Chris Duffey What’s the damage: Arthur Ginsburg has devised a test for assessing LASIK-related problems.    News Category: Health From the Week of Wednesday, April 23, 2003   City of Warts Forgetting How to Die Because hospitals treat death as a failure of modern medicine, Felicidad Gomez couldn't die with the dignity she deserved. 7 Days 7 Days Antiwar activists not permitted; Hey, why steal just one?; Emeryville caves, disabled roll on; And the liberators strike again. Letters Letters for the week of April 23-29, 2003 Your snotty vulgarity only makes competition welcome. Your inspired tribute to rugby is a credit to the profession.

Consumers seeking a more candid and detailed assessment of the risks of LASIK might just as reasonably visit EyeSurgeryEducation.com -- a credible- looking Web site provided by the Eye Surgery Education Council. Its link to "LASIK Surgery Screening Guidelines for Patients" seems to provide a scientifically rigorous discussion of who may and may not undergo LASIK. Yet certain risk factors covered by the FDA's guidelines, such as pupil size, go completely unmentioned here.

While the council's site downplays the problems associated with LASIK, privately its backers struggle for solutions. Two weeks ago in San Francisco, members of the American Society of Cataract and Refractive Surgeons, the sponsors of the council, spent four days attending symposia, research presentations, and courses devoted to handling a multitude of post-LASIK "complications" and "nightmares."

The Eye Surgery Education Council launched the ESEC site and guidelines in the spring of 2002, at a time when LASIK sales were lagging. Thus the guidelines would appear to have a dual purpose: to inform consumers but also quell fears and attract new business.

Dr. Doyle Stulting, guidelines coauthor and chairman of the society's Refractive Surgery Clinical Committee, suggested that nonexperts have no business questioning the guidelines. Besides, he said, the news media is prone to overemphasizing the importance of pupil size. "There are many other parameters that are probably more important in determining who will have a good outcome," he said. "If we were to mention everything that has to be done in an exam, we would have to write a hundred-page book." Stulting acknowledged, however, that pupil measurements are always considered at his own office.

Consumers who have considered all the risk factors and still decide to proceed with refractive surgery will want to find a good surgeon. Looking for a doctor certified by a reputable professional organization is one way to make such a choice. Respected medical organizations typically confer these titles to indicate a certain degree of professional mastery.

Take for example Dr. James J. Salz in Los Angeles, who literally wrote the textbook on laser eye surgery. He is a researcher and laser industry consultant, and has been an expert witness for plaintiffs in LASIK malpractice cases. In his own practice, he has a reputation for telling patients they're not good candidates for the surgery even when other surgeons insist that they are. Salz is certified by the American Board of Ophthalmology, a form of accreditation that is not for slouches.

Another organization, the American Board of Eye Surgeons, has a certification process that requires lengthy clinical reviews. Its process is so rigorous that so far the board has certified only five LASIK surgeons in the entire state of California.

Then consider Dr. Glenn Kawesch, an eye surgeon who practices LASIK in Southern California. Kawesch clearly excels at marketing. His slick multimedia Web site features an impressive array of endorsements from a virtual Who's Who of celebrity San Diego. The site's "Meet the Doctor" page proudly displays a logo that reads "CRSQA Certified," implying endorsement by the Council for Refractive Surgery Quality Assurance.

In fact, contrary to this marketing claim, Kawesch is no longer certified by the council. Citing confidentiality concerns, CRSQA officials would not give a reason for the doctor’s decertification. Court records, however, may provide an inkling. Over the last five years, 26 malpractice and fraud lawsuits were filed against Kawesch in the San Diego courts. Patient after patient contended that they were lured into LASIK by Kawesch and his staff, only to find out afterward that they weren't good candidates. One patient, Richard Jacobs, complained of never being told his cataracts could cause trouble. Dean Nathans, meanwhile, blamed the doctor for causing night blindness, poorer vision, and reliance on hard contact lenses. Ernie Vaca said the doctor's staff identified a corneal warping disease called keratoconus but assured him it was okay to proceed with surgery anyway, without mentioning that the FDA explicitly warns against LASIK for people with that condition. The list goes on and on.

On June 4, 2002, the office of California Attorney General Bill Lockyer petitioned for an interim suspension order against Kawesch, charging that he posed an imminent public danger. Medical Board of California spokeswoman Candis Cohen said the petition was denied by an administrative law judge, but the case is not yet closed: An accusation hearing is set for June 30 of this year.

Clearly, some instances call for a healthy dose of consumer skepticism.

Once potential patients have found a surgeon whose credentials look encouraging, they might then wish to check out the doc with the state Medical Board. But searching the board's online database of disciplinary actions and malpractice judgements also can be misleading. A genuinely clean record is only one of several reasons a doctor may appear blemish-free. In California -- as in many states -- information about pending medical investigations is not shared with the public. Hair-raising allegations about a surgeon could be wending their way through the system, but they don't make it to the public database unless they result in a formal accusation initiated by the medical board. Kawesch, despite all his trouble, appears only twice -- once for a fraudulent advertising citation, and once for the pending accusation that goes to hearing in June. The board takes an average of two hundred days to investigate a malpractice complaint, Cohen said. More complicated cases can take up to two years.

Sandy Keller of Torrance began her LASIK nightmare in September 1999. Nearsighted and unhappy with contact lenses, she was encouraged by her optometrist to pursue laser vision correction with a particular eye surgeon. As Keller's court complaint tells it, the blade jammed during the first flap incision, and it was downhill from there. Her tortured odyssey included debris in the eye, wrinkles in the cornea, inflammation, clusters of ingrown cells, and enzymes melting her eye tissue. Life became an endurance marathon of blurred and multiple vision, promises of cure, and gross negligence. By the time her ordeal was over, she had undergone eight laser vision-correction surgeries by three different surgeons. She ultimately learned that her optometrist had a financial interest in the recommended laser center. "I discovered that I was never a good candidate for the surgery due to huge nighttime pupil size, dry eyes for years prior to surgery, and warped corneas from years of ill-fitting contact lenses," she said.

So Keller took her complaints against both parties to court, seeking $350,000. She was pressured to settle for less than $30,000, but refused, arguing she'd rather go to trial. (Not coincidentally, only settlements for more than $30,000 must be reported to the medical board for further investigation.) Through the end of last year, such settlements were never disclosed to the public unless they resulted in separate formal accusations filed by the attorney general's office. But last year the California legislature approved a new law making such settlements public once a doctor accumulates three or four within a ten-year period (the actual number will be based on risk categories not yet determined). The new law will even expose malpractice settlements cloaked by confidentiality agreements. The law isn't retroactive, however, and settlements reached before 2003 won't count toward the threshold.

Keller, a 43-year-old mom and small-business owner, said she ultimately received more than $30,000 from both the original surgeon, Tay Weinman, and her referring optometrist, James Hawley. Determined to help others avoid the same fate, she then filed complaints against both men with the state medical board and the California Board of Optometry respectively. "I'm so disgusted," she said recently. "My case settled in September 2001, and still they haven't come to any conclusion. In the meantime, he is butchering more patients."

Spokeswoman Cohen said the case is still under investigation by the medical board, and that there is no way to project how much longer it will take. Currently a search on Keller's surgeon, Weinman, comes up clean in the board's disciplinary database. The California Board of Optometry presumably is working on the optometrist's case. Trial judgments against a doctor automatically show up in a search -- but only if the medical board is aware of them. Although state law requires doctors or their insurance providers to notify the board about such judgments, surgeons who can convince the board that they were unaware of this requirement are subject to fines no greater than $500 -- about a quarter of the price charged for a typical LASIK procedure. Malpractice insurers and court clerks face no penalties for failing to report the judgements. Cohen said the board has begun an education campaign in the hope of improving this situation.

Digging through courthouse records is unfortunately the only way to know for sure how much malpractice litigation a doctor has attracted. But even lawsuits don't give the full picture, because many unhappy LASIK patients keep their troubles to themselves. Some, of course, just don't like suing. But others worry that they won't be able to find a new doctor to help with their remaining eye trouble after suing a fellow member of the profession.

Finally, California is a tough place to make a legal case about elective surgery gone bad. The state's $250,000 limit on pain and suffering in malpractice judgments provides doctors with scant discouragement to tackle higher-risk cases, according to Jackson Williams, a malpractice researcher with the consumer group Public Citizen. "If you're talking about elective surgery, it's a problem," he said. "To the extent that damages are limited, there's less of an incentive for the doctor to be careful. He's not thinking, 'Boy, I better not screw this up' in California as he would be somewhere else."

This cap has a profound effect on lawyers' decisions to take on medical malpractice cases, said San Francisco attorney Geoffrey Gordon-Creed, one of the lawyers who successfully sued LaserVue Eye Center, a chain with two East Bay locations, in 1999. That suit demonstrated that employees at two of the chain's centers failed to change blades between LASIK procedures, potentially exposing 2,700 patients to infection and communicable disease.

"We will decline to take the case unless, in our view, we can make a claim on the plaintiff's behalf for substantial economic damages," Gordon-Creed said. One of the factors affecting those damages, he noted, is whether "they have a high-paying job that they can no longer perform as a result of the malpractice."

Richard Miller, a native of Lafayette who now lives in Sacramento, learned LASIK economics the hard way. Since his case would cost $100,000 to litigate and he had only suffered an estimated $50,000 in damages, no lawyer would work with him. "Before my surgery, I had 20/20 vision with my glasses," said Miller, who was nearsighted. "After surgery, I have 20/30 vision, which cannot be corrected by any glasses." His permanently fuzzy vision is accompanied by halos and glare, and he suffers headaches, eye strain, and difficulty driving at night. "My doctor has pronounced my surgery a 'success,'" he said. "Had I known this is 'success,' I would never have had LASIK!"

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