LASIK Lawsuits
Has your surgeon been sued?...
If you're considering LASIK, it's best to find out if the surgeon has been sued. Unfortunately, obtaining this information can be difficult. A trip to the county courthouse may be the only way to determine if there are current or past lawsuits against the surgeon. Some surgeons relocate to wipe the slate clean. You'll need to search the public record in all locations where the surgeon has practiced. Patients who sue may be forced to accept a "gag order" as part of their settlement agreement, which protects the surgeon's reputation.
White Wall of Silence
In July, 1999, as a rising tide of litigation seemed to threaten the LASIK industry, Dr. Marguerite B. McDonald, then-Chief Medical Editor of EyeWorld, called for a white wall of silence:
"We are only starting to ride the enormous growth curve of LASIK in this country. There will be more than enough surgeries for everyone to benefit if we keep our heads by sharing information openly and honestly and by resisting the temptation to criticize the work of our colleagues when we are offering a second opinion to a patient with a suboptimal result. Who was it who said, "When the tide comes in, all the boats in the harbor go up?"
LASIK patients with complications are routinely told to "give it time" while the clock ticks down on the statute of limitations for filing a medical malpractice lawsuit. LASIK surgeons encourage their peers not to help victims of LASIK malpractice.
Louis E. Probst, MD, when asked how to proceed with a LASIK patient who developed a severe, vision-threatening complication: "The most important step in this patient's care is to "kill him with kindness." The statute of limitations for medical liability may not have expired in some states.".
Cataract & Refractive Surgery Today, September 2007
Eric D. Donnenfeld, MD: "When there are large gray areas or your views
are discrepant with the norm, please keep your opinion to yourself and
outside of a court of law".
Cataract & Refractive Surgery Today, January 2006
If you are, or think you might be, a victim of LASIK malpractice, you might find this helpful:
Need an Attorney?
If you've experienced complications from LASIK and are considering suing your surgeon, you'll need an attorney. Before an attorney will take your case you'll need hard evidence that malpractice occurred, and you'll need an expert witness willing to testify on your behalf. Malpractice is not always black and white. Just the fact that you experienced complications does not prove malpractice. You'll need to show that the doctor failed to obtain 'informed consent', meaning you weren't properly informed of the risks, or that the surgeon fell below the 'standard of care'. You'll also have to prove that you suffered 'damages' that a jury can attach a dollar value to. If you have a strong case, you should be able to find an attorney who will take your case on a contingency basis, deferring all costs and fees until you receive an award or settlement. A lawsuit can drag on for years while the defense tries to wear you down. In the end, some malpractice victims find that the legal system is as broken and unjust as the LASIK industry. But some patients do find justice in the courts. Prevailing in a lawsuit will not restore your vision, but hopefully it will cover your medical expenses, help you financially to carry on with your life, and give you a sense of closure.
We have a list of attorneys who are known to have helped LASIK patients. If you are a plantiff attorney and would like to be added to this list, please email lasikcomplications @ yahoo.com (if you copy and paste this address you'll need to remove the spaces that I added to prevent spam).
Pupil Size Lawsuits
There have been several LASIK medical malpractice lawsuits based on pupil size. Unfortunately, these cases are challenging for the plantiff due to phony "expert" witnesses -- hired guns for the defense who are paid to give bogus testimony about pupil size. A true "expert" knows that pupil size is a critical factor in quality of vision after LASIK. When a pupil size case makes it to trial, and a jury sees all the evidence, these cases can be won. Here are two pupil size cases that caught the attention of the LASIK industry:
Malpractice lawsuits related to refractive surgery on the rise
OSN SuperSite Top Story 1/19/2005
From the article: "With a large increase in the volume of refractive surgical procedures in recent years, the number of malpractice lawsuits related to refractive surgery is also rising, said Neal A. Sher, MD, FACS. “We’re all able to be sued by any patient at any time. The situation is murkier than ever,” Dr. Sher said to attendees here at Hawaii 2005, The Royal Hawaiian Eye Meeting. Reasons for the rise in lawsuits include the large volume of cases, high patient expectations, inadequate training of some surgeons and unprofessional advertising, Dr. Sher said. Other causes can include offhand comments made to patients by other physicians or staff, and the increasing sophistication of plaintiff’s lawyers concerning refractive surgery, he said. Dr. Sher advised surgeons to adhere to guidelines set forth by the Federal Trade Commission, the American Society of Cataract and Refractive Surgery and the American Academy of Ophthalmology regarding appropriate advertising."
An Eye for an Eye: Professor James O'Reilly Speaks Out
"My interest in LASIK arose at a Christmas party. I have published 28 textbooks and 135 articles, and the Supreme Court called me the "expert" on FDA approval of medical device products. So when I sat next to an eye surgeon I asked him if he does a lot of LASIKs, and he replied "No, I don't think these are safe but it will be years before we see the effects and know for sure." That was a chilling comment, so I looked back at what FDA had required and was startled that so little experience base is needed before approval. That led me to the American Academy of Ophthalmology statistics person and to the insurance folks, and as I went forward with this little line of curiosity I came to recognize that there will be literally thousands whose injury will have no recourse -- and that they are the future victims of the inactivity today."
Jack M. Dodick, MD: The most urgent issue Opthalmologists face Today is Legal
"What are the most urgent issues that ophthalmologists currently face? Unfortunately, they are not medically related but legally and financially driven. Serious problems with regard to malpractice litigation, decreasing reimbursement, and encroachment by optometrists are challenging ophthalmologists. For example, decreasing reimbursements have resulted in many physicians’ opting out of therapeutic procedures such as cataract surgery. They feel that their livelihoods depend upon patient-reimbursed elective procedures such as cosmetic or refractive surgery. With improvements in surgical techniques, patients’ expectations have risen, creating a smaller permissable margin of error for surgeons and increasing malpractice rates. It is sad and telling to see the children of ophthalmologists pursuing careers outside of ophthalmology for these reasons." Source: www.crstoday.com/PDF%20Articles/1104/crst1104_5Q.pdf
Lawsuits Mount for LASIK: LA Times
Patients unhappy with the results of Lasik surgery are increasingly suing doctors and clinics for compensation, complaining that the procedure actually worsened their vision and, in the most extreme cases, left them legally blind. The settlements are encouraging attorneys to pursue additional cases, even as they shed light on the procedure's risks. Five recent lawsuits generated judgments in the million-dollar range, and at least 200 other cases are in the pipeline, according to Washington, D.C., attorney Aaron M. Levine, chairman of the American Trial Lawyers Assn.'s Lasik litigation group.
From the article: "Laser in-situ keratomileusis vision correction surgery malpractice lawsuits are on the rise, due in part to a growing number of web sites that encourage dissatisfied patients to sue surgeons. LASIK malpractice web sites garnering attention include seattleclassaction.com, lasikdisaster.com, and lasikinfocenter.net."
"To counter the negative perceptions and innacurate information people have been receiving about LASIK, the American Society of Cataract and Refractive Surgery will be launching a public information campaign in June. “We encourage people to get accurate and balanced information about the procedure,” said John Ciccone, ASCRS director of communications."