Supreme Court upholds trial verdict clearing Cedar Rapids pharmacy

DES MOINES - A woman who claimed her eyes were seriously damaged as a result of a pharmacy's mistake will not get a new trial based on undisclosed evidence, according to an Iowa Supreme Court decision Friday.

Misty Whitley filed the lawsuit against C.R. Pharmacy Service, Inc., claiming it improperly prepared a prescription used on her eyes after undergoing a corneal scraping procedure for vision problems resulting from Lasik surgery.

According to the ruling, Dr. Lee Birchansky, an ophthalmologist at Fox Eye Clinic in Cedar Rapids, performed the surgery and ordered a prescription of  mitomycin-C to treat Whitley's blurry vision and prevent scaring from the procedure.  Dr. Birchansky reported he applied what he believed to be the prescription during the surgery.

Several days later, Whitley's eyesight deteriorated.  She eventually underwent corneal transplant surgery on both eyes and later had one eye surgically removed.  A University of Iowa doctor concluded Whitley's condition was caused by an excess concentration of mitomycin-C.  Testing on the medication from Dr. Birchansky's office showed no traces of the compound, prompting Whitley to file the lawsuit.

About a month before trial , the pharmacy manager discovered a receipt and log showing Birchansky's office manager had picked up the prescription for Whitley after the surgery had been performed, according to the ruling.

The pharmacy's attorney did not notify Whitley of the new evidence before presenting it at trial.  Whitley's attorneys objected but the court found there was no legal obligation to disclose the evidence, stating the documents had been discovered in good faith before trial and they contained information to find the truth, according to the ruling.  Whitley appealed, but the Iowa Supreme Court upheld the district court's decision.

Last February, Whitley re-filed a lawsuit against Birchansky for medical malpractice and fraud for her injuries. She had initially filed a lawsuit against him in 2007, along with the pharmacy but dropped him from the suit when she was told the medication caused her injuries.  The new lawsuit claims Birchansky's office applied the wrong medication and then tried to cover up the mistake.  Whitley is asking damages for pain and suffering, mental anguish, hospital and medical expenses and loss of earnings.