Five Avoidable Mistakes in Eye Injury Litigation

Marc H. Shomer, MD, PhD, QME · Published August 2, 2026 · Last reviewed August 2, 2026

Mistake One: Engaging the Expert After the Theory Is Set

The most common pattern: the case is filed, discovery is largely complete, positions are staked out — and only then does an ophthalmologist see the records. At that point the expert can validate or contradict the theory, but can no longer shape it. Consulted earlier, the same expert would have flagged which imaging to demand in native format, which providers' records establish baseline, and — sometimes — that the objective evidence does not support the theory at all, while there was still time to adjust or resolve the case economically.

There is also an evidence-preservation cost. Imaging data and archived studies are subject to retention policies; what nobody requests early may not exist later. The fix: a focused preliminary review at case evaluation, before discovery requests are drafted. The process is outlined in How to Retain an Ophthalmology Expert.

Mistake Two: Sending Summaries and Printouts Instead of Complete Records and Native Imaging

Ophthalmic diagnostic tests are digital data files. OCT scans (optical coherence tomography — cross-sectional retinal imaging) contain full scan sets whose automated measurements can be audited for segmentation errors; visual fields carry reliability indices that determine whether the test means anything. A faxed summary page discards precisely the information an expert needs, and a records service's "pertinent excerpts" can omit the one technician entry that decides the case. Reviews built on degraded records produce qualified opinions, and the qualifications become cross-examination material.

The fix: request complete charts from every provider and imaging in native digital format, specifically and by name. The full checklist is at What Records to Provide.

Mistake Three: No Baseline Vision Records

A vision loss claim is a before-and-after comparison, and files routinely arrive with no "before." Nobody requested the optometry records with a decade of refractions; nobody looked for the DMV screening or the pre-employment vision test. Without a baseline, a plaintiff cannot show the loss is new, and a defendant cannot show it is not — the omission cuts both ways, and it hands the causation question to whichever side eventually finds the old records first.

The fix: treat baseline documentation as a day-one discovery priority. Ask the client for every eye care provider they have ever seen, including optometrists, and request complete records from each. The comparison logic this enables is laid out in How Ophthalmologists Analyze Vision Loss Causation.

Mistake Four: Conflating Impairment with Disability

Impairment and disability are different quantities, and treating them as interchangeable distorts valuation in both directions. Impairment is a medical measurement — the loss of visual function, rated under the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition, from best-corrected acuity and visual field data and expressed as whole person impairment. Disability is the effect of that impairment on a particular person's life and work. A modest impairment can be occupationally devastating: a monocular field defect that would barely inconvenience an office worker may end a commercial driver's career. Conversely, a numerically significant impairment may leave many occupations untouched. Arguing a case on the impairment percentage alone — or assuming a small rating means small damages — misses where the value actually lies.

The fix: obtain the impairment rating properly, then analyze its functional consequences for this claimant separately. See whole person impairment for vision and visual disability evaluation.

Mistake Five: Assuming a Bad Outcome Means Negligence

Ophthalmic surgery has known, unavoidable complication rates. Retinal detachment occurs after properly performed cataract surgery; infection occurs despite flawless sterile technique; refractive surprises occur with correctly performed biometry. A devastating outcome is not, by itself, evidence that care fell below standard — and building a malpractice case on outcome alone invites a well-supported defense verdict. The converse error afflicts the defense side: assuming that because a complication is "known," its handling was necessarily adequate. Known complications can be negligently caused, negligently missed, or negligently managed — the recognized-risk label covers the occurrence, not the response to it.

The fix: separate the outcome from the conduct. The questions are whether the care at each step met the standard of a reasonable ophthalmologist, and whether any departure actually caused the harm — two distinct analyses, discussed at standard of care and cataract surgery standard of care. An early, candid expert read on both questions is the cheapest case evaluation tool available.

The Common Thread

All five mistakes share a root: treating ophthalmology as a records-review formality rather than a technical domain with its own evidence rules. The corrective is the same in each instance — complete records, early specialist eyes on them, and respect for the distinctions the specialty draws. None of it is expensive relative to what it prevents, and the side that gets these fundamentals right typically ends up arguing from the objective record while the other side argues around it.

A final note on symmetry: every one of these errors appears on both sides of eye injury litigation. Plaintiffs lose provable cases to missing baselines and degraded imaging; defendants concede unsupported claims for the same reasons. The objective record serves whichever party takes it seriously first.

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