LASIK Malpractice Lawsuits
Has your surgeon been sued?...
If you're considering LASIK, you might want to find out if the surgeon has been sued for medical malpractice. Some counties have online databases of civil court cases. If the surgeon practices in a county that does not have online records, a trip to the county courthouse may be the only way to determine if there are current or past lawsuits against the surgeon. You should also check with your state medical board for disciplinary action against the surgeon. Unfortunately, even if the surgeon appears to have a clean record, there's no guarantee that you'll have a good outcome.
Jury returns $440,000 verdict against 20/20 Institute - 5/15/2013
From the press release: On Thursday, May 10, 2013, a jury in Denver, Colorado, returned a verdict of $440,000 against 20/20 Institute, LLC (“20/20 Institute”) for LASIK surgery negligence. On May 8, 2009, Plaintiff Scott Czarniak had surgery at 20/20 Institute where its laser technician, Jacquelyn Tallant, entered the wrong surgical treatment plan into the laser. The LASIK surgeon, Matthew K. Chang, M.D., failed to notice the technician’s mistake. Even after corrective surgery, the patient was left with a permanent partial visual disability due to problems with his quality of vision, including blur, glare, halos, diminished night vision, and loss of contrast sensitivity.
$4.5M judgment awarded against LASIK surgeon - 9/2/2011
From the press release: On August 12, 2011, a judgment in the amount of $4,520,299.58 was entered against LASIK surgeon, Kevin Niksarli, M.D., and his professional corporation, Newsight Laser Center, PLLC.
The Statute of Limitations is the Doctor's Friend, Not Yours - krounerlaw.com 6/21/2011
Reprinted with permission
The statute of limitations is the period by when you are required to start a lawsuit. The statute of limitations varies depending on the type of claim, and even for the same claim, can vary from state to state.
In New York, the statute of limitations for medical malpractice is two and one-half years from the date of surgery. It may be extended for continuous treatment by the same doctor, for the same condition. By contrast, in New Jersey the statute of limitations for medical negligence is two years, but may be extended until the time when the patient discovers his or her injury. The legal definition of "continuous treatment" or "discovery" can be complicated, even to lawyers, and requires careful discussion between you and your attorney.
Too often, I speak to patients with LASIK surgery complications or bad outcomes after their statute of limitations expire. Many could prove negligence or mistakes by their eye doctors. However, their claims, and ability to recover fair compensation for their visual problems, are barred as untimely.
I ask, "Why did you wait so long to call a lawyer?" The answer I get is because the doctor said they would get better with time. Sometimes that may be true. But should the patient wait two years, or longer, on the hope of getting better?
In South Carolina a lawsuit against TLC alleges that its eye surgeons knew patients had ectasia, or other related LASIK malpractice injuries, and did not tell the patients. Instead, the lawsuit alleges that the doctors led the patients along with false hopes and promises of improvements for the purpose of making sure that the patients' statute of limitations expired.
Certainly not all doctors are that conniving. However, your doctor knows the statute of limitations. So should you. If six months after your surgery you are not getting better, call a medical malpractice attorney in your community to learn the statute of limitations. Making the call should not cost you anything. Making the call will not obligate you to do anything. It's bad enough to be the victim of a doctor's negligence. It is even worse to be without any legal remedy. If you know your statute of limitations, then you can make an informed decision whether or not you want to take action. Your rights to be reimbursed for lost income, medical expenses or your pain and suffering should not evaporate without you at least knowing.
If you believe that you or a loved one has been injured as a result of eye surgery negligence, contact the LAW OFFICE OF TODD J. KROUNER for a free initial consultation. Link to source
Michael Duplessie, M.D. sued for LASIK malpractice - 5/13/2011
From the press release: In March 2007, Dr. Duplessie performed LASIK eye surgery on Mr. D’Angelo. The statement of claim alleges that when the initial surgery failed to improve Mr. D’Angelo’s vision, Dr. Duplessie performed a second surgery, or so-called “enhancement,” in June 2007, on Mr. D’Angelo’s right eye, without having performed appropriate pre-operative testing. When the second surgery did not improve Mr. D’Angelo’s vision, Dr. Duplessie performed a third surgery on Mr. D’Angelo’s right eye, in February 2009, again without having performed appropriate pre-operative testing. When Dr. Duplessie’s third surgery failed, he performed a fourth surgery on both of Mr. D’Angelo’s eyes, on August 7, 2009. After four failed surgeries, Dr. Duplessie recommended a fifth surgery for Mr. D’Angelo. At that point, Mr. D’Angelo sought a second opinion, whereupon he learned that he had the cornea disease “ectasia,” and was not a suitable candidate for LASIK surgery.
20/20 Institute and Matthew K. Chang, M.D. sued for LASIK malpractice - 12/22/2010
From the press release: The complaint alleges, among other things, that due to the blunder of Dr. Chang, or a LASIK technician employed by the 20/20 Institute, the wrong numbers were entered into the surgical (or excimer) laser for Scott Czarniak's left eye. As a result, Scott Czarniak developed severe visual disabilities, which cost him his job as a commercial banker. As a result of Scott Czarniak's unemployment, he also lost his home in Avon, Colorado, had to relocate his family and required corrective surgery in an effort to restore his vision.
Mark Lobanoff, M.D. and North Suburban Eye Specialists sued for LASIK malpractice - 12/22/2010
From the press release: As a result of the first two surgeries, Ms. Linegar developed haze and a scar in her left cornea, which left her functionally blind in that eye. Not to be deterred, Dr. Lobanoff recommended more surgery and on November 20, 2009, performed a third PRK surgery on Ms. Linegar's left eye. Due to the repeated, unwarranted and excessive treatments, Ms. Linegar must now undergo a corneal transplant in order to maintain any hope of restoring her vision.
LASIK Class-Action Lawsuit Filed Against TLC LASIK Centers - WYFF News 4, March 18, 2010
$5.6 Million LASIK Medical Malpractice Verdict - Law Office of Todd J. Krouner 6/11/2009
From the press release: On June 10, 2009, a jury in New York City returned a verdict of nearly $5.6 million against Kevin Niksarli, M.D., for LASIK malpractice. The verdict consisted of an award of $2,360,000 for the patient’s loss of income; $3,100,000 for the patient’s pain and suffering, including loss of life’s enjoyment; and $120,000 for the patient’s wife’s claim for loss of her husband’s services and consortium. This is the second largest verdict ever for LASIK malpractice.
Wrong surgery not a violation of standard of care, says LASIK "expert"
From the website of Burns, Cunningham & Mackey: "We represent a lady who had Lasik surgery done on both of her eyes. The surgeon performed the wrong procedure on both of her eyes. This has been a nightmare for her with multiple follow up procedures and starbursts, halos, double vision and night vision problems. The defense expert, Dr. Woolfson from Atlanta, testified that doing the wrong procedure on both of her eyes was not a violation of the standard of care!"
Editors note: Read testimony of LASIK surgeon Jonathan M. Woolfson, M.D. regarding standard of care on pages 83 - 86. When asked about his own procedure for reporting LASIK adverse events to the FDA, Dr. Woolfson gives a surprising response (page 74 - 76).
Need an Attorney?
If you experienced complications from LASIK and are considering suing your surgeon, you'll need an attorney. Before an attorney will take your case you will need evidence that malpractice occurred. You'll also need an expert witness, typically another LASIK surgeon, willing to testify on your behalf. Malpractice is not always black and white. Just the fact that you experienced complications does not prove malpractice. You must show that the doctor failed to obtain informed consent, meaning you weren't properly informed of the risks, or that the surgeon fell below the standard of care. If the surgeon engaged in deceptive advertising, you might have a case based on misleading information. You'll also have to prove that you suffered damages. If your case is strong, you should be able to find an attorney who will take your case on a contingency basis, deferring all costs and fees until you receive an award or settlement. A lawsuit can drag on for years while the defense tries to wear you down. In the end, some malpractice victims find that the legal system is as broken and unjust as the LASIK industry. But some patients do find justice in the courts. Prevailing in a lawsuit will not restore your vision, but hopefully it will cover your medical expenses, help you financially to carry on with your life, and give you a sense of closure.
We have a list of attorneys who are known to have helped LASIK patients, or who have expressed an interest in taking LASIK cases. If you are a plantiff attorney and would like to be added to this list, please email lasikcomplications(at)yahoo(dot)com.
Plantiff Attorney Todd Krouner, Letter to the FDA 4/15/2008
Excerpt from letter: The [LASIK] industry makes it difficult to prove these cases of presumptive malpractice by intimidating colleagues from testifying against one another, and by retaliating against those who do. Titans in the LASIK industry wear their willingness to commit perjury on behalf of their colleagues like a badge of honor. At the same time, I've yet to have a case where a doctor who had an obligation to report a bad result, or unexpected outcome, ever did. One doctor in the metropolitan New York region has reportedly spent over $1 million in advertising his LASIK services, been sued, and paid upwards of 20 patients for his alleged malpractice. Yet, he continues to practice with seeming impunity from his colleagues and licensing authorities.
Press Release 12/16/2008: Protective Order Granted in LASIK Malpractice Action
In a LASIK malpractice case scheduled for trial in New York, in January 2009, the trial judge, the Honorable Joan B. Carey, Justice of the Supreme Court of the State of New York, County of New York, granted plaintiffs' motion for a protective order, shielding the identify of plaintiffs' LASIK malpractice expert. Why would a protective order be necessary? Read the press release to learn about the "culture of LASIK".
Also see court document
LASIK Class Action Lawsuit, Valley Eye Center - November, 2008
The Las Vegas Review-Journal: The lawsuit, which is expected to eventually include dozens of plaintiffs, also targets former surgeon Stella Chou, alleging that she allowed Jain to perform pre-operative tests while knowing he was not a certified laser surgeon. Dr. Vikas Jain, also known as Ken Johnson, lost his medical license in Ohio in 2005, then moved to Nevada and used his wife's medical license to open the Valley Eye Center on Tenaya Way the next year... More than 20 patients suffered "substantial harm," and Jain's peers deemed him to be unqualified to perform refractive surgery, according to a report by the Nevada State Board of Medical Examiners, which is also investigating Valley Eye Center... The lawsuit filed Monday in District Court claims the Jains' center in Las Vegas was "an assembly line" where surgery was done in a "cattle call environment."
Update 3/23/2009: Valley Eye files bankruptcy leaving patients who've filed civil lawsuits against them in limbo
Class Action Lawsuit Filed for Illegal Use of Nidek Lasers for LASIK - October, 2008
A class action lawsuit filed in the U.S. District Court in Southern California alleges a laser manufacturer, Nidek, and numerous defendant physicians engaged in a nationwide scheme and conspiracy to alter the laser software and hardware to enable it to perform non-FDA approved farsighted treatments, subjecting thousands of unsuspecting patients to substantial risk of serious injury.
Attorney David Mazie Goes Eyeball to Eyeball with Lasik Surgeon - Lawyers and Settlements 9/9/2008
From the article: Dr. Joesph Dello Russo makes no admission of guilt in the $2.1 million settlement and it was done only for expediency’s sake, according to his counsel. However, it stands as the largest Lasik surgery settlement in the history of New Jersey and perhaps in the US. Mazie has settled several other Lasik surgery malpractice lawsuits against Dr. Dello Russo and has a couple still pending.
Alcon Sued for Product Liability Over Defective LADAR6000 Laser Used in LASIK Surgeries - August, 2008
The LASIK industry generally, and defendants in particular, profess that the surgical laser systems used to perform the surgery are safe. However, on February 21, 2007, the United States Food and Drug Administration recalled defendants' excimer surgical laser system, known as the LADAR6000 Excimer Laser (the LADAR6000) due to reports that the LADAR6000's CustomCornea Myopia and CustomCornea Myopia with Astigmatism algorithm procedures were causing central islands in patients.
Pupil Size Lawsuits
There have been several LASIK medical malpractice lawsuits based on pupil size. Unfortunately, these cases are challenging for the plantiff due to phony "expert" witnesses -- hired guns for the defense who are paid to give bogus testimony about pupil size. A true "expert" knows that pupil size is a critical factor in quality of vision after LASIK. When a pupil size case makes it to trial, and a jury sees all the evidence, these cases can be won. Here are two pupil size cases that caught the attention of the LASIK industry:
White Wall of Silence
In July, 1999, as a rising tide of litigation seemed to threaten the LASIK industry, Dr. Marguerite B. McDonald, then-Chief Medical Editor of EyeWorld, called for a white wall of silence:
"We are only starting to ride the enormous growth curve of LASIK in this country. There will be more than enough surgeries for everyone to benefit if we keep our heads by sharing information openly and honestly and by resisting the temptation to criticize the work of our colleagues when we are offering a second opinion to a patient with a suboptimal result. Who was it who said, "When the tide comes in, all the boats in the harbor go up?"
LASIK patients with complications are routinely told to "give it time" while the clock ticks down on the statute of limitations for filing a medical malpractice lawsuit. LASIK surgeons encourage their peers not to help victims of LASIK malpractice.
Louis E. Probst, MD, when asked how to proceed with a LASIK patient who developed a severe, vision-threatening complication: "The most important step in this patient's care is to "kill him with kindness." The statute of limitations for medical liability may not have expired in some states.".
Cataract & Refractive Surgery Today, September 2007
Eric D. Donnenfeld, MD: "When there are large gray areas or your views
are discrepant with the norm, please keep your opinion to yourself and
outside of a court of law".
Cataract & Refractive Surgery Today, January 2006
Malpractice lawsuits related to refractive surgery on the rise: OSN SuperSite 1/19/2005
From the article: "With a large increase in the volume of refractive surgical procedures in recent years, the number of malpractice lawsuits related to refractive surgery is also rising, said Neal A. Sher, MD, FACS. “We’re all able to be sued by any patient at any time. The situation is murkier than ever,” Dr. Sher said to attendees here at Hawaii 2005, The Royal Hawaiian Eye Meeting. Reasons for the rise in lawsuits include the large volume of cases, high patient expectations, inadequate training of some surgeons and unprofessional advertising, Dr. Sher said. Other causes can include offhand comments made to patients by other physicians or staff, and the increasing sophistication of plaintiff’s lawyers concerning refractive surgery, he said. Dr. Sher advised surgeons to adhere to guidelines set forth by the Federal Trade Commission, the American Society of Cataract and Refractive Surgery and the American Academy of Ophthalmology regarding appropriate advertising."
Jack M. Dodick, MD: The most urgent issue Opthalmologists face Today is Legal (Nov/Dec 2004)
"What are the most urgent issues that ophthalmologists currently face? Unfortunately, they are not medically related but legally and financially driven. Serious problems with regard to malpractice litigation, decreasing reimbursement, and encroachment by optometrists are challenging ophthalmologists. For example, decreasing reimbursements have resulted in many physicians’ opting out of therapeutic procedures such as cataract surgery. They feel that their livelihoods depend upon patient-reimbursed elective procedures such as cosmetic or refractive surgery. With improvements in surgical techniques, patients’ expectations have risen, creating a smaller permissable margin of error for surgeons and increasing malpractice rates. It is sad and telling to see the children of ophthalmologists pursuing careers outside of ophthalmology for these reasons." Source: www.crstoday.com/PDF%20Articles/1104/crst1104_5Q.pdf
From the article: "Laser in-situ keratomileusis vision correction surgery malpractice lawsuits are on the rise, due in part to a growing number of web sites that encourage dissatisfied patients to sue surgeons. LASIK malpractice web sites garnering attention include seattleclassaction.com, lasikdisaster.com, and lasikinfocenter.net."
"To counter the negative perceptions and innacurate information people have been receiving about LASIK, the American Society of Cataract and Refractive Surgery will be launching a public information campaign in June. “We encourage people to get accurate and balanced information about the procedure,” said John Ciccone, ASCRS director of communications."
Lawsuits Mount for LASIK: Los Angeles Times 2/2/2002
Patients unhappy with the results of Lasik surgery are increasingly suing doctors and clinics for compensation, complaining that the procedure actually worsened their vision and, in the most extreme cases, left them legally blind. The settlements are encouraging attorneys to pursue additional cases, even as they shed light on the procedure's risks. Five recent lawsuits generated judgments in the million-dollar range, and at least 200 other cases are in the pipeline, according to Washington, D.C., attorney Aaron M. Levine, chairman of the American Trial Lawyers Assn.'s Lasik litigation group.
An Eye for an Eye: Professor James O'Reilly Speaks Out (Winter 2002)
"My interest in LASIK arose at a Christmas party. I have published 28 textbooks and 135 articles, and the Supreme Court called me the "expert" on FDA approval of medical device products. So when I sat next to an eye surgeon I asked him if he does a lot of LASIKs, and he replied "No, I don't think these are safe but it will be years before we see the effects and know for sure." That was a chilling comment, so I looked back at what FDA had required and was startled that so little experience base is needed before approval. That led me to the American Academy of Ophthalmology statistics person and to the insurance folks, and as I went forward with this little line of curiosity I came to recognize that there will be literally thousands whose injury will have no recourse -- and that they are the future victims of the inactivity today."