On March 13th, 2008, the New York Times wrote an article by Abby Ellin titled: “LASIK Surgery: When The Fine Print Applies To You.” Click on the title to read this very informative article in full.
This article prompted a response from Attorney Todd J. Krouner, which was sent to the NY Times on March 12, 2008. Mr. Krouner is a plaintiffs’ litigation attorney with over 20 years of experience and is considered an authority in the field of medical malpractice. In July 2005, he obtained a verdict of $7.25 million which is the largest verdict ever for a case involving LASIK malpractice, Schiffer v. Speaker, et al.
The below is a complete copy of Attorney Todd J. Krouner’s letter to the editor of the NY Times:
March 12, 2008
Editor, New York Times
To the Editor:
I read Abby Ellin’s biographical piece about her own LASIK eye surgery misfortune with keen interest. It was a sad but refreshing counterbalance to the LASIK industry’s infomercials that pass as news in other publications. Ms. Ellin confesses, “I’m not mad at my doctor. I’m mad at myself.” She thinks she succumbed to her vanity. It is a classic victim’s guilt. If she only knew.
Do the math. The application of the surgical laser to the cornea actually takes less than 60 seconds. A corneal or refractive surgeon can schedule ten patients in 15-minute blocks, and at $5,000 per patient, generate $50,000 of revenue in just 2.5 hours. This is a huge business.
I represent patients with bad LASIK outcomes nationwide. The surgery is not complex. Most errors occur in the screening with the doctors who are too busy running the conveyor belt to notice warning signs of unsuitable LASIK candidates. The industry, whose numbers I am inherently skeptical about, claims the incidence of post-LASIK ectasia is less than 1%.
The post-LASIK ectasia is an avoidable, surgically-induced thinning of the cornea, which causes severe problems with visual quality: blurring, double vision, halos, glare, star-bursting, ghosting, photosensitivity and impaired night vision. Its onset can be almost immediate. I had on client’s vision devolve to legally blind, 20/200, in about 2 weeks. Other cases are time bombs with a long fuse, which can take as long as five years to explode (well after New York’s 2.5 year statute of limitation for medical malpractice will likely have expired).
However, when it happens, most often, it is due to the surgeon’s malpractice. The industry makes it difficult to prove these cases of presumptive malpractice by intimidating colleagues from testifying against one another, and by retaliating against those that do. At the same time, I’ve yet to have a case where a doctor who had an obligation to repeat a bad result, or unexpected outcome, ever did. One doctor in the metropolitan New York region has repeatedly spent over $1 million in advertising his LASIK services, been sued and paid upwards of two dozen patients for his alleged malpractice, and continues to practice with seeming impunity from his colleagues and licensing regulators.
Then there is the equipment. If it is not properly calibrated by the laser facility pre-operatively, bad things will happen. If the doctor uses it in a way in which the FDA and manufacturer did not intend it, bad things will happen. If it is not well-manufactured, like the Alcon Ladarvision 4000, and enough bad things happen, it may be recalled by the FDA. But expecting the FDA to police the LASIK industry is like waiting for the Cubs to win the pennant. If it cannot get a staff person to reply to my Freedom of Information Act request concerning the LadarVision recall in seven months, how can we expect it to get an investigator to do something meaningful in timely fashion.
Finally, Ms. Ellin describes the false success of good visual acuity. It is only half of your vision. Visual quality comprises the other half. For an impeccably-credentialled LASIK surgeon to say the surgery was successful because the patient has good visual acuity is dishonest. I hear it often: 1) of the homemaker who took her cat’s medication, while the cat her thyroid medication for three days due to blurred vision; 2) of the surgical assistant who cut the patient instead of the surgical thread due to poor contrast sensitivity and impaired depth perception; and 3) of the executive whose son asks, “Daddy, why don’t you play with me anymore?”, due to photosensitivity and irritation from wind, dust, and sand. The list is limited only by space.
All of my LASIK clients are clinically depressed. One world-class photographer says, “I spent $5,000 to acquire a visual disability.” Another says his visual disability, notwithstanding his fine visual acuity, is worse than cancer. He explains, “During the Super Bowl, a cancer patient can at least watch and forget about his troubles for two hours. I’m reminded of mine every waking minute.”
After LASIK, now about 4 million people wake up and can read their clock without glasses. About 40,000 wake up and cannot, but that’s just the beginning of their daily misery, as a result of an entirely elective procedure which their LASIK surgeons sold them.