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LASIK Surgery Malpractice

What Is LASIK Eye Surgery?

Lasik surgery uses laser technology to correct a person's vision, so they have better or even perfect vision without corrective lenses. For people who have had to wear corrective lenses for most of their lives, Lasik surgery can seem to offer the possibility of freedom from the inconvenience of contacts and glasses, while improving vision beyond what corrective lenses can achieve. Among the conditions that can be corrected through Lasik procedure are nearsightedness, farsightedness and astigmatism.

“Lasik” is a brand name for a kind of eye surgery that has become quite common. The medical term is refractive surgery. Refractive surgery entails using a laser to make a tiny opening in the corneal tissue of the eye, and then the laser is used to reshape the eye so as to eliminate vision problems. Most Lasik surgeries are successful and do not cause side effects, but like any surgical procedure, Lasik surgeries carry some risk of long-term problems. Of course, if it is not performed properly or done on people who should not have it, it might cause significant vision problems.

What Are Some of the Health Risks Associated with Lasik Eye Surgery?

Many patients who undergo Lasik report some complications and side effects after the procedure. The most commonly reported complication is dry eyes, or a “gritty” or “sand-like” feeling when blinking the eyes. The dry eye condition may be temporary or it can be permanent in some patients.

In some cases, people develop more problems with their eyes after getting LASIK eye surgery than before the procedure. Such new problems are a major hassle as you get the surgery to improve your vision and instead of that, your eye problems get worse.

Although these problems can occur without medical negligence, a lot of them are caused by unqualified doctors in New York, or any other place, who perform the surgery because it is a lucrative business. If you have developed more vision or eye problems after getting LASIK surgery, you may have a medical malpractice claim for compensation.

Other commonly reported consequences of Lasik surgery include the following:

  • Vision problems or even loss of vision;
  • Light sensitivity;
  • Over or under correction of a vision problem;
  • “Halos” or “starbursts” around sources of light viewed during the hours of darkness;
  • Pain associated with the procedure;
  • Hemorrhaging or bleeding;
  • Induced eye conditions such as astigmatism.

Medical malpractice occurs if a doctor or surgeon fails to provide the appropriate standard of care for a patient and that failure results in injury to the patient. The Lasik procedure itself should not cause injury if it is done correctly on the appropriate patient. However, one of the main risks of Lasik comes from the fact that surgeons sometimes do not properly identify pre-existing conditions in patients that make performing the surgery too dangerous for them. And, of course, there is always a risk that a surgeon will perform the surgery incompetently in some way.

One of the most common conditions that indicate that Lasik surgery is not appropriate for a patient is known as keratoconus, a condition in which a person's cornea, the transparent front part of the eye, is cone-shaped. A number of other corneal defects can make it difficult to do Lasik surgery on the person successfully. One of the most common mistakes made by Lasik surgeons occurs during the pre-surgical screening for these corneal defects. Performing the surgery on people with these defects could lead to cases of Lasik malpractice.

If a person experiences any of the conditions noted above after Lasik surgery or treatment, they may wish to consult with an experienced medical malpractice lawyer for guidance in how to proceed. The lawyer can refer a person to a doctor who can give a reliable opinion as to whether they may be the victim of malpractice. The important thing is that a person who has suffered injury from Lasik surgery may be able to recover damages through a civil lawsuit claiming medical malpractice.

Is Lasik Eye Surgery Regulated by Law?

The U.S. Food and Drug Administration (FDA) regulates the sale, distribution, and use of all medical devices including the laser devices used in Lasik surgery. However, the FDA does not have wide authority to regulate a doctor's practice, even if it involves the use of Lasik surgical equipment. The FDA does not regulate eye surgery generally or Lasik eye surgery in particular.

For example, the FDA does NOT have the authority to:

  • Set the price that a doctor can charge for Lasik surgery;
  • Require doctors to make certain disclosures to their patients regarding Lasik eye surgery;
  • Compel a doctor to provide an informational booklet to the patient from the manufacturer of the Lasik surgical device;
  • Create a rating system for any medical device regulated under FDA rules.

So while doctors always have a duty to exercise professional care, they also have a fair amount of freedom when it comes to suggesting Lasik procedures to their patients.

Most Lasik lawsuits claim some manner of medical malpractice, such as a doctor's failure to perform Lasik surgery properly. Lasik surgery malpractice often involves a doctor who performed the surgery on a patient whose physical condition indicated that the patient was not an appropriate candidate for Lasik surgery.

What Should I Do If I've Been Injured by Lasik Eye Surgery?

If a person believes that they have suffered injuries due to a Lasik eye surgery procedure, they may wish to file a medical malpractice claim. Proving medical malpractice usually involves proof that the doctor breached their duty of care to a patient and that their breach was the actual cause of injury to their patient.

If a person is considering filing a Lasik eye surgery lawsuit, a person should:

  • Keep all bills for medical care of their eyes, receipts for treatment, and other documents related to medical care and billing;
  • Create a diary or log of the entire Lasik process from beginning to end;
  • Make a written record of their injuries;
  • Make a note of the condition of their eyes before the Lasik procedure and what motivated them to get the procedure..

Lastly, a person should always be cautious when signing agreements and waivers in the office of their doctor or health care provider. Many medical care providers require their patients to sign a consent form or release waiver before undergoing Lasik eye surgery.

Be sure to read these documents carefully, as they might limit a person's ability to file a lawsuit in connection with the Lasik treatment. If a person is asked by a doctor or surgeon to give up rights to file a lawsuit or go to court if there is a dispute about treatment, a person should not sign such a document but should find another doctor or surgeon.

Can I File a Claim?

In order to file a lawsuit for malpractice in connection with Lasik surgery, the elements of negligence must be present. The first two elements of negligence are a duty of care and breach of the duty. Doctors and surgeons owe a duty to provide patients with the level of care that is appropriate to their condition. If they breach this duty, and the patient can prove that they suffered injury as a direct result, a medical malpractice suit can be filed.

If a person consults an experienced medical malpractice attorney about problems they experience after Lasik surgery, the attorney is likely to refer them to a surgeon who will assess their case and review the medical records relating to the treatment. The surgeon would then serve as an expert witness in the case to testify about the alleged malpractice.

Many people who report side effects or symptoms after Lasik surgeries report problems such as:

  • Blurred vision
  • Double vision
  • Poor nighttime vision
  • Chronic pain
  • Undertreatment or overtreatment
  • Seeing halos around light sources
  • Glares or starbursts
  • Dry eyes
  • Inability to perceive depth or contrast
  • Permanent blindness

For some people, the side effects are persistent or so obtrusive that they interfere with their performance of the duties of their employment and daily life activities. Permanent damage has been done to their corneas, and later they have had to undergo corneal transplants in order to restore their vision.

It is possible for a case of malpractice to be settled by the parties before there is a trial. So the attorneys for the patient and the doctor exchange information and, with the consent of their clients, negotiate an amount that the doctor pays in settlement. A lawsuit for Lasik malpractice can lead to a Lasik lawsuit settlement also.

For example, a Lasik malpractice lawsuit in Maryland against a Lasik surgeon was reportedly settled by the parties in 2013. The amount paid by the surgeon to settle the case was not disclosed, but it was reported that the man had many of the negative consequences of Lasik surgery including double vision, loss of depth perception and headaches.

What Parties Are Liable in a Medical Malpractice Lawsuit?

Medical malpractice lawsuits can sometimes be difficult to deal with, because the plaintiff may already be suffering from various medical conditions in addition to the malpractice. Part of the difficulty with some medical malpractice lawsuits is in determining who the liable parties are. 

Depending on the specific facts of the case, it may be possible to hold the following parties liable for medical malpractice injuries and losses:

  • Hospitals: Health care organizations can often be liable for errors in patient treatment. An example of this is with emergency room negligence, or where the patient receives the wrong type of treatment
  • Physicians and Surgeons: Under principles of vicarious liability, it is sometimes possible to hold individual physicians and surgeons responsible for injuries, in addition to the hospital or health care provider. This may depend on individual decisions of the health care professional
  • Nurses and staff: Administrative errors can often lead to some injuries or economic losses, especially if there is a major oversight or miscommunication of vital patient information
  • Pharmacies and pharmacists: Prescribing the wrong type or dosage of medicines can lead to injury.  Also, giving a patient the wrong set of instructions can lead to serious injury

In addition, it's also possible for medical malpractice to result from improper advice being given to a patient, not just negligent treatment. An example of this is where the patient receives the wrong follow-up instructions from a health care practitioner or home nurse.

What If More Than One Party Is Liable for the Injuries?

Another concern with medical malpractice liability is that sometimes more than one person or party can be responsible for the injuries. In addition to any actual procedures, medical treatment has several different stages, such as intake, diagnosis, pre-treatment consultation, and follow-up. Along this chain of procedures, various errors can occur.

For example, a nurse may receive improper instructions regarding the dosage of a certain anesthesia. The question then becomes whether the nurse should have recognized whether to correct the dosage. This can depend on many different factors, such as the nurse's skill level, as well as the nature of the instructions received. 

Most states have mechanisms for determining how to deal with liability between different parties. This is known as the “division of liability” in a personal injury claim, and result in the liable parties having to pay certain percentages of the damages award. Again, this is a very complicated determination that depends on many factors and is different from state to state. It usually requires the expertise of a lawyer and may also require the testimony of medical experts as well. Different types of evidence need to be examined, such as hospital reports, medical receipts, and doctor's notes.

Do I Need a Lawyer for a Lasik Eye Surgery Lawsuit?

Lasik eye surgery lawsuits can sometimes become complicated and would probably require the involvement of at least one expert medical witness. For example, you may need the opinion of an expert to determine the cause and extent of any injuries suffered as a result of LASIK eye surgery. Of course, a medical expert would be needed to identify the malpractice of the surgeon who performed the Lasik.

If the consequences of Lasik surgery have an impact on your ability to do your job, you may need still other experts as well. An experienced personal injury lawyer knows how to work with expert witnesses to help you make your best case.