Lasik Injury Causes
There are many things that can happen to cause injury during LASIK
surgery. Sometimes lasik equipment can fail or not function properly
which can lead to serious injury to the lasik patient.
There are two types of equipment used in LASIK procedures.
The first is a microkeratome. This device is applied
to the eye of the patient by use of a vacuum ring. Once it is secured,
an extremely sharp blade cuts a small amount of the cornea at a
specific depth determined by your surgeon.
Lasik Injury as a result of improper microkeratome use or malfunction
include:
a. Failure of the microkeratome to leave a “hinge” on
the corneal flap during the first incision
b. Loss of the corneal flap during the lasik procedure
c. Loss of the corneal flap after the lasik procedure
d. Slipping of the flap causing improper healing after the lasik
procedure
e. Too deep or too shallow cuts in the flap
f. Surface tissue entering the cornea
g. Infection of the cornea
h. Loss of visual acuity - either from scarring or from the flap
interfering with the laser
i. Technical problems with the microkeratome
Some of these Lasik Injuries are easily corrected with prescription
medications, follow-up visits, or possible re-treatment using LASIK.
Other Lasik injury can be more permanent, and they can result in
serious degradation of visual acuity.
The other device used in LASIK is the excimer laser.
Once the flap has been cut, the excimer laser is used to “ablate”,
or disintegrate, the malformed corneal tissue. This lasik equipment
is operated by a computer program that tells the laser exactly
how long the burst of cold, ultraviolet light should last and where
it is directed.
Problems with the laser or “bugs” in the software
controlling it can all result in post-operative complications from
lasik, thus "lasik injury". Equipment fails, even lasik equipment,
this is a fact of life. But who is to blame when that inevitability
occurs? There is considerable difficulty in determining whether
the lasik practitioner’s
improper use of the lasik equipment caused an injury or if the
lasik equipment itself is to blame.
It is usually best, if there is a problem that occurred during
your lasik surgery, causing a lasik injury, merely to fault the
surgeon in your case. Leave the suit against the lasik equipment
maker to the doctor. After all, it is the doctor’s duty to
select the best lasik equipment for the job and to make sure that
it functions properly before each procedure. Not all lasik injuries
are a result of lasik equipment failure.
Sometimes the lasik physician is at fault - for, in the words
of Alexander Pope, “to err is human.” More often than
not, however, the error is not intentional but is just a result
of the surgeon failing to follow the standards of care set forth
by his peers.
Lasik Advertising
The LASIK industry, being highly-competitive,
is forced to advertise far more heavily than other medical industries.
Many offices rely on “co-op” dollars from their equipment
manufacturers to fund their advertising campaign. VisX, a top-five
manufacturer of laser eye surgery equipment, said in an advertisement
run in 1999 that their lasik equipment was so good that further
improvements would not have any implication for the patient but
only help the doctors to operate the equipment with greater ease.
Obviously, that statement is false. So is the statement made by
Jerry Della Femina, co-owner of a famous New York ad agency contracted
by LaserONE, saying that with LASIK, “there is no pain!” This
is in direct violation of American Academy of Ophthalmology advertising
guidelines, and it is considered to be deceptive marketing under
US law.
Anytime a practitioner makes a statement that their office provides
lasik patients with “perfect vision” every time or
that there are no side-effects such as diminished night-vision
from the lasik procedure, they may be practicing deceitful marketing
techniques. If a practitioner mentions the great benefits of their
new lasik equipment without also disclosing the risk and complications
of that equipment, they may be practicing deceitful marketing techniques.
The Federal Trade Commission Act (FTCA) specifically prohibits
false ads likely to induce the purchase of food, drugs, devices
or cosmetics. It defines a false ad as one which is "misleading
in a material respect." Thus any statement that cannot be
substantiated and that is likely to induce purchase may be considered
deceptive in nature.
The three simple FTCA rules are:
a. Tell the truth - Do not mislead consumers implicitly or expressly
about the safety or benefits of your product.
b. Tell all the truth - Do not omit information necessary to ground
your claims.
c. Make sure it is the truth - Have adequate support for any objective
claim, express or implied
The US Food and Drug Administration (FDA)
also has several strict rules in place for marketing of medical
procedures, drugs, and devices. Any time a benefit is claimed in
marketing materials, the potential risks and complications must
also be disclosed. Competitiveness of field in the lasik industry
is very unique among other medical fields.
The lasik industry enjoys high margins, low total cost of entry,
and strong consumer demand. However, these factors are also its
weak points. Since it’s so easy to enter the laser eye surgery
market, lasik centers are opening up at an astounding pace - There
are even lasik clinics in shopping malls! And with the incredible
margins, lasik competition can really get dirty. Doctors will tout
their new “blade-free” lasik system
or their “low-low price” as compelling factors to use
them over their competitors.
Too often, the clout and rivalry will cause lasik practitioners
to use misleading or blatantly false statements in their copy.
Lasik surgeons will say that their patients have never had problems,
or their equipment is unequaled in the industry. But these claims
are not always made maliciously. Sometimes the advertising agency
in charge simply doesn’t know the rules. The aforementioned
Della Femina agency likely did not realize that ophthalmology advertising
guidelines existed.
And these agencies, their affiliates, and their clients will try
to play off their negligence on ignorance. Fortunately for the
consumer, physician ignorance doesn’t work in court, and
a reply of “I
didn’t know. Sorry.” just won’t cut it in front
of a judge. The sad truth is that not all patients who have suffered
diminished vision after LASIK eye surgery are able to sue the lasik
practitioner for medical malpractice.
It is in these cases that the victim must look to the advertising
practices of the surgeon to see if any recovery is possible. This
may be your only means of recovering any financial damages. Even
if you can sue for medical malpractice, it may be wise to also
sue for deceptive marketing to support your claim. A practitioner
with shady marketing practices will appear more negligent in the
malpractice suit.
After every operation, no matter how minor, a doctor should give
you a list of things you should and definitely should not do during
your recovery. LASIK surgery is no different, and it has a rather
lengthy list of things:
What to do after lasik surgery (or what not to do after lasik
surgery)
1. Do not rub or squeeze your eyes for one week.
2. Use eye drops as instructed (these are usually prescribed by
your surgeon).
3. Wear sunglasses.
4. Wear the eye shield for the first three nights after the surgery.
5. No make-up for one week.
6. Avoid smoke-filled rooms and dusty environments for a few days.
7. No water activities for 3-4 weeks including swimming, hot tubs,
etc.
8. No sports for one week.
9. Call the office if you have severe pain that cannot be controlled
with over-the-counter pain medications.
You should adhere to these instructions or risk complications
from your lasik surgery or even acute infection that could cost
you your vision. A surgeon failing to provide the patient with
adequate post-operative instructions may be negligent, and, if
you have experienced an injury or post-operative complication as
a result of this negligence, you may be entitled to recover damages.
Follow-up visits must be scheduled. A doctor cannot adequately
predict your condition after the lasik operation.
Usually, the physician will schedule visits at one day, one week,
one month, three months, six months, and one year after your lasik
procedure. Annual follow-up should be stressed because certain
complications (not necessarily related to negligence) may not show
up until years after the lasik surgery has been performed.
During these visits, the lasik patient will be asked about any
vision problems or pain that may be occurring, whether they notice
any change in their vision, and the eye(s) will be examined to
determine how the healing process is progressing. Some recent cases
against LASIK surgeons have shown that those conducting the follow-up
visit would not accurately communicate with the patient but merely
say encouraging things such as “you’re healing remarkably
well” and “your vision is far more improved than I
had predicted! I wasn’t expecting you to be able to read
that line yet.”
Sometimes these statements may be true, but always ask your lasik
physician for an honest follow-up. Ask about scarring, any problems
you may have had, and whether everything seems normal. As a result
of the popularity of LASIK surgery, often-times the lasik surgeon
does not have time to conduct the follow-up and leaves that duty
to an associate such as a head nurse or surgery assistant. This
isn’t
necessarily a problem as long as a valid chain of command is followed.
If you have a valid concern that is noted by the person conducting
the follow-up it should immediately be brought to the attention
of the lasik surgeon so that your inquiry can be addressed as quickly
as possible. However, this doesn’t always happen. Anytime
there are degrees of separation between doctor and patient information
will tend to get lost or miscommunicated.
If this causes you to develop a problem that could otherwise have
been treated then you may be entitled to recover damages.
Simply put, a lasik practitioner has a duty to give his patients
proper medical care within a reasonable standard set by other lasik
practitioners. When dealing with
medical malpractice cases, this measure is used to determine whether
a surgeon did something not permitted by or failed to do something
required by the standard.
If deviation from this standard is what caused the lasik patients
injury, the lasik practitioner may be liable for the any resulting
damages.
Determining whether or not this standard has been breached is
the job of other medical professionals in the field. This person
will review medical records, claims, and injuries of the patient.
Lasik Injury Links
FDA Site
Lasik Institute
Commitment to Personal Injury Clients
Personal Injury lawyer Jeffrey H. Rasansky has one mission: to
fight for the rights of personal injury victims, people just like
you. Jeff has successfully represented victims of: personal injury,
nursing home abuse, nursing home neglect, nursing home negligence,
medical malpractice, car wrecks and product liability.
Jeff Rasansky is licensed to practice before all state courts in
Texas, the United States District Courts in the Northern and Eastern
Districts of Texas and the Fifth United States Circuit Court of Appeals.
Click here to contact The
Rasansky Law Firm.
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