Litigation of LASIK Cases
LASEK 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 many patients, LASIK provides almost miraculous 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. Spinella & Associates are 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. Typical claims involve the following categories:
- Poor surgical candidacy/improper screening;
- Failure to obtain informed consent;
- Improperly performed surgical procedure; and
- 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 which Spinella & Associates handle, 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 additional factors regarding potential vitiation of the informed consent document, in particular, the timing and circumstances of the document. The consent document 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 check 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 sitting in the chair minutes before surgery.
There should be a signed consent form for every procedure the doctor performs, including any and all enhancement procedures. Although LASIK surgeons now seem to embrace enhancement procedures as a step in the life long management of a patient, most patients probably have not caught on that LASIK may be a long term commitment for 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. Modern technical improvements like pupil tracking devices seem to have decreased the incidence of decentered ablations. However, surgeons must pay strict attention to operation of the laser. Poor laser technique can cause higher order aberrations, still untreatable even with software improvements.
Spinella & Associates 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.