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NJ Woman Can't Close Her Eyes After Surgery

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By Stephanie Rabiner, Esq. on April 04, 2011 12:59 PM

After 33 eyelid surgeries--3 cosmetic, 30 reparative--a woman can't close her eyes. So she sued.

A jury in New Jersey last week awarded $115,000 to Marilyn Leisz, who sued her plastic surgeon after a failed 2005 eyelid surgery.

She lives in constant fear of losing her eyesight.

Prior to her 2005 surgery, Marilyn Leisz had two others: one to fix a sagging eyelid, and one cosmetic, reports ABC News.

During trial, Leisz's attorney provided testimony explaining that prior eyelid work should have precluded Leisz from a third surgery, reports CBS New York. Also disputed was whether Marilyn Leisz was properly warned of the risks, which included the inability to close one's eyes.

Leisz expected an award of $500,000 in her negligence suit according to ABC News. After all, the woman can't close her eyes, perpetually subjecting herself to injury.

However, most states take a comparative negligence approach.

Comparative negligence allocates fault to both the plaintiff and defendant. Only the portion of the overall jury award that is attributable to the defendant is awarded to the plaintiff.

Basically, a jury award is reduced by how at fault the plaintiff is, not permitting her to recover for her own negligence.

Chances are that the jury believed that Marilyn Leisz was properly warned of any risks by her surgeon, but found that maybe he shouldn't have performed the surgery in the first place.

In other words, while the surgeon was a bit negligent, it was overcome by Leisz' assumption of risk, lowering any recovery despite her injuries.

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