LASIK Malpractice lawsuits are on the rise.  The following, courtesy of LASIKinfoCenter.Net, is a sampling of successful LASIK lawsuits.   Below the table, an article about LASIK lawsuits which appeared in Lawyers Weekly USA.  The last paragraph  holds a shocking statistic.

http://latimes.com/features/health/la-011402lasik.story

Successful Litigation by Patients Against Refractive Surgeons                                  

Should You Take a Lasik Case?

by Diana Digges

Lawyer's Weekly USA

3/4/02

Complaints about laser eye surgery are coming thick and fast, but plaintiffs are having trouble finding attorneys to handle them.

So numerous are the queries that Surgical Eyes, a non-profit organization that helps people with complications from LASIK surgery, has expanded its website to educate people about whether or not they may have a legal claim. The website also maintains a list of attorneys around the country who will handle LASIK claims - and they're looking for more.

"I get phone calls or e-mails on a daily basis from people who have been harmed," said Ken Keith, who launched the LASIK part of his law practice as the pro bono director of legal services for Surgical Eyes.

"My belief is that there have to be thousands of plaintiffs looking for a place to nest. Candidly, I have trouble finding attorneys who will take these cases," he said.

So why are lawyers LASIK-shy?

A number of reasons, say attorneys who've handled these claims. Even though there are several hundred suits in the pipeline, there are very few reported cases to give any guidance on awards. Another obstacle is that few doctors are willing to step forward as expert witnesses. Furthermore, lawyers have only the vaguest understanding of the injury itself, and even less of the emerging technologies that can measure those injuries and persuade a jury of damages in visual quality as a result of the surgery.

"The problem is that lawyers don't understand that even if people score 20/20 on a visual acuity test, that says nothing about the numerous subjective problems they experience, like night vision, haloes, star bursts, ghosting," said Keith.

But new technologies that measure abnormalities in vision that otherwise go unregistered promise to change the landscape in Lasik litigation. They will allow attorneys to present concrete measurements of the visual disturbances that plague their clients. (See accompanying story)

"They're going to be able to allow us to give an objective representation of subjective complaints of the plaintiff," said Keith. "It will be wonderful - but they're all still in their infancy."

Pre-op Screening

Such technologies might make it easier for plaintiffs to sell their cases to an attorney - and eventually to a jury - but in the meantime, how should an attorney evaluate a possible case?

Half, or more, of the errors in LASIK still occur as a result of sloppy evaluation of candidates, according to attorneys in the field. Irregular astigmatism, keratoconus (distortion of the cornea), glaucoma, cataracts and diabetic retinopathy are all conditions that should send up a red flag during the evaluation.

But poor candidates for the surgery also could include people who have high myopia, large pupils or thin corneas.

The threshold for successful treatment of myopia is usually less than eight diopters, according to a January statement by the American Association of Ophthalmologists. But lawyers report cases of patients requiring 10 diopter correction or more being cleared for the surgery.

As for pupil size, the ophthalmologist should check that it is measured in different kinds of light. If the "ablation zone" - area of cutting with the laser - is smaller than the nighttime pupil size, the effect is frayed edges and loss of nighttime vision.

Having large pupils in and of itself may not be an absolute contraindication, but such candidates are more likely to have problems.

"That raises the legal question of whether that particular issue has been explained to the patient," said Barry Knopf, a New Jersey attorney who is handling several claims.

Since the principle of LASIK surgery is to flatten the cornea enough to correct distortions, thin corneas can also create a degree of risk.

"If you have 550 microns and take away 200, you've got 350 left, which is fine. The magic threshold appears to be 250; you don't want to leave somebody with less than that," said Keith.

Equipment And Informed Consent

The problem of ophthalmologists using laser machines not approved by the FDA seems to be a thing of the past, but off-label use, without the patient's knowledge or consent, is widespread.

Since the machines are bulky and expensive, most surgeons have only a few of the more than two dozen lasers approved by the FDA for LASIK or other refractive surgeries. Each of the machines is approved for correction of vision within very specific parameters. Not all surgeons stay within the parameters designated for the particular machine.

"If the patient goes to a surgeon with a laser that has not been approved to handle someone's prescription, that surgeon should not be promising a particular outcome. Instead, the surgeon goes ahead and blasts and hopes - that's off-label use. It's not illegal, but it is malpractice, if he fails to make it part of the informed consent to the patient," said Keith.

While the FDA concerns itself just with labeling, its website is a gold mine of information on the various machines used. Surgical Eyes founder Ron Link advises attorneys to check the data that laser manufacturers must submit to the FDA as part of the Pre Market Approvals studies.

"Go to www.fda.gov and check the manufacturers' data. You can get the success rates within certain ranges of myopia, as well as the incidence of different types of visual disturbances, depending on how much correction the person requires," said Link.

Although the medical literature details the numerous complications that can result from LASIK, informed consent documents are often still inadequate, or the circumstances under which the patient signed are rushed.

The statute of limitations is another issue plaintiffs' attorneys have to contend with, partly because patients go back for "enhancement" surgery, which they hope will resolve their problems.

Several attorneys have argued that LASIK is a good candidate for the continuous treatment doctrine. Essentially, practitioners keep the patients coming into the office, telling them that the symptoms they are suffering from are temporary. Plaintiffs' lawyers argue that the statute of limitations should not begin running until the doctor stops stringing the patient along.

"I think Iowa will adopt the continuous treatment rule if presented with an appropriate case - and I think I've got one," said John Holmes, an attorney in Waterloo, Iowa, who has handled several refractive surgery claims.

His client had complications resulting from surgery in 1997. For 18 months the surgeons strung him along with promises that an enhancement could always take care of the problems, said Holmes. Then, in November 1998, they said an enhancement was impossible. When the man sued in 2000, the defendant filed for summary judgment on the grounds that the claim was old. Holmes successfully argued that the statute of limitations didn't begin to run until November 1998.

"I see a lot of surgeons doing a lot of handholding to get people beyond that statute of limitations," agreed Keith. "Get the doctor's records and search for some indication of continuous treatment. Try to see if there's a point where the free care stopped."

Evaluating Potential Clients

Screening clients is particularly tough in LASIK litigation. Since there is only a handful of reported cases, attorneys more than ever have to put themselves in the place of a juror. How would this plaintiff stack up? Is he or she credible? Do their self-reported symptoms sound convincing?

As "aberrometers" - instruments to measure optical aberrations - become more developed, objective data will be available to corroborate self-reported injuries. In the meantime, credibility of the plaintiff is more important than ever. Keith and his partner spend two hours on the initial intake to get a sense of who the plaintiff is and how he or she would present to a jury.

"This isn't a broken leg - I can't pull up a similar injury in a jury search, there are so few reported awards, so I have to spend more time sizing up the client," he said.

Several attorneys warned against the "professional victim" who wants to jump on a bandwagon of mounting lawsuits. "That's pretty easy to find out when you sit down to talk to somebody for an hour and find out that none of the consequences of their lives are their responsibility," said Knopf.

Nor do you want a person who's been involved in multiple lawsuits. And you don't want to be the fifth or sixth lawyer in line, he cautioned.

"Their anger at previous lawyers is as great as anger at their doctor," said Knopf. "You also want to be very careful about people who want to make a killing, who hope to retire. And, finally, avoid the person who's self-righteous, where the only thing they're concerned about is getting the license of the physician pulled."

Key in evaluating a potential plaintiff, of course, is the impact of the disability on the person's life.

"How old are they, what do they do for a living, and how does this affect their life? Is the client a truck driver who has problems because he can't see at night, or is he a retired algebra instructor who doesn't ever want to look at a blackboard again?" said Holmes.

Attorneys who are currently handling cases have clients whose experiences of LASIK complications are as individual as they are. But all of them are functionally impaired, whether they are artists who can no longer see clearly enough to do calligraphy or delivery drivers who are lost on the highway when dusk falls.

"By the time they get to me, most of these people cannot drive at night at all. They can't go to movies because the change in the light on the screen causes severe discomfort and pain," said Richard Robinson, a Buffalo attorney who won the first substantial LASIK verdict. "They can't stand snow because of the glare. They can't stand the heat in offices and homes because they have dry eyes. It's extremely distressful."

Since the cases are costly to prepare, lawyers caution carefully investigating the impact of the disability.

"I don't want to get involved in a case unless there's been a real functional disability to the client. A firefighter comes in and says he can't fight fires, can't go out at night, that's someone who's suffering severe, functional disability," said Knopf. "On the other hand, if someone says they see haloes when they drive, but not all the time, that person obviously has complications, but I wouldn't want to get involved. Frankly, it's a matter of economics. These cases are very expensive."

Attorneys maintain that experts cost them between $500 and $1,000 an hour - if you can get them to testify.

"There's a white wall of silence that I have not encountered in too many other med-mal areas," said Keith.

Aggravating the "professional solidarity" syndrome is the fact that since LASIK is a young field, all the doctors are in the same general age group and all are current practitioners. They're all toiling in the same trenches, and "there are no retired surgeons to rat on the younger ones," as one attorney put it.

But there are cracks in their ranks. The statement issued in January by the American Association of Ophthalmologists acknowledges that LASIK is not right for everyone. And even within the refractive eye surgery industry itself, ophthalmologists are admitting there are problems.

According to Jeffery Machat, a co-founder of TLC Laser Eye Center, the industry's leading LASIK provider, "at least 5 percent of patients have qualitative visual problems, even if they can see 20/20, and 1 percent will have more significant complications that affect their visual acuity as well as visual quality."

So numerous are these people that Machat's laser center is now dedicating 50 percent of its time and efforts to repairing the damage wrought by his colleagues.

More than four million people have had some form of refractive eye surgery since 1996, most of them quite happily. But if Machat's figures are right, people with LASIK complications could number as high as 200,000. That's a lot of potential claims.

Questions or comments can be directed to the writer at: ddigges@lawyersweekly.com