January 01, 2004

TLC Forces New Patients to Waive Legal Remedies

Strategies to Limit LASIK Liability

Rich Daly 
EyeWorld

The latest legal defense against LASIK lawsuits would move cases out of the courtroom and take sky-is-the-limit jury awards off the table.

TLC Vision Corp., a major laser vision correction business in North America, has asked those that perform LASIK procedures at its facilities to include mandatory arbitration language as part of their patient informed consent agreements.

“I think it’s pretty innovative,” said William F. Sutton, a Philadelphia ophthalmology defense attorney, about mandatory arbitration. “And there’s essentially no risk to the practitioner in attempting that remedy because if it fails you’re no worse off than if you had not tried.”

LASIK practitioners that have begun to incorporate the language into their patient agreements said they hope arbitration, also known as alternative dispute resolution processes, will reduce the threat of lawsuits and accompanying increases in malpractice insurance. But they wonder about whether it will be thrown out by the courts.

TLC representatives did not return calls for comment.

The attorneys contacted for this article said they were unaware of any court challenges to LASIK arbitration agreements. But at least one said their survivability in the face of court challenges will likely vary along with the laws of each state.

“It’s a natural response on the part of the physician to try to create some control or influence in an area where they now have none,” Sutton said.

Sutton said the outcome of many LASIK lawsuits depend heavily on what court hears the case and the individual outlook of the member of a particular jury. But with arbitration, at least the doctors and any businesses involved know which organization will decide the arbitration and what guidelines they will follow.

The TLC agreement specifies that the National Arbitration Forum will administer all of its proceedings. The forum’s arbitrators — former judges, attorneys, and law professors — follow a code of procedure to provide “any relief available in a judicial forum,” according the National Arbitration Forum’s Web site.

Some legal authorities compared ophthalmology’s move toward mandatory arbitration with a similar move by orthopedic surgeons more than a decade ago. The courts generally allowed orthopedic consent contracts featuring mandatory arbitration agreements to stand and did not overturn their rulings, said legal experts.

The move toward arbitration, said attorneys, was likely spurred by increasingly high-profile lawsuits. And although the number of lawsuits does not appear to be increasing sharply, the awards continue to jump.

In May 2002, an Arizona jury awarded a former airline pilot a record $4 million for visual impairment following laser surgery. That more than doubled the previous highest award made in November 2002 of $1.7 million to a 38-year-old Kentucky woman.

Most lawsuits have revolved around whether patients were provided adequate informed consent. But legal defenses for LASIK physicians have had a hard time finding a definitive way to provide information to patients that will stand up under jury scrutiny, according to Mark E. Kropiewnicki, J.D., L.L.M. The result has been an ongoing search for a more solid legal defense for doctors.

But it remains unclear whether binding arbitration, even if allowed to proceed by state courts, will protect doctors from bankruptcy-inducing jury verdicts.

Supporters of arbitration and other forms of alternative dispute resolution saidy its advantages include inexpensive resolution of minor claims, early settlements, the elimination of capricious jury verdicts, and a reduction of legal problems for doctors. They said it also can result in enormous savings in attorneys’ fees.

Some orthopedic surgeons that use binding arbitration agreements report huge drops in insurance premiums.

Others that follow arbitration say it can result in more decisions against doctors, although the awards are usually much less than juries generally grant. Another question is whether patients will balk at signing away their right to sue in court for damages.

Louis E. Probst, M.D., regional medical director, TLC Vision, has used the mandatory arbitration form since June at the TLC center at which he performs LASIK. So far, only one patient has refused to sign because of the arbitration language, after which he decided not to perform her procedure.

Probst does not require that the arbitration form be signed before proceeding with surgery but when shown the language, the one patient “was on the phone right away talking to her lawyer, very nervous and just generally not ready to have to the procedure.”

The legal status of the arbitration agreements may not be known for some time but practitioners said they hope arbitration will stand up to legal scrutiny. And at least one doctor said if mandatory arbitration agreements end up providing more legal cover for LASIK procedures, he would consider adding them to consent forms for his cataract patients.

www.eyeworld.org/jan04/0104p54.html

Posted by Admin at January 1, 2004 11:14 PM