Complications, Malpractice, Litigation, and the Role of ComplicatedEyes

If you have complications from conventional or wavefront Lasik, All-Laser Lasik, LASEK, PRK, CK, LTK, or any other refractive eye surgery procedure, the idea of suing your doctor for malpractice has undoubtedly crossed your mind.  It is easy to fancy thoughts of inflicting financial pain on your doctor while recovering your costs and receiving a financial remediation for your difficulties.

Our organization is not involved in the issue of medical malpractice or litigation.  We focus exclusively on helping people with complications from conventional or wavefront Lasik, All-Laser Lasik, LASEK, PRK, CK, LTK, or any other refractive eye surgery procedures find a resolution to their problems.  We focus on a cure, not litigation or financial compensation, but we do offer some thoughts that may be helpful.

Malpractice is an issue that is challenging to patient and physician alike.  It can also be very frustrating for the patient suffering from complications because of an important fact: a complication is not necessarily malpractice.  You may think that because you have complications, the doctor is guilty of malpractice.  It is possible, and indeed more common, that your doctor did everything correctly, but you had a bad outcome.  Even if what occurred to you is highly irregular and very disturbing, proving malpractice may be difficult.

Any medical malpractice attorney considering taking your case must determine if there exists what is commonly referred to as the "magic triangle" of malpractice litigation: negligence, causation, and damages. Without all three, there is almost no likelihood of prevailing in court. Without the right balance, a malpractice suit may not be worth the time and effort to pursue.

Starting with negligence, it is important to remember that unfortunately, patients have bad outcomes when the doctor is not negligent. The doctor can do everything correctly, but the dynamics of surgery and every patient's individual response may result in an outcome that is not desired.  If the doctor is not negligent, then malpractice has not occurred. A part of negligence is the informed consent. If the doctor did not provide the patient with a reasonable explanation of what is known that could go wrong, the doctor may be considered negligent - even though the informed consent does not directly relate to what happens in the operating room.

Causation is a big issue too. What actually caused the bad outcome may not be able to be determined to the level necessary to meet the requirements of law. As an example: a microkeratome may malfunction, but if it was manufactured, maintained, and used properly, it may be impossible to identify the cause.  Every person responds differently to surgery.  It is possible that the cause of the problem is unique to you and would not have been predictable with the knowledge and understanding at the time.

Damages is a surprisingly difficult issue. Remember that a malpractice suit is about receiving money - not about changing the way a doctor does something (although that may be a result). What, exactly, is the monetary value of not being able to drive at night? If you are a professional driver or pilot, the value may be very high.  If you work at home and use public transport, the monetary value may be very low. If you don't have a driver's license, the monetary value of the damage is almost zilch. Even if the doctor was negligent and directly caused the problem, if the problem does not cause significant monetary damage (including pain and suffering), then a malpractice suit may be only an exercise in futility.

This is a gross oversimplification of a very complex situation and every individual patient's circumstance is different. But what is true is that patients may have a bad outcome, but not have an actionable claim.  This can be very frustrating for a patient with surgery-related vision problems.

ComplicatedEyes will do what we can to help you through your vision difficulties and, we hope, get them resolved.  Only you can decide if litigation is an appropriate response to your situation.  Only an evaluation by an appropriate legal representative can help you choose the best course of action on this front.  Whatever you decide about litigation, we wish you the very best of luck.

Revised: May 25, 2005