1

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

2

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

3

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

4

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

5

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

6

Components of Informed Consent

The informed consent that you were given should, at a minimum, have contained: o An explanation of the medical condition which warrants the proposed procedure o An explanation of the purpose of the proposed procedure or treatment o A description of the proposed procedure or treatment including known and/or anticipated side effects o A discussion of the known risks (including all known conditions which might render the surgery inappropriate for a particular patient) and benefits of the proposed procedure or treatment, a presentation of alternatives to the procedure being contemplated and their known side effects, risks and benefits o A discussion of the consequences of not accepting the proposed procedure or treatment o A statement that the procedure may involve risks to the patient which are currently unforeseeable o A statement of the individual's right to withhold their consent to the proposed procedure and a statement that such refusal will not impact on the individual's cu

7

Presentation of Informed Consent

As important as the content of the Informed Consent document is, of equal importance is the manner in which the patient has been presented with the information. It is best if the patient has been provided with the informed consent at least a week in advance of the procedure. If you are presented with the document as you are sitting in the waiting room waiting for your surgery, it can well be argued that no matter how complete the document it is difficult at best , and impossible at worst for anyone, to review and digest the information which should properly contained therein in the limited time period provided let alone them being asked to do so while they are working with the additional stress and distraction of their pending surgery. The mere presentation of the document is, again, insufficient for a surgeon to have met their responsibility to the patient. First and foremost the document must have been provided in an understandable format. Layman's English, not 'doctorspeak', is e

8

Negation of Informed Consent

It is of particular concern when the Informed Consent is negated by the manner in which it is presented. Laser centers have been known to give cash incentives to their employees to get a non-refundable deposit from potential patients and to "move" patients from lower priced to higher priced surgeries to get a non-refundable deposit from "move" patients from lower priced to higher priced surgeries. Frequently informed consent documents are presented as "just something we have to get you to sign" or with "Don't worry, none of this ever happens, we just have to put it all in". Informed consent forms for PRK have even been give to those undergoing LASIK. Sometimes well intentioned office employees will negate the substance of the informed consent either just to try to calm an apprehensive patient or to keep business in the office. Particular attention should be paid to how and when you were given the informed consent documentation, who was present when you reviewed it and what role if a

9

The Presence of an Informed Consent Document Does NOT mean a Surgeon Has Obtained True Informed Consent

PLEASE NOTE: The mere fact that you have signed a consent form does NOT mean that you cannot sue for malpractice. A consent form does not give the health care provider a license to commit malpractice. While the execution of a typical consent form indicates acknowledgment of stated risks and complications associated with a given treatment or procedure, it does not relieve the health care provider from his or her duty of meeting the standard of care associated with such treatment or procedure. So many informed consent forms are deficient or are presented in such a manner as to devalue or negate entirely the fact that they were presented at all that it is important for you to understand that only a qualified legal and medical professional, each reviewing the totality of the facts unique to your case, can determine if there is any significance to the form you may have signed.

10

Medical malpractice

While there are various types of medical malpractice claims, generally speaking, you must usually show that a doctor patient relationship existed, that the doctor failed to perform to the appropriate medical standard, that the patient was injured and that the doctor's departure from that standard was what caused the injury the patient now sues for. It must be understood that the standard against which the surgeon will be judged varies depending on where the doctor is practicing. A doctor has a duty to give his patients proper medical care within a reasonable standard set by doctors within the same medical field. This "standard of care" test is used to determine whether or not a doctor has committed medical malpractice by doing something he should not have done or failing to do something he should have done, resulting in his medical care falling below the "standard" and thus constituting medical malpractice. If the medical professional fails to meet the standard of good medical practic

11

Types of Malpractice

Device Failure A recent study showed that most LASIK complications were related to the surgeon's experience with the procedure (Stulting RD, Carr JD, Thompson KP, Waring GO, Wiley WM, Walker JG. Complications of laser in situ keratomileusis for the correction of myopia. Ophthalmology 1999). The flap is created by a microkeratome (a surgical device that is affixed to the eye by use of a vacuum ring. When secured, a very sharp blade shaves a small amount of the cornea at a predetermined depth). Flap complications include, but are not limited to: o Failure of automated instrument to leave a hinge on the corneal flap, with the first incision o Loss of the corneal flap during the operation. o Loss of the corneal flap after the operation o Slipping of the flap and healing off center o First incision too deep (perforation of the eye) or too shallow, causing a hole in the flap o Invasion of the surface tissue into the central tissue of the cornea. o Infection of the cornea o Loss of

12

Damages

A person who is the victim of medical malpractice can sue for the injuries and all direct consequences of those injuries. "Direct consequences" include any mental or physical pain and suffering (including the full range of activities in which the injured person cannot engage and/or enjoy as a result of the injury) caused by the careless doctor and any lost wages, medical expenses or other economic damages resulting from the injury. The damages are intended to be such that they will place the injured party in the position they were in immediately before the defendant's negligent act. In other words, the plaintiff is to be compensated for all past, present, and future harm caused by the defendant's medical malpractice. It is essential that an attorney representing an individual injured in a refractive surgery procedure understand the life changing effect of failed eye surgery. Plaintiffs in these types of cases suffer the distinct disadvantage of walking into a courtroom looking exac

13

Statutes of Limitation

All states have laws (Statutes of Limitation) which define the time periods within which a law suit must be started or the right to sue may be lost. There are differing rules as to when the time clock starts to run and what, if anything, stops (tolls) the clock from ticking. Depending upon whom you intend to sue some deadlines may come mere months after surgery (especially true when a governmental entity or employee is the one being sued). If you believe, even remotely, that you may have a malpractice claim against the doctor who performed your surgery, you should immediately contact an attorney to confirm what the applicable Statute of Limitation is to make sure that your valuable right to sue is not lost.

14

If You Believe You Can Sue

If you think that you have a valid medical malpractice lawsuit, it is wise to seek out an attorney who handles cases of the type you are seeking to commence. Medical malpractice is an extremely complicated area of law that raises many complex and in