Lawsuit

[ron s]

Hello all -- I know that this is not the best topic for this site, but is a lawsuit for my Lasik-induced dry eye reasonable? I do believe a was contraindicated (not a good candidate) for this procedure, due to contact lens intolerance. -- I do have an attorney willing to get my medical records and have an expert review them. Does anyone have any experience with the legal approach? (We all know the damages that this causes to one's life .. I could go on and on.) I am a 43 year old male who had the procedure done almost 2 years ago (statute of limitations fast approaching).

I have tried the many, many approaches (from drops to plugs to restasis to doxy and on and on) -- in the end, nothing is really working.

I am paying emotionally and financially for this condition, and cannot see how this is going to change. I worked with the Lasik center for over a year and we "ran out of options." I have been to two other opthamologists who have basically just repeated the approaches that did not work previously. I will continue to find ways to get this to life-altering nightmare to improve, but I feel I need to know if the Lasik center was legally negligent. (I already know they were from a moral perspective).

Any words of experience that one has had with this "approach" would be highly appreciated!!

[Rebecca Petris]

At the risk of sounding discouraging... I will share a few thoughts based on having watched people go through that sort of thing over the last several years. Obviously this is not legal advice, just layman's observations/opinions.

1) I don't think contact lens intolerance is a contraindication in any formal sense (as opposed to being a really bad idea or a reason to investigate and pre-treat dry eye etc - the latter probably being the common view in refractive circles) - in fact I think the industry pretty much depends on the contact lens intolerant for a significant proportion of 'sales'. And while I'm squarely in the "it's a bad idea" camp personally, I think it unlikely you could get an expert witness to credibly demonstrate from medical literature a strong relationship between contact lens intolerance and severe long-term dry eye after LASIK. - Certainly possible I'm wrong; I read a lot of studies but not all of them.

2) If you pursue this seriously, make sure you work with a lawyer who has done LASIK medical malpractice before. It's got some peculiarities that they would really, really need to be familiar with.

3) Just for perspective... a key factor that can derail a lasik suit before it starts is the cap on damages for pain and suffering in your state. I think most states have a max of $250-350k these days. Figure on ratcheting the potential payout down to a fraction of that for eye pain without legal blindness. Then take that number, multiply by 40%, take a wild guess as to expenses and you have a rough proxy for the lawyer's formula for determining whether it's worth thinking about. - The exception would be if you're in a moderate to high paying job and can document some significant loss of wages.

Bottom line, my personal opinion is that lasik suits without major vision damage (and/or some very blatant form of negligence) are quite difficult to win and also are terribly hard emotionally on patients who are already suffering a lot with pain, depression etc. Not a path for the fainthearted for sure. In most - though by no means all! - cases I've come across the time & money have been better spent on seeking the best possible care in order to get one's life back on track.

At the same time... I very much appreciate the trailblazers in this area who have braved the difficulties in order to hold irresponsible physicians accountable for their negligence or incompetence.

[Guest]

I was debating also whether or not I should attempt a lawsuit as well... but I came to the same conclusions as Rebecca.

Regarding the issue of whether or not my surgeon should have done the surgery in the first place, I suppose there were no official contra-indications to my having the surgery. I think the only issue where I'd have a leg to stand on is lack of informed consent.

Regarding whether or not potential proceeds from a successful lawsuit (and who knows if it could succeed) would make it worthwhile to pursue: we also have a limit of 300k damages for becoming completely paralyzed... so dry eye would not be worth much... maybe zero once all legal fees are paid... not worth the effort here...

I'd love to see sweeping changes in the way patients are told the risks of Lasik... seeing the consent form 15 min prior to surgery with no opportunity for a good discussion about it with the surgeon just doesn't cut it in my books...

[RobLIC]

$0.02 here? I second Rebecca, after many years of discussing this in legal circles. Even sympathetic attorneys are going to want to know at the outset "How do you see?" When your response is "Well, fine, but it just hurts to keep my eyes open," you are up against a wall. Because no one really wants to go before a jury to say "My client has very dry eyes." There's that public perception that it's a manageable problem, even when it's not.

Find ways to channel your anger - and let us all know what they are, please! And use your time and money to pursue treatments, even if they involve travel.

[Guest]

... no one really wants to go before a jury to say "My client has very dry eyes." There's that public perception that it's a manageable problem, even when it's not.

That is SO true! I think the only kind of patient who would have a hope of sucess would be someone with badly messed up vision...

Regarding trying to let go of any anger u feel, it's easier said than done... but necessary, I think, in order to find a way to be fully happy again...

Anyhow, good luck to you, whatever you end up deciding to do! Keep us posted! And heck, if u live somewhere where there is no cap on damages, maybe it WOULD be worth your time to pursue a lawsuit... you'd just have to master the art of cool detachment from the whole thing... don't want to let any anger eat you up, know what I mean?

Good luck!

[ron s]

Thanks for your responses!!

Thanks to all of you for your QUICK and detailed responses! It is truly appreciated.

I guess the overall jist of what you have all had to say is pretty much what I expected. From all that I have read, the damage has to be something the average person (potential juror) can actually empathize with - I mean, people can at least imagine seeing double, being partially blind, etc. But as we all know, what the average person thinks about dry eye is "oh yeah, my eyes have been dry ... you just put some drops in and everything is fine."

I can say, though, from my DES, especially when in certain environments (A/C and ESPECIALLY flourescent light) my vision is not good at all -- moreover, I am very sensitve (photophobic) to light (esp. flourescent). I understand that this is likely due to the dryness (at least that is what I have read), but man, it renders me virtually unable to function. Ethically (maybe not legally?) this is PAIN AND SUFFERING! (I know, I 'm preaching to the choir). --- At my eye exams, my eyes show only minor clinical signs of dryness (but at my last exam 2 weeks ago, my doc said my eyelids were somewhat inflamed and started to treat me from a MGD approach (doxy to optical antibiotic (Azasite) + eyelid scrubs.) So far, not really much (if any) difference.

From the legal end, I had 2 firms who never responded to my online inquiries, a consultation with a lawyer (whom I had met through teaching his children) who decided that it was not a strong case, and finally a lawyer who I know rather well who has decided to take it on (he's says b/c he thinks it may have merit, but it might have more to do with him just trying to help out a close acquintance). I guess for me, I just want the outside evaluation that there was not legal negligence (opthamologists I have seen are always cryptic about whether they believe it was a poor choice to have lasik - I guess in reality, they have no true way of knowing after the fact).

So, again, thanks for your thoughts and if there is any other insights you'd like to offer, I am ready to listen.

thanks again - ron s

[mike838]

I think many of us can feel your pain and understand what your going through. My dry eyes were not associated with lasik but I will throw my .02 in. I have seen many in the same shoes as me with at one point the dry eys have been so bad they cant work, cant go to school, cant function, etc. The funny part is and its not funny but when I first had my dry eye hit I was imobilised! I missed 4-5 days a week from a very good job. I ended up losing my job. I literally could not drive because of the pain and had lost my social ring as the discomfort of my eyes ran my life. I actually went to see if there was any help I could get through the state and they said dry eye is no big deal go get eye drops!
Its amazing how people think this condition is no big deal. Heck my wife did not get it until we watched a baseball game and big papie was out of a game from dry eyes did my wife say wow its that bad huh?
I guess what I am trying to say is yes lasik def does cause this stipid and painful condition but convincing anyone that you dont need to use "visene" is going to be "impossible" I would give my right arm to have one of these people to walk a day in any of our shoes!
I wish you luck with this case as many lawyers would not touch it. Let us know how you make out.

[Drops]

Talk to this Lawyer, he has experience with LASIK
You'll have to pay around 3,000 dollars to see if the lawsuit will go anywhere. But of course, there is always someone eager to take money!
Todd J. Krouner
Law Office of Todd J. Krouner
93 North Greeley Avenue, Suite 100
Chappaqua, New York 10514
Tel: (914)238-5800

tkrouner@krounerlaw.com <mailto:tkrouner@krounerlaw.com>

[sanna]

I just wanted to say that i hope there is a god lawyer that will and can help you.

(I am aslo a post lasek patient.)

[Lucy]

As an (almost) 10 year veteran of a cruddy Lasik job, I think Rebecca has given excellent advice. If you clear one hurdle, there is always another to overcome. For example, docs all hang together for the most part and will not speak ill of their peers. Getting an expert witness is a totally a major hurdle. Expect to lay out lots of dollars.

I did not sue. Ten years ago, drs didn't even admit Lasik caused dry eyes. Today it is a little different. They probably approach it a little better. I know some drs don't and just want the almighty buck before you leave their clutches.

I gave up my job because of bad vision and had to go on disability. My Lasik doc said I would never be able to collect SSD. He was wrong. I didn't want the emotional hassle of trying a lawsuit. This bothered me to the "quick" and all the records etc. just rubbed my nose in it. I wish you well. Lucy