A Pain in the Eye That's Forever 

Lasik and its failures

Page 4 of 7

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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