Risk Management



Jury Education Averts Potentially Large LASIK Verdict

By Richard Isom

OMIC Claims Associate

 Digest, Winter 2003

ALLEGATION  Negligent LASIK from decentration and resulting in multiple images.

DISPOSITION  Plaintiff verdict refunding cost of surgery.

Case Summary

A 46-year-old female was interested in having LASIK surgery. She presented to the insured with complaints of cloudy and blurry vision, particularly in the right eye. VA with correction was 20/30+2 OD and 20/25-2 OS. The patient returned a week later to complete the surgical workup, including preoperative studies and informed consent. Three weeks later, she underwent LASIK on the right eye. On the first postop day, the patient complained of cloudy and blurry vision. On the second postop day, she reported seeing triple images. Her vision was less cloudy but continued to be blurry. Uncorrected VA OD was 20/200. The patient was seen frequently by the insured over the next week. On the twelfth postop day, when there still was no improvement in vision, the insured sent the patient for a second opinion. Corneal topography later that same day determined that the ablation zone was decentered temporally.

The patient returned to the insured for surgical enhancement. Prior to the enhancement, VA was 20/60. Six weeks following the initial LASIK, the patient underwent surgical enhancement by the insured. In the immediate postoperative period, VA was 20/80 with triple images. One month later, VA was 20/60 with multiple images. Last reported VA was 20/30, but the patient continued to complain of multiple images.

Analysis

The patient eventually filed suit against the insured, alleging negligent LASIK from decentration and resulting in multiple images. Experts for the plaintiff alleged that the insured lacked the expertise to perform the procedure and most likely misaligned the beam causing decentration. They were critical of the insured for inadequate charting.

The defense countered that the decentration was most likely caused by the patient’s failure to fixate properly because even very subtle eye movement, undetectable by the physician, can cause decentration. Further, the defense argued that decentration is a known complication of LASIK, that it can occur in the absence of negligence, and that it was more likely to occur given the technology available at the time of the plaintiff’s surgery. The jury was advised that every procedure has risks, that there is no guarantee of success as stated in the informed consent, and that recent advancements in technology are now able to track a patient’s eye movements and help reduce the likelihood of this particular risk.

Risk Management Principles

LASIK surgery continues to undergo frequent advancements in technology and technique. Available technology at the time of this surgery did not allow for detection of subtle patient eye movement, whereas current technology has made it possible to detect minor eye movements and avoid most alignment problems. Additionally, new technology has made correction of unsatisfactory results a possibility, thus potentially reducing the damages a plaintiff is likely to be awarded.

At trial, experts, witnesses, and attorneys on both sides were prepared and well received by the jury. A battle of the experts might have ensued had the defense not presented a timeline charting available LASIK technology and potential complications at the time of and subsequent to the surgery in question. This refuted the plaintiff’s claim that the insured ophthalmologist was negligent in not detecting the eye movement that caused misalignment of the beam and resulted in decentration. As a result, and because of the education they had received during trial about the potential risks and benefits of LASIK and available enhancements to correct poor results, the jury was disinclined to award a large verdict and decided the plaintiff was entitled only to the cost of surgery.

That LASIK is now perceived by the general public to be a relatively benign procedure was apparent in a local newspaper article about the trial. The article reported that 70% of LASIK procedures are completely successful and that less than 5% of LASIK patients suffer negative side effects. Given the number of successful procedures and the advancing technology, the average juror may no longer view LASIK as the frightening and dangerous procedure it once was thought to be.

 

 

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