LASIK and dry eye

[Natalie06]

Desert Cry

As someone currently involved in a Lasik Lawsuit (your case sounds so similar to mine), I am going to chime in with my cheap and definitely non legal opinion.

It's been a year since your surgery, right? Okay, that "6 months and you will be all better window" has now expired.

First thing: write down everything you remember telling them and what they told you. Everything.

As Rebecca mentioned, start with you surgeon. What do you want him/her to do? Obviousy, a better informed consent document/process but maybe he provides free care? I don't know but after a year, I would not expect much.
You will definitley get nothing if you don't ask.

If you are seriously considering legal action, get your medical records and very carefully review the IC document and the quiz you should have been required to take after viewing the IC Video. Any mention of chronic/severe/permanent dry eye? If not, then look for any reference to conversations regarding DES in your records. Carefully review your medical history document and any mention of your cl lens intolerance or any other eye issues you told them about.

Now, you should file a complaint one way or the other with your surgeon first and then the state medical board and the AAO if necessary. If the IC document and video does address Dry eye, then your legal avenue is going to pretty tough and not many lawyers will touch it and probably no one in your home state. File the complaints with the state and AAO anyway, even if they did address DES in the IC documents and quote what they told you and about the downplaying of your pre-lasik eye issues. It's not a legal outcome but hopefully it will prompt them to conform to more ethical, unbiased informed consent.

And if your state medical board blows you off, let me know and I will send you a copy of my letter from my state board reversing their original decision and their "improved" expectations for the ethical delivery of informed consent for Lasik. Heck, I'd send it to you before you file the complaint. If your state medical board takes some type of action, that's very helpful when talking with an attorney too.

If there was no mention of DES in the IC document/video tape/Quiz and nothing recorded in your records about that conversation, then you may have a case. If they did no testing for dry eye prior despite your symptoms, then it's a stronger potential claim.

In the words of my attorney:"to win an informed consent case, you need to show that you were not informed of a material risk of the surgery and that if you had been informed, you would not have undertaken the surgery." Many states also have the "reasonable" clause meaning that a reasonable person would not have had the surgery, not you specifically.

But again, from a legal perspective, how will this impact you, your job, your life, etc. That's a conversation to have with a lawyer. Is the expense of litigation worth any potential settlement? Malpractice cases are notoriously expensive and attorneys aren't going to spend $10K to recover $5K.

By the way, I met with 4 different attorneys before I found one willing to take the case and a good match for my personality.

I will tell your right up front that I have already spent over 1 1/2 years since my surgery preparing and now (finally) officially engaged in a lawsuit against my surgeon. Typically, the statute of limitations to file a claim is 3 years from the date of your surgery. That can vary by state. The actual case could take 2-3 years if they won't agree to settle. And there is NO guarantee that you will win.

If you can find a treatment for dry eye that works, then is it worth pursuing?
Only you can answer that.

Regardless, filing a complaint with your surgeon/medical authorities is the right thing to do, does make you feel more empowered and less victimized and hopefully helps someone else.

I wish you well and most of all I wish you and all of us find a cure for dry eyes.

And I hate that I have had to learn all this crap.

Natalie

[Rojzen]

"inherently dangerous" question; PIRG?

I have recently been floating the question of legal remedies for LASIK-related injuries to colleagues (apologies that even though I am an attorney, I am unversed in personal injury law), and it is clear to me already that Rebecca, Natalie06, YGB, and others who are finding ways to challenge the LASIK juggernaut are way ahead of the legal profession on this.

It is very exciting that Natalie06 has, after multiple consultations, identified an attorney willing to frame an informed consent-based cause of action, and to move on that. . .

Now I'm wondering whether anyone has yet encountered an attorney who sees some possibility of pursuing the line of inquiry that Rebecca has raised regarding the machinery used in LASIK surgery. One of the attorneys I've consulted, so far, is asking me whether there is any basis, yet, for asserting that LASIK devices are inherently dangerous. . .This is important because collective or class action is much more likely to lie within the realm of product liability law, than within the realm of malpractice. . .and the general principle for launching product liability challenges is that a device/product is so inherently dangerous or ill-designed that it could not help but cause injury (this is a species of "strict liability"). . .Product liability law is promising for LASIK survivors, moreover, not only because it may provide contexts for collective/class actions, but also because, as a result of the class action possibility, this area of litigation is more likely to attract real interest among high-powered attorneys than is traditional malpractice. . .

All this said, litigation is by no means a reliable way for bringing about profession-wide changes and better public policies. . .Good impact litigations can make history, but so can the many non-litigation measures described here by Rebecca . . .My personal sense regarding LASIK abuse is that litigation is going to be necessary before the relevant regulatory and professional ethics changes will take place. . .

One last question: Has anyone contacted the Public Interest Research Group in D.C. on either the informed consent or dangerous device issue? There are some D.C. attorneys who trained at PIRG, moreover, who now operate nonprofit public interest law practices that address consumer and health issues. . .

[Natalie06]

It is very exciting that Natalie06 has, after multiple consultations, identified an attorney willing to frame an informed consent-based cause of action, and to move on that. . .

I didn't hurt that I have a letter from my physician stating that his IC document and video were substandard and that he knew I had pre-lasik eye conditions that elevated my risk. Of course, he is relying on the "reasonable" clause in my state's IC law by stating the he knew but that he thought it would be "reasonable" to proceed with Lasik and "deal" with any problems. It also helped that the MD treating me for severe dry eye is a Lasik surgeon and told me immediatley that I was a "high risk" patient.... I had advantages that I deliberatley and yes, relentlessly pursued with letters and appeals, etc. However, if we can win this case (including a settlement) it sets a precedent in my state that can help others who don't have the advantages that I had.

My attorrney also had personal experience with the whole Lasik and dry eye as he went through a screening for Lasik (brave surgeon to want to perform this procedure on a personal injury attorney!!) and had to "insist" on a schirmer test which proved he had dry eyes.

This is important because collective or class action is much more likely to lie within the realm of product liability law, than within the realm of malpractice. . .and the general principle for launching product liability challenges is that a device/product is so inherently dangerous or ill-designed that it could not help but cause injury (this is a species of "strict liability"). .
All this said, litigation is by no means a reliable way for bringing about profession-wide changes and better public policies. .

I haven't even shared the whole, terrible history of LADARVISION with my attorney yet and you can bet I want to see this practices's records that every recall issed was addressed by them. My surgeon refused to supply me with the model # of their machine when asked...hmmmm

I personally believe that Lasik has the potential to be one of the biggest class action suits ever. And the more individual cases that are litigated makes that much more likely I hope.


One last question: Has anyone contacted the Public Interest Research Group in D.C. on either the informed consent or dangerous device issue? There are some D.C. attorneys who trained at PIRG, moreover, who now operate nonprofit public interest law practices that address consumer and health issues. . .[/QUOTE]


Hmmm, I feel another letter coming on...

[Natalie06]

Just an observation

As I re-read Rebecca's post that started all of this:

If the DEZ has 2150 members and 222 of them (as of May 07) have RS related dry eye, that's 10%...not the statistics usually quoted by the RS community.

I know that's just a simplistic math equation but I did find it interesting.

Oh, the things that occur to me as I am brushing my teeth.

Everyone, have a good day.

Natalie

[Rojzen]

invidious effect of LASIK on nonLASIK DES patients?

While the rate of injury from LASIK is almost surely much higher than the LASIK industry will own up to, I worry that there is yet another untold statistic that is harming millions:

Maybe as a result of the pervasiveness of LASIK, I am finding, even as someone with severe dry eye who never had refractive surgery, that when I see a LASIK-oriented doc, he/she is more likely to trivialize my problem than is a doc who has nothing to do with LASIK. . .This is one reason I love what I'm finding at some optometry practices, these days. . .

Anyway, I am starting to think that this pourever effect of LASIK is tainting the overall quality of care in anterior segment/cornea practices. . Maybe the LASIK docs are unconsciously thinking that the less often they diagnose and actually treat dry eye, in a patient, the larger the pool of potential LASIK takers. . .A very cynical view, yes, but one that is made all the more realistic by the fact that doctors who themselves have never had dry eye don't seem to think it's much of a problem at all (with exceptions, of course)...Couple this widespread
incapacity to grasp the impact of dry eye with denial that LASIK could possibly do serious harm, and we have a community of eye docs utterly unsuited to helping us. . .(with wonderful exceptions, of course!)

I believe that others here have made these points previously. . .but it's just starting to sink in with me since my eye appointment this week with a highly respected corneal disease specialist who clearly is heavily invested in LASIK, and who had zero interest in my account of the astounding benefit I've gotten from Dr. Holly's drops. . .

[eva b]

couldnd't agree more

Rojzen,
you wrote the words that have been going through my head for weeks now!

The last (private) specialist I saw at Moorfields - the top eye hospital in the UK, although very polite and all that seemed to really trivialise my condition, almost implying I was making it worse with obsessing about it.

Having read on this site for some weeks now, and the relationship between Lasik and dry eyes....I realised that this consultant's main bunsiness activity is......you guessed it.....LASIK surgery.

So, add another cynic to the crowd.

I think I need to find another specialist, although where I will do that is another questions altogether...they are even thinner on the ground here in the UK than in the US.

Thank God (and Rebecca) and all of the community on this site to opening our eyes to the reality of what is going on!

[bostonlover]

Adding to what we already know about LASIK docs trivializing the condition. I had received an email from my LASIK doc a couple of weeks ago asking for referrals. I replied to please take me off of his list. He replied to me wanting to know if everything was ok. (Ummm...NO!) I let him know how the last 18+ months have been and his reply was:

"Hi Tera!

Sorry to hear about the dry eye... I know that can be very
frustrating. The kind of LASIK you had is not known for contributing
to long term dry eye so it is probably a continuation of whatever was
causing your dry eye before LASIK. That said, there are a number of
treatments available today. Are you taking anything for it now? Other
things that might help are discontinuing the use of ceiling fans
(especially while you sleep) and using humidifiers at night
(especially during the dry winter months).

While we don't normally see people for routine exams or for dry eye,
we'd be glad to take a look if you'd like. Our charge for that type of
exam is $125. If your vision is fine and it's mainly a dry eye
problem, it might be less expensive to see your regular eye doctor.
Just let us know how we can help."



Very scary indeed!

Tera

[Rebecca Petris]

Almost by definition, these days, cornea docs ARE lasik docs. I wouldn't by any means want to paint them all with the same brush. I know some who give really good, compassionate care to their dry eye patients. But the fact remains that the attention of the cornea community is on what excites them, and it ain't ocular surface disease. (That's why Dr. Latkany's practice really is quite unique.)

All you have to do to get a sense of the extent to which this is true is attend an ophthalmology conference geared towards the cornea community. The courses with the best attendance, the booths that get swamped, and the buzz are all about surgical techniques and equipment.

We dry eye patients are a nuisance, frankly, because we're unsatisfactory in every regard: We take up valuable chair time, we don't generate revenue, and we're reputed to be chronically unhappy.

But, if we're a well-informed, patient, persistent, assertive, squeaky wheel kind of nuisance, we can still get the care we need. And we can seek out the best and share the secret about who the best are.

[Natalie06]

Excuse me but:

"Sorry to hear about the dry eye... I know that can be very
frustrating. The kind of LASIK you had is not known for contributing
to long term dry eye so it is probably a continuation of whatever was
causing your dry eye before LASIK."

Didn't he hear that pre-lasik dry eye is a risk factor all post Lasik chronic dry eye?

Here's a quote followed from a pop up ad for a Lasik center once busted by the FTC for unethical advertising:
"Dry Eyes After LASIK- Some patients may experience dry eyes after LASIK and PRK. Often it is a temporary side effect during the healing process. If a patient is prone to dry eyes, our medical teams may discuss options with the patient, or discuss non-candidacy if the patient's eyes are too dry to have laser vision correction."

Of course, the pop up ad also showed states how nice it would be to wear no glasses or contacts with no mention of risks...I guess this type of advertising is probably too difficult for the FTC to monitor.

Natalie

[Plynn]

This is one reason I love what I'm finding at some optometry practices, these days. . .

I have just read this post about Lasik, and it made me wonder how much this has changed the practice of opthalmology. As a fee for service procedure, it certainly provides an economic incentive.

I have to make a plug here for a great doctor: After reading this post, I must thank heaven every day for the doc who told me not to get Lasik. This was long before any concerns about DES. When I began to need bifocals, I found I was more comfortable doing close up work without my glasses. This doc told me that Lasik would improve my distance vision, but then I would probably need glasses for close up work, and since most of what I do is that, I would be frustrated. I was afraid of Lasik anyway, but merely curious at that point. I am bringing up this point for anyone who is considering Lasik in order to stop wearing glasses to consider both distance and close up vision too.

What is interesting to me is that this doc was semi retired and no longer did any eye surgery, so he had no economic investment in Lasik.... I wonder if the optometrists, who do not do surgery, have a different point of view about Lasik than the opthalmologists? I am not saying all opthalmologists are going to push Lasik, I am sure there are excellent doctors, but in for some, does it influence their opinion?

Plynn