Lasik Eyes Surgery - LASIK Lawsuits Article

Author

LASIK Lawsuits Article

Sandy

2006-03-22, 4:23 pm

Should You Take a Lasik Case?

by Diana Digges

Lawyer's Weekly USA (2002)

Complaints about laser eye surgery are coming thick and fast, but
plaintiffs are having trouble finding attorneys to handle them.

So numerous are the queries that Surgical Eyes, a non-profit
organization that helps people with complications from LASIK surgery,
has expanded its website to educate people about whether or not they
may have a legal claim. The website also maintains a list of attorneys
around the country who will handle LASIK claims - and they're looking
for more.

"I get phone calls or e-mails on a daily basis from people who have
been harmed," said Ken Keith, who launched the LASIK part of his law
practice as the pro bono director of legal services for Surgical Eyes.

"My belief is that there have to be thousands of plaintiffs looking for
a place to nest. Candidly, I have trouble finding attorneys who will
take these cases," he said.

So why are lawyers LASIK-shy?

A number of reasons, say attorneys who've handled these claims. Even
though there are several hundred suits in the pipeline, there are very
few reported cases to give any guidance on awards. Another obstacle is
that few doctors are willing to step forward as expert witnesses.
Furthermore, lawyers have only the vaguest understanding of the injury
itself, and even less of the emerging technologies that can measure
those injuries and persuade a jury of damages in visual quality as a
result of the surgery.

"The problem is that lawyers don't understand that even if people score
20/20 on a visual acuity test, that says nothing about the numerous
subjective problems they experience, like night vision, haloes, star
bursts, ghosting," said Keith.

But new technologies that measure abnormalities in vision that
otherwise go unregistered promise to change the landscape in Lasik
litigation. They will allow attorneys to present concrete measurements
of the visual disturbances that plague their clients. (See accompanying
story)

"They're going to be able to allow us to give an objective
representation of subjective complaints of the plaintiff," said Keith.
"It will be wonderful - but they're all still in their infancy."

Pre-op Screening

Such technologies might make it easier for plaintiffs to sell their
cases to an attorney - and eventually to a jury - but in the meantime,
how should an attorney evaluate a possible case?

Half, or more, of the errors in LASIK still occur as a result of sloppy
evaluation of candidates, according to attorneys in the field.
Irregular astigmatism, keratoconus (distortion of the cornea),
glaucoma, cataracts and diabetic retinopathy are all conditions that
should send up a red flag during the evaluation.

But poor candidates for the surgery also could include people who have
high myopia, large pupils or thin corneas.

The threshold for successful treatment of myopia is usually less than
eight diopters, according to a January statement by the American
Association of Ophthalmologists. But lawyers report cases of patients
requiring 10 diopter correction or more being cleared for the surgery.

As for pupil size, the ophthalmologist should check that it is measured
in different kinds of light. If the "ablation zone" - area of cutting
with the laser - is smaller than the nighttime pupil size, the effect
is frayed edges and loss of nighttime vision.

Having large pupils in and of itself may not be an absolute
contraindication, but such candidates are more likely to have problems.

"That raises the legal question of whether that particular issue has
been explained to the patient," said Barry Knopf, a New Jersey attorney
who is handling several claims.

Since the principle of LASIK surgery is to flatten the cornea enough to
correct distortions, thin corneas can also create a degree of risk.

"If you have 550 microns and take away 200, you've got 350 left, which
is fine. The magic threshold appears to be 250; you don't want to leave
somebody with less than that," said Keith.

Equipment And Informed Consent

The problem of ophthalmologists using laser machines not approved by
the FDA seems to be a thing of the past, but off-label use, without the
patient's knowledge or consent, is widespread.

Since the machines are bulky and expensive, most surgeons have only a
few of the more than two dozen lasers approved by the FDA for LASIK or
other refractive surgeries. Each of the machines is approved for
correction of vision within very specific parameters. Not all surgeons
stay within the parameters designated for the particular machine.

"If the patient goes to a surgeon with a laser that has not been
approved to handle someone's prescription, that surgeon should not be
promising a particular outcome. Instead, the surgeon goes ahead and
blasts and hopes - that's off-label use. It's not illegal, but it is
malpractice, if he fails to make it part of the informed consent to the
patient," said Keith.

While the FDA concerns itself just with labeling, its website is a gold
mine of information on the various machines used. Surgical Eyes founder
Ron Link advises attorneys to check the data that laser manufacturers
must submit to the FDA as part of the Pre Market Approvals studies.

"Go to www.fda.gov and check the manufacturers' data. You can get the
success rates within certain ranges of myopia, as well as the incidence
of different types of visual disturbances, depending on how much
correction the person requires," said Link.

Although the medical literature details the numerous complications that
can result from LASIK, informed consent documents are often still
inadequate, or the circumstances under which the patient signed are
rushed.

The statute of limitations is another issue plaintiffs' attorneys have
to contend with, partly because patients go back for "enhancement"
surgery, which they hope will resolve their problems.

Several attorneys have argued that LASIK is a good candidate for the
continuous treatment doctrine. Essentially, practitioners keep the
patients coming into the office, telling them that the symptoms they
are suffering from are temporary. Plaintiffs' lawyers argue that the
statute of limitations should not begin running until the doctor stops
stringing the patient along.

"I think Iowa will adopt the continuous treatment rule if presented
with an appropriate case - and I think I've got one," said John Holmes,
an attorney in Waterloo, Iowa, who has handled several refractive
surgery claims.

His client had complications resulting from surgery in 1997. For 18
months the surgeons strung him along with promises that an enhancement
could always take care of the problems, said Holmes. Then, in November
1998, they said an enhancement was impossible. When the man sued in
2000, the defendant filed for summary judgment on the grounds that the
claim was old. Holmes successfully argued that the statute of
limitations didn't begin to run until November 1998.

"I see a lot of surgeons doing a lot of handholding to get people
beyond that statute of limitations," agreed Keith. "Get the doctor's
records and search for some indication of continuous treatment. Try to
see if there's a point where the free care stopped."

Evaluating Potential Clients

Screening clients is particularly tough in LASIK litigation. Since
there is only a handful of reported cases, attorneys more than ever
have to put themselves in the place of a juror. How would this
plaintiff stack up? Is he or she credible? Do their self-reported
symptoms sound convincing?

As "aberrometers" - instruments to measure optical aberrations - become
more developed, objective data will be available to corroborate
self-reported injuries. In the meantime, credibility of the plaintiff
is more important than ever. Keith and his partner spend two hours on
the initial intake to get a sense of who the plaintiff is and how he or
she would present to a jury.

"This isn't a broken leg - I can't pull up a similar injury in a jury
search, there are so few reported awards, so I have to spend more time
sizing up the client," he said.

Several attorneys warned against the "professional victim" who wants to
jump on a bandwagon of mounting lawsuits. "That's pretty easy to find
out when you sit down to talk to somebody for an hour and find out that
none of the consequences of their lives are their responsibility," said
Knopf.

Nor do you want a person who's been involved in multiple lawsuits. And
you don't want to be the fifth or sixth lawyer in line, he cautioned.

"Their anger at previous lawyers is as great as anger at their doctor,"
said Knopf. "You also want to be very careful about people who want to
make a killing, who hope to retire. And, finally, avoid the person
who's self-righteous, where the only thing they're concerned about is
getting the license of the physician pulled."

Key in evaluating a potential plaintiff, of course, is the impact of
the disability on the person's life.

"How old are they, what do they do for a living, and how does this
affect their life? Is the client a truck driver who has problems
because he can't see at night, or is he a retired algebra instructor
who doesn't ever want to look at a blackboard again?" said Holmes.

Attorneys who are currently handling cases have clients whose
experiences of LASIK complications are as individual as they are. But
all of them are functionally impaired, whether they are artists who can
no longer see clearly enough to do calligraphy or delivery drivers who
are lost on the highway when dusk falls.

"By the time they get to me, most of these people cannot drive at night
at all. They can't go to movies because the change in the light on the
screen causes severe discomfort and pain," said Richard Robinson, a
Buffalo attorney who won the first substantial LASIK verdict. "They
can't stand snow because of the glare. They can't stand the heat in
offices and homes because they have dry eyes. It's extremely
distressful."

Since the cases are costly to prepare, lawyers caution carefully
investigating the impact of the disability.

"I don't want to get involved in a case unless there's been a real
functional disability to the client. A firefighter comes in and says he
can't fight fires, can't go out at night, that's someone who's
suffering severe, functional disability," said Knopf. "On the other
hand, if someone says they see haloes when they drive, but not all the
time, that person obviously has complications, but I wouldn't want to
get involved. Frankly, it's a matter of economics. These cases are very
expensive."

Attorneys maintain that experts cost them between $500 and $1,000 an
hour - if you can get them to testify.

"There's a white wall of silence that I have not encountered in too
many other med-mal areas," said Keith.

Aggravating the "professional solidarity" syndrome is the fact that
since LASIK is a young field, all the doctors are in the same general
age group and all are current practitioners. They're all toiling in the
same trenches, and "there are no retired surgeons to rat on the younger
ones," as one attorney put it.

But there are cracks in their ranks. The statement issued in January by
the American Association of Ophthalmologists acknowledges that LASIK is
not right for everyone. And even within the refractive eye surgery
industry itself, ophthalmologists are admitting there are problems.

According to Jeffery Machat, a co-founder of TLC Laser Eye Center, the
industry's leading LASIK provider, "at least 5 percent of patients have
qualitative visual problems, even if they can see 20/20, and 1 percent
will have more significant complications that affect their visual
acuity as well as visual quality."

So numerous are these people that Machat's laser center is now
dedicating 50 percent of its time and efforts to repairing the damage
wrought by his colleagues.

More than four million people have had some form of refractive eye
surgery since 1996, most of them quite happily. But if Machat's figures
are right, people with LASIK complications could number as high as
200,000. That's a lot of potential claims.

Questions or comments can be directed to the writer at:
ddigges@lawyersweekly.com

Ragnar

2006-03-22, 4:23 pm

SE is non-profit mostly because they fail to bring in any money.
The article you reference below is from 2002 - and it mentions how SE
has expanded it's website... just before that website sunk into
oblivion.

On 18 Mar 2006 23:35:04 -0800, "Sandy" <sandy@savvysneaks.com> wrote:

>Should You Take a Lasik Case?
>
>by Diana Digges
>
>Lawyer's Weekly USA (2002)
>
>Complaints about laser eye surgery are coming thick and fast, but
>plaintiffs are having trouble finding attorneys to handle them.
>
>So numerous are the queries that Surgical Eyes, a non-profit
>organization that helps people with complications from LASIK surgery,
>has expanded its website to educate people about whether or not they
>may have a legal claim. The website also maintains a list of attorneys
>around the country who will handle LASIK claims - and they're looking
>for more.
>

Glenn - USAEyes.org

2006-03-22, 4:24 pm

It would appear Keller is having trouble finding something either
current or relevant.

serebel

2006-03-22, 4:24 pm

Keller being current or relevant? That's like asking for one piece of
truth on the "flappie", never gonna happen.
Link must be back dooring Keller again for her to plug SE.