November 23, 2009
By: David K. Jaffe
LASIK was developed in 1999, and stands for Laser Assisted Sub-Epithelial Keratectomy. In layman's terms, it is an advanced laser technology for the correction of nearsightedness, farsightedness and astigmatism. The technology continues to advance, and now there is a procedure called IntraLASIK and LASIK. Both of these procedures sculpt the inner layers of the cornea. Every year more than one million LASIK procedures are performed in the U.S. For some patients, LASIK provides freedom from glasses or contact lens. Athletes such as Tiger Woods, Gregg Maddus and Tiki Barber have endorsed LASIK, as have countless other celebrities such as Eric Clapton and Cindy Crawford.
The downside of the recent popularity of LASIK is that often eye clinics organize the procedures as an assembly line, with the result that there frequently is improper screening of patients by optometrists with disastrous results to the patient. Brown Paindiris & Scott is involved in a number of cases representing such patients. There are typically three theories of liability to consider in LASIK cases: medical malpractice claims; product liability claims; and consumer fraud claims. Under the heading of medical malpractice, the claims will traditionally be directed at the LASIK surgeon. However, there may be instances when a wider net is indicated, and other medical providers should also be considered as potential defendants. Typical claims involve the following failures:
1. Poor surgical candidacy/improper screening;
2. Failure to obtain informed consent;
3. Improperly performed surgical procedure; and
4. Inadequate post-operative care.
The issue of informed consent can be different in LASIK cases as compared to other types of cases. LASIK is big business. Surgeons spend millions of dollars on advertising. As a result of the media bombardment, the subliminal message that LASIK is good for us, safe and effective has become engrained in the public's consciousness. Some of the advertising paints an unrealistic impression of what LASIK can accomplish and the risks of the procedure. A surgeon's appearance on a national TV show showing him performing LASIK on a patient who then gets up from surgery and says "I can see perfectly" is a mighty marketing tool. In the LASIK cases that Brown Paindiris & Scott handles, we endeavor to obtain all advertisements, web sites, testimonials, videos, etc., that the physician or practice was using during the relevant time period.
There are other potential problems with informed consent, particularly the timing of obtaining consent. The written disclosures of the potential problems should be provided to your client at least days in advance, not minutes before surgery. Unfortunately, patients may be rushed through the surgical procedure once the bill is paid and may not even see the surgeon after the initial consultation until sitting in the operating chair. In some cases, the potential client may not even meet the surgeon until then.
There should be a signed consent form for every procedure the doctor performs, including any and all enhancement procedures. Although LASIK surgeons generally acknowledge that the first surgery may only be the first step in the life long management of a patient vision, most patients don't understand this, and don't realize that they are committing to future surgeries. To date, there has been no FDA determination regarding the safety and effectiveness of enhancement surgeries.
Surgical misadventures and errors can result in severe complications. While improvements such as pupil tracking devices have reduced many errors, surgeons must still pay strict attention to operation of the laser.
Brown Paindiris & Scott is in the vanguard in representing clients who have had disastrous LASIK results in order to bring them just compensation for the devastating effect it has had on their lives. If you have any questions regarding laser eye surgery, please call any of the attorney is our personal injury practice area.