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 twotenths 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 postoperative 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.