A brief overview of what can go wrong with refractive eye surgery and what can be done about it.
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Can You Sue?
As attorneys practicing in the field of Opthamalogic malpractice barely a day goes by in which we are not asked this question. Our decision to accept or to reject a matter presented to us is weighed just as heavily as the decision to undergo the surgery was weighed by our potential client. There can be no doubt that refractive surgery can do harm. If you are reviewing this website it may be because you have been injured by refractive surgery and you want to know if there is anything you can do about it. An old legal axiom "Mere injury, without fault, will not stand" says it all for attorneys practicing in the field of medical malpractice. Simply put, it is not enough that you have been injured as a result of the refractive surgical procedure you have undergone, you must establish, to the standard set by the state in which you were injured, the failure or failures which have resulted in the injuries you have sustained. This article will attempt to identify those areas where the failure
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Deceptive Advertising
Unlike most other areas of medical malpractice, some claims against laser eye surgeons and the corporate giants behind them may stem from the manner in which they attracted you to refractive surgery generally and to them in particular. Refractive surgeons and the businesses surrounding them are competing in a manner that medical professionals never really have before, they are advertising (see Ebay auction as an example). They find themselves having to fight for patients in an increasingly difficult marketplace. Price competition all but ignores the question of whether a surgeon has the requisite skill and experience to perform an operation on anything as fragile and as important as one's eyes, but if the only criteria used in selecting a surgeon began and ended with a dollar sign, fault may well lie on both sides of the scalpel. Of greater interest from the point of view of attorneys are the promises made in the ads of refractive surgeons.
Federal and local consumer protection laws
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Failure to Obtain valid Informed Consent
Informed consent is a process, not just the document your surgeon or his staff will ask you to sign at the time your surgery is to be performed. Information must be presented to enable persons to voluntarily decide whether or not to undergo the contemplated procedure. The procedures used in obtaining informed consent should be designed to educate the patient in terms that they can understand. Therefore, informed consent language and its documentation (especially explanation of the alternatives, risks and benefits) must be written in "lay language", (i.e. understandable to the people seeking the surgery). The consent document must be revised when deficiencies are noted or when additional information will improve the consent process.
Statutes define lack of informed consent as meaning the failure of the person providing the professional treatment to disclose to the patient such alternatives to the procedure and the reasonably foreseeable risks and benefits involved in the operation as a
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The Standards
Once you have shown that the information provided was insufficient you will have to meet one of three standards to be able to sue:
1) Reasonable physician standard: what would a typical physician say about this intervention? This standard allows the physician to determine what information is appropriate to disclose
2) Subjective patient standard: what would this patient need to know and understand in order to make an informed decision? This standard is the most challenging to incorporate into practice as it would appear to require the tailoring of information to each individual patient.
3) Reasonable person standard: Would a reasonably prudent person in your position (NOT YOU) not have undergone the operation had they been fully informed.
You may then, depending on the jurisdiction where you sue, have to show not only 1)that the information provided was not sufficient 2) That you have met the applicable of the three standards above but also 3) that the injury sustained was the in
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The Purpose of Informes Consent
Make no mistake about it informed consent was and is, primarily, a device used for the protection of doctors by doctors. They give it to you to protect themselves from law suits. That's not, obviously, how the document was intended but it, like many well intended things, has had its use perverted by those with a self serving agenda.
Initially the Courts viewed the failure to provide adequate information upon which one could base their consent to have a surgical procedure as negating the consent itself. It made sense. If someone doesn't give you all of the known information before you decide to go ahead, your decision to go ahead shouldn't be held against you. The Courts treated operations occurring with defective consents as an unconsented touching or a battery (in some states, an assault). In that way almost anything that happened could form the basis for a suit against a doctor. The Courts came to hold that this approach placed too great a burden on the medical profession (can you
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