Malpractice Claims/ Do You Have A Case

To sustain a medical malpractice claim in most states, a patient-plaintiff must establish the existence of a doctor-patient relationship between the plaintiff or the plaintiff's decedent and the defendant. In addition, the plaintiff must show that the doctor's performance did not conform to good medical practices, and that this failure to conform caused the injury for which the plaintiff sues. While establishing a doctor-patient relationship may prove possible, because LASIK represents such a new and innovative procedure, establishing that the doctor did not conform to good medical practices and that an injury exists may prove difficult.

As a fairly new procedure, disagreement over the standard of care required for LASIK procedures occurs even among refractive surgeons. While one surgeon may consider a certain patient selection factor an explanation for a certain complication, another, equally qualified surgeon may find no relationship between the factor and the complication. This disagreement may make it difficult to establish that the error for which a doctor is accused was an actual error. If the standard of good medical practices is not firmly rooted, establishing that a doctor violated good medical practices represents a challenging task.

In addition, establishing a violation of good medical practices requires the testimony of an expert witness who knows and can communicate the standards for those medical practices. Effective marketing has contributed to the increase in the number of LASIK procedures surgeons perform. Surgeons who perform LASIK have an interest in maintaining its positive public image. As a result, finding a qualified expert willing to testify about the dangers of LASIK may represent its own challenge.

Establishing an injury may also create a problem in a LASIK malpractice case. The Snellen eye chart, commonly used to measure vision based on the 20/20 standard, only tests the ability of a patient to read pure black letters on a pure white background. The Snellen test cannot measure an individual's ability to see in dim light, or glare, or to distinguish between subtle shades of colors. While tests to measure contrast sensitivity, multiple images and problems with depth perception exist, extra care is required in communicating the results of such tests to a jury of laymen.

Another hurdle in developing a malpractice claim for a LASIK procedure is the informed consent document that most doctors require their patients to sign prior to undergoing the procedure. An informed consent document may describe some of the complications and risks of the procedure and indicate that by signing the document the patient relieves from liability the surgeon, any attending nurses or staff, and the clinic in which the surgeon performed the procedure in case of a complication that results in injury. While an informed consent document does not necessarily bar a patient from raising a claim against a negligent surgeon, the patient should provide his or her lawyer with all the information available about the informed consent document, including a copy of the document, if available, as well as the circumstances under which the patient signed the document (i.e. was the patient given time to thoroughly read the document, did the doctor or other staff member go through the document with the patient and answer questions the patient might have had, etc?). Such information may prove crucial to a lawyer's ability to develop a case in the face of an informed consent document.

Because LASIK surgery is a recent medical development, no long-term outcome statistics exist for the procedure. Complications resulting from LASIK occur in approximately 1.5 to 5 percent of all patients. While doctor error may not account for all LASIK surgery complications it is important to evaluate the specific circumstances to determine if malpractice contributed to an injury. If you have undergone LASIK surgery and believe that you suffer from complications as a result of the procedure, contact us to help you determine your legal options.

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