Sandy Keller had simply wanted to correct her
nearsightedness and stop wearing contact lenses when she had laser eye
surgery in September 1999. Instead, she ended up suing her surgeon and
optometrist, claiming that a botched surgery left her with damage so
severe she may eventually need corneal transplants.
The case was
settled for $260,000 this last fall. "But no amount of money is going to
fix this," says the 42-year-old Torrance woman, who now uses an arsenal of
medications in her eyes just to get through the day.
Patients
unhappy with the results of Lasik surgery are increasingly suing doctors
and clinics for compensation, complaining that the procedure actually
worsened their vision and, in the most extreme cases, left them legally
blind.
The settlements are encouraging attorneys to pursue
additional cases, even as they shed light on the procedure's risks. Five
recent lawsuits generated judgments in the million-dollar range, and at
least 200 other cases are in the pipeline, according to Washington, D.C.,
attorney Aaron M. Levine, chairman of the American Trial Lawyers Assn.'s
Lasik litigation group.
A Buffalo, N.Y., man, for instance, won a
$1.2-million verdict against the doctor and center where he had Lasik
surgery after his eye was lacerated so badly that he is now virtually
blind without corrective lenses. And a Kentucky jury awarded a 38-year-old
woman a record $1.7 million after four laser surgeries left her legally
blind in her left eye.
Lasik, now the most common elective surgery
in the United States, is a $2.4-billion-a-year industry, according to
Market Scope, a St. Louis-based newsletter that tracks the eye surgery
business. More than 4.5 million Americans have had their vision corrected
with lasers since 1996.
Several factors have fueled the upswing in
the number of lawsuits. First, there's always a time lag between when a
procedure becomes popular and when problems emerge. Lasik, for example,
didn't become widely available until the late '90s. Lawyers were reluctant
to take the cases because they weren't knowledgeable about the surgery and
because it's difficult to prove damages when there is no objective test to
verify a patient's complaints. "How do you prove your vision's worse or
you're getting spots in your eyes?" says Paul J. Martinek, editor of
Lawyers Weekly USA in Boston.
It also takes time for these claims
to wend their way through the legal system. But the recent judgments have
showed that these cases are winnable, and lawyers have come up to speed on
the potential complications, which has paved the way for more lawsuits.
"There's now a definite momentum," says Levine, who adds that he receives
at least one call a week from an unhappy Lasik patient.
But the
lawsuits come at a time when the complication rate is actually going down,
doctors and industry observers say. The tools used to perform Lasik have
been improved, doctors have become more experienced, and they're better at
identifying which patients don't do well. People with thin corneal tissue,
dry eyes, misshapen eyeballs (astigmatism) or pupils that are large when
dilated, for example, are not good Lasik candidates.
"We've learned
so much in the five years we've been doing this," says Dr. Roy S.
Rubinfeld, an ophthalmologist in Chevy Chase, Md. Still, he estimates that
about one-quarter of his practice consists of patients with Lasik
complications.
Anywhere from 5% to 15% of Lasik patients need a
second surgery to get their vision closer to 20/20, and up to 5% of
patients find that their best corrected vision--with glasses or contact
lenses--is actually worse than before the surgery, according to the Food
and Drug Administration.
Serious complications, which include
chronically dry eyes, loss of night vision, seeing double images or halos,
fluctuating vision, severe headaches, an inability to distinguish objects
in dim light and sensitivity to intense glare, range from 0.5% to 1.5%.
With more than a million people having this done each year, that
translates to 5,000 to 15,000 people annually whose vision is seriously
impaired by an elective procedure.
"The number of people with
long-standing complications could populate a small city," says Ron Link, a
former firefighter whose eyes were damaged by laser surgery and who now
operates a Web site (www.surgicaleyes.org) for people with Lasik
complications. "These people often have to radically alter their
lifestyles. Anything a person in civilized society takes for granted, like
going to the movies, candlelight dinners, even just driving to the grocery
store, can be impossible to do."
Lasik, which is a two-step
procedure, takes about 10 minutes to perform and can be done in a doctor's
office under local anesthesia. First, a thin flap on the outer layer of
the cornea is peeled back. Then a laser is used to make a neat incision in
the cornea.
Doctors have long known that cutting the cornea changes
its shape. And the shape of the cornea determines where light hits the
retina, the light-sensing cells in the back of the eye that control how
clearly the eye sees.
Generally, mistakes fall into three groups:
errors in programming the laser, which can result in overcorrection or
astigmatism; performing surgery on poor candidates; and failure or delay
in diagnosing postoperative complications. "Almost any error you can
imagine someone somewhere has made," says Dr. Robert K. Maloney, an eye
surgeon and director of the Maloney-Seibel Vision Institute in Los
Angeles.
Unfortunately, says attorney Levine, "people are led to
believe this is no more complicated than getting a tooth pulled."




