" Id. ¶ 12. Dr. Walsman
examined Melber during a follovv- up visit on June 12, 2009,
and again noted a small amount of retained cortical material
in Melber's right eye. Id. ¶ 14. On June
19, 2009, Drs. Lee and Walsman examined Melber during a
follow-up visit at the VA Ophthalmology Clinic. During this
visit, Drs. Lee and Walsman noted that the retina was
attached but there was a decreased view of the posterior
section of Melber's right eye due to corneal swelling.
Id. ¶ 15. Drs. Lee and Walsman also saw a small
amount of retained cortical material. Id. "The
recommendation was to allow time to clear the inflammation
and to schedule a follow-up visit in two [to] three weeks to
allow time for corneal swelling to resolve and allow improved
visualization of the retina." Id.
20, 2009, Melber had a follow-up appointment with Dr. Bhagat.
At this time, Melber's visual acuity had improved and was
approximately 20/200 in the right eye. Id. ¶
16. During her examination, Dr. Bhagat saw an
"[i]nferiorly dislocated large cataract piece."
Id. Dr. Bhagat noted that the retained cataract
fragment "?? Looks nuclear cortical."
Id. Dr. Bhagat also indicated that there was mild
vitreal inflammation. Id. Dr. Bhagat wrote that
Melber should follow up in one month, and "if still
unchanged, [he] may need to consider PPV/PPL (surgical
procedures to remove cataract fragment)". Id.
saw Melber at a follow-up appointment on August 3, 2009.
Melber's visual acuity was measured at
20/200 and during his examination, and Dr. Lee
confirmed that the retained lens material was still in
Melber's right eye. Dr. Lee noted that the retina was
flat (meaning in place) and diagnosed Melber as having an
epiretinal membrane in his right eye. Id. ¶ 17.
Dr. Lee recommended that Melber return for a follow-up visit
on August 17, 2009. Id.
did not follow-up with any doctor at the VA. Instead, on
August 24, 2009, Melber saw Dr. Michael Harris, M.D., a
private ophthalmologist with Retina Associates of N.J., P.A.
Id. ¶ 18. Dr. Harris examined Melber and
determined that there were "retained nucleus
fragments" in his right eye, an epiretinal membrane, and
"evidence of macular edema associated with the retained
lens material." Id. ¶ 18. Edema refers to
swelling. Dr. Harris recommended removal of the retained lens
material "in hopes of eliminating the edema" but
noted that "the amount of visual recovery will be
limited due to the fact that the retinal detachment has been
present for several weeks prior to its surgical repair."
Id. Approximately three weeks later, on September
16, 2009, Dr. Harris performed Pars Plana
Vitrectomy/Lensectomy ("PPV/PPL") surgery on
Melber's right eye to remove the retained lens material
and the epiretinal membrane. Id. ¶ 19.
post-operative follow-up with Dr. Harris on September 21,
2009, Melber's visual acuity was measured at 20/150.
Id. ¶ 21. Melber, however, still had macular
edema in his right eye. Id. On October 5, 2009,
Melber's visual acuity had worsened and was measured at
20/400. In addition, the macular edema was still present.
Id. ¶ 22. Melber's condition was unchanged
at an October 19, 2009 appointment. Id. ¶ 23.
At a November 16, 2009 appointment, Melber's visual
acuity had improved to 20/150. The macular edema had also
improved. Id. ¶ 24.
continued to be treated by Dr. Harris' practice over the
next several years. Melber received periodic steroidal
injections and, at times, his vision in the right eye and the
macular edema appeared to improve. For example, at a January
4, 2010 appointment with Dr. Harris, Melber's visual
acuity was "stabilized at 20/800 in the right eye."
Id. ¶ 28. In addition, Dr. Harris noted that
there was "a mild amount of edema" but it was
"not severe enough to explain the acuity."
Id. Dr. Harris indicated that Melber's vision
loss "was more related to damage from the original
retinal detachment, rather than the macular edema."
Id. On September 13, 2010, Dr. Harris found no
evidence of macular edema and Melber's vision in his
right eye was measured at 20/150. Id. ¶ 35.
these periodic improvements, the overall condition of
Melber's right eye ultimately worsened. On December 13,
2010, Melber's visual acuity was measured at 20/400 and
Dr. Harris "found that the right eye macular edema had
returned along with a prominent epiretinal membrane."
Id. ¶ 37. At a February 14, 2011 appointment,
Dr. Harris determined that Melber continued to have macular
edema in the right eye with vision at finger counting at five
feet. Id. ¶ 39. On May 23, 2011, Dr. Harris
found that in addition to the epiretinal membrane,
Melber's right eye had subretinal fluid beneath the right
fovea along with intraretinal cystic edema. Id.
¶ 40. On September 22, 2014, Melber's visual acuity
was counting fingers at three feet in his right eye and 20/20
in the left eye. Id. ¶ 45. During an
examination, Dr. Harris noted evidence of recurrent
epiretinal member and macular edema in the right eye. Dr.
Harris noted that Melber's "right eye vision has
been at this level for many years and no additional treatment
is required at this point." Id.
trial, the Court heard testimony from the following
witnesses: Robert Melber; Michael Melber, Plaintiffs son; Dr.
Harris (by way of video deposition), a vitreoretinal surgeon
and Plaintiff's treating physician after the VA; Dr.
Harvey Rosenblum, a general ophthalmology and anterior
segment surgery specialist and Plaintiffs liability expert;
Dr. Bhagat, a vitreoretinal surgeon and one of Plaintiff s
treating physicians at the VA; Dr. Cohen, a glaucoma
specialist and one of Plaintiff's treating physicians at
the VA; Dr. Lee, the head of ophthalmology at the VA during
the events at issue, an anterior segment surgery specialist,
and one of Plaintiffs treating physicians at the VA; and Dr.
Mitchell S. Fineman, a vitreoretinal surgeon and
Defendant's liability expert.
testified first. Melber is retired and a veteran of the
United States Navy. He served for approximately one year and
was discharged in 1960 due to a medical condition. Tr. Vol. 1
at 33:23-24:12. At his deposition, Melber indicated that he
was discharged because of paresthesia of the right lower
mandible. At trial, however, Melber added that his discharge
was also due to falling arches. Id. at 98:6-22.
Melber received medical disability upon discharge, which he
continues to receive to this day. Id. at 35:10-14.
trial, Melber's testimony was at times materially
different from the parties' stipulated facts and his
deposition testimony. First, as indicated above, in the Final
Pretrial Order, the parties stipulated that Melber first
experienced blurred vision on May 2, 2009 and was seen at the
nonurgent clinic at the VA for his poor vision on May 4,
2009. Stipulated Facts ¶¶ 2-3. The following day,
May 5, 2009, Melber met with Drs. Lee and Walsman in the VA
Ophthalmology Clinic. Id. ¶ 4. At trial, Melber
insisted that he first suffered blurred vision on April 27,
2009 (Tr. Vol. 1 at 53:2-5) and that he saw Dr. Walsman in VA
Ophthalmology Clinic that same day (id. at 55:7-24;
56:22-57:3). The Court credits Melber's trial testimony
regarding when he began noticing symptoms of the detached
retina but not his statements that he was examined by Dr.
Walsman on April 27. The record evidence indicates that
Melber was not seen in the Ophthalmology Clinic until May 5,
2009, as the parties previously stipulated. See Ex.
A; Stipulated Facts ¶ 4.
addition, at his deposition, Melber stated that he did not
meet with any VA doctor on August 3, 2009, and that no
follow-up appointment at the VA was scheduled after the
August 3 appointment. Tr. Vol. 1 at 76:12-77:25. At trial,
however, Melber explained that he did meet with Dr. Lee on
August 3 and that during this appointment, Dr. Lee told him
to come back to the VA in two weeks for a follow-up.
Id. at 45:10-17; 78:13-79:1. Instead of returning
the VA, Melber decided to seek a second opinion from a doctor
outside of the VA. Id. at 46:21-47:3. Again,
Melber's trial testimony contradicts earlier statements
made during his deposition, and the Court credits
Melber's trial testimony as it is also consistent with
the record evidence.
his August 3 appointment at the VA, Melber testified that he
attempted to meet a Dr. Higgins at Belleville Hospital the
same day but was unsuccessful. Id. at 47:2-5.
Approximately two weeks later, Melber went to a Dr. Marone in
North Arlington, New Jersey. Dr. Marone examined Melber and
told Melber that the "large piece" needed to
"come out" but that Dr. Marone was not to correct
person to perform the surgery. Id. at 47:8-49:3. On
August 24, 2009, Melber met with Dr. Harris. Id. at
48:22-49:5. Dr. Harris treated Melber for multiple years.
Melber testified that he has been a patient of Dr. Harris for
ten years (id. at 49:24-25), although the Court
notes that Melber's first appointment with Dr. Harris was
in 2009 so the ten-year anniversary has not yet occurred.
stated that he now has permanent vision loss in his right
eye. Melber testified that with his right eye he can see
light, "but it's a blur," and that he can see
his hand if he holds it close to his face. Id. at
50:7-12. Melber explained that since 2009, he can no longer
read or drive, perform many household tasks, and that going
up and down stairs is difficult. Id. at 51:7-25. As
a result of his vision loss, Melber testified that he has to
rely on his adult son daily to perform essentially all
household tasks and drive Melber as needed. Id. at
50:21-51:2. The Court also heard testimony from Melber's
son Michael regarding the limitations Plaintiff now faces
because of the vision loss in Plaintiffs right eye.
remaining testimony came from multiple medical professionals.
Every doctor that testified is board certified in
ophthalmology. There are sub-specialties of ophthalmology
although none are recognized for board certification
purposes. Generally, the ophthalmologists who testified
specialized in either the anterior, i.e. front, or
posterior, i.e. the back, of the eye. Drs. Harris,
Bhagat, and Fineman are vitreoretinal surgery specialists,
which pertains to the posterior of the eye. Drs. Rosenblum,
Cohen and Lee, focus on the anterior segment of the eye.
nuclear retained lens material in Melber's right eye is
at the heart of this case. Retained lens material or
fragments ("RLF") refers to material that remains
in the vitreous of the eye following cataract surgery. The
parties agreed that cortical material, at least if it is not
too large, most often does not require surgical removal
because it will naturally reabsorb into the body. The parties
also agreed that nuclear material, at least if it is
sufficiently large, must be removed surgically because it
will not reabsorb into the body. A nuclear RLF can lead to
inflammation, which in turn, can lead to macular