Can You Sue?

As attorneys practicing in the field of Opthamalogic malpractice barely a day goes  by in which we are not asked this question. Our decision to accept or to reject a matter presented to us is weighed just as heavily as the decision to undergo the surgery was weighed by our potential client. There can be no doubt that refractive surgery can do harm. If you are reviewing this website it may be because you have been injured by refractive surgery and you want to know if there is anything you can do about it. An old legal axiom "Mere injury, without fault, will not stand" says it all for attorneys practicing in the field of medical malpractice. Simply put, it is not enough that you have been injured as a result of the refractive surgical procedure you have undergone, you must establish, to the standard set by the state in which you were injured, the failure or failures which have resulted in the injuries you have sustained. This article will attempt to identify those areas where the failure is most likely to occur, but every set of circumstances is different and every experience unique. Malpractice may exist beyond the scope explored here and this article is not intended to substitute for the advice of an attorney. Malpractice is differently viewed in every state and while this article attempts to be jurisdictionally neutral, a slight New York spin may be unavoidable as it is the jurisdiction in which the author practices law. If you believe you have sustained an injury as a result of  refractive surgery gone badly, consult with an attorney who will work with you to get an opinion from an independent medical expert and to evaluate whether actionable fault (something for which you can sue) resulting in your injury appears to exist.  


Unlike most other areas of medical malpractice, some claims against laser eye surgeons and the corporate giants behind them may stem from the manner in which they attracted you to refractive surgery generally and to them in particular. Refractive surgeons and the businesses surrounding them are competing in a manner that medical professionals never really have before, they are advertising (see Ebay auction as an example). They find themselves having to fight for patients in an increasingly difficult marketplace. Price competition all but ignores the question of whether a surgeon has the requisite skill and experience to perform an operation on anything as fragile and as important as one's eyes, but if the only criteria used in selecting a surgeon began and ended with a dollar sign, fault may well lie on both sides of the scalpel. Of greater interest from the point of view of attorneys are the promises made in the ads of refractive surgeons.

Federal and local consumer protection laws govern the promises that are made in the ads and the nature of the promises contained in the ad may give you the ability to sue your surgeon even where you cannot otherwise seek redress for a failed refractive surgery procedure in a "traditional" medical malpractice lawsuit. Advertising is considered  "deceptive" if it is likely to mislead "reasonable" consumers and if it is likely to affect consumers' conduct or decisions. A practice is "unfair" if it causes or is likely to cause injury to consumers that they could not reasonably avoid and that is not outweighed by the benefits. The Federal Trade Commission, basically, has three simple guidelines for all advertising:

     1.   Tell the truth. Don't mislead consumers about the benefits or safety of your product by what you say expressly or by what your ad implies.

     2.   Tell all the truth. Don't omit information that is needed to keep what you say from being deceptive.

     3.  Make sure it is the truth. Have adequate support for any objective claim, express or implied.

The web sites of doctors providing laser surgery must, but frequently don't, disclose all the risks and complications, as required by FDA rules, whenever a particular laser's benefits are mentioned in marketing materials.

Each State has is own set of consumer protection legislation against which the promises made by refractive surgeons in their advertising and literature must be viewed. In many cases there is a fine line between mere "puffery" (just generally saying how good you are and how good laser surgery is) and a deceptive advertisement (Perfect vision every time and guaranteed no night vision problems").

Please note that the attorney who may represent clients in medical malpractice may not be the same attorney who pursues claims for deceptive advertising practices. They will, undoubtedly, be able to refer you to an attorney who may handle such matters.



Informed consent is a process, not just the document your surgeon or his staff will ask you to sign at the time your surgery is to be performed. Information must be presented to enable persons to voluntarily decide whether or not to undergo the contemplated procedure. The procedures used in obtaining informed consent should be designed to educate the patient in terms that they can understand. Therefore, informed consent language and its documentation (especially explanation of the alternatives, risks and benefits) must be written in "lay language", (i.e. understandable to the people seeking the surgery). The consent document must be revised when deficiencies are noted or when additional information will improve the consent process.

Statutes define lack of informed consent as meaning the failure of the person providing the professional treatment to disclose to the patient such alternatives to the procedure and the reasonably foreseeable risks and benefits involved in the operation as a reasonable medical practitioner, under similar circumstances, would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation. To succeed in a law suit based upon lack of informed consent you must  first present expert medical testimony to support your belief that the information provided to secure your consent was insufficient. 

                                    The Standards

Once you have shown that the information provided was insufficient you will have to meet one of three standards to be able to sue:

1) Reasonable physician standard: what would a typical physician say about this intervention? This standard allows the physician to determine what information is appropriate to disclose

2) Subjective patient standard: what would this patient need to know and understand in order to make an informed decision? This standard is the most challenging to incorporate into practice as it would appear to require the tailoring of information to each individual patient.

3) Reasonable person standard: Would a reasonably prudent person in your position (NOT YOU)  not have undergone the operation had they been fully informed. 

You may then, depending on the jurisdiction where you sue, have to show not only 1)that the information provided was not sufficient 2) That you have met the applicable of the three standards above but also 3) that the injury sustained was the injury for which inadequate warning was given.

The adequacy, or lack thereof, of the informed consent which is a necessary component of every surgical procedure may well be the most fertile area in which malpractice is committed by refractive surgeons. As stated above, surgeons are now competing with their peers for each and every potential patient. The corporate world has involved itself in the practice of medicine in a way it never has before and, in many cases, seeks to groom the experience of the patient in a way designed to attract those who are considering the operation, to keep those who have decided to undergo the operation and to keep the image of refractive surgery as neat and clean as possible so as to be able to attract those who have not yet seriously thought about the operation. Simply put, they want to get you, once they get you they don't want to scare you off and they want to make sure those leaving their offices have nothing bad to say. Corners are sometimes cut to achieve their goal. 

Make no mistake about it informed consent was and is, primarily, a device used for the protection of doctors by doctors. They give it to you to protect themselves from law suits. That's not, obviously, how the document was intended but it, like many well intended things, has had its use perverted by those with a self serving agenda. 

Initially the Courts viewed the failure to provide adequate information upon which one could base their consent to have a surgical procedure as negating the consent itself. It made sense. If someone doesn't give you all of the known information before you decide to go ahead, your decision to go ahead shouldn't be held against you. The Courts treated operations occurring with defective consents as an unconsented touching or a battery (in some states, an assault). In that way almost anything that happened could form the basis for a suit against a doctor. The Courts came to hold that this approach placed too great a burden on the medical profession (can you spell powerful lobby?). Today, the Courts almost unanimously treat lack of informed consent as another branch of medical malpractice and treat it as negligence for a physician to fail to disclose necessary information to a patient.

The concept of informed consent is based on the principle that a physician has a duty to disclose to a patient information that allows the patient to make a reasonable decision regarding his or her own treatment. Although the exact content included in refractive surgery informed consent should vary from individual to individual as each individual is unique and approvals for lasers themselves are given for differing prescriptions, physicians, generally, have one form that they give to all of their patients, which is intended, in theory, to serve the needs of all. Having reviewed close to 100 different informed consent forms in preparation of this article, Informed Consent documents range in length from barely three pages to over twenty-five. Now, while length is, clearly, never the factor to be used in determining adequacy, it is clear that the twenty-five page document must contain information not present in the three page version. There are those who believe that some Informed Consent forms are so overpowering (not necessarily thorough, however) that they serve to "Hide in plain sight" all of the risks and lead many to just skim and sign instead of fully digesting a more comprehensive, but compact, document.


Contents of the Informed Consent

The informed consent that you were given should, at a minimum, have contained:

  • An explanation of the medical condition which warrants the proposed procedure

  • An explanation of the purpose of the proposed procedure or treatment

  • A description of the proposed procedure or treatment including known and/or anticipated side effects

  • A discussion of the known risks (including all known conditions which might render the surgery inappropriate for a particular patient) and benefits of the proposed procedure or treatment, a presentation of alternatives to the procedure being contemplated and  their known side effects, risks and benefits 

  • A discussion of the consequences of not accepting the proposed procedure or treatment

  • A statement that the procedure may involve risks to the patient which are currently unforeseeable

  • A statement of the individual's right to withhold their consent to the proposed procedure and a statement that such refusal will not impact on the individual's current or future right to receive continuing health care

  • A statement that the individual may withdraw consent to the procedure at any time and that such withdrawal will not impact on the individual's right to receive continuing health care

 It is the responsibility of the physician to present all information necessary for informed consent to the individual and involved family members in a way that is understood by them. This includes the use of words, phrases and language that they understand. If necessary, an interpreter should be involved. In addition, other members of the health care team, such as nurses, may clarify information and answer questions regarding the information presented by the physician. It should be noted that some states follow the "prudent physician" standard to judge the reasonableness of an informed consent. That is to say, the question is not, "What would a reasonably prudent patient require by way of information," but rather, "What would a reasonably prudent physician provide?". There can be no question that within the area of informed consent there is far more gray than black or white.

Presentation of the Informed Consent

As important as the content of the Informed Consent document is, of equal importance is the manner in which the patient has been presented with the information. 

It is best if the patient has been provided with the informed consent at least a week in advance of the procedure. If you are presented with the document as you are sitting in the waiting room waiting for your surgery, it can well be argued that no matter how complete the document it is difficult at best , and impossible at worst for anyone, to review and digest the information which should properly contained therein in the limited time period provided let alone them being asked to do so while they are working with the additional stress and distraction of their pending surgery.

The mere presentation of the document is, again, insufficient for a surgeon to have met their responsibility to the patient. First and foremost the document must have been provided in an understandable format. Layman's English, not 'doctorspeak', is essential. If English isn't your first language the document should have been translated for you, line by line, not paraphrased by an employee of the surgeon or the center and it should not be left to a friend or family member who may have come with you as they may well be no more familiar with the terms they are reading than you are.  The surgeon or other members of the health care team, should have been available to review the document and to clarify information and answer all the questions you may have regarding the information presented  in order for you to make an informed decision about the contemplated surgery. 

 It is of particular concern when the Informed Consent is negated by the manner in which it is presented. Laser centers have been known to give cash incentives to their employees to get a non-refundable deposit from potential patients and to “move” patients from lower priced to higher priced surgeries to get a non-refundable deposit from "move" patients from lower priced to higher priced surgeries.  Frequently informed consent documents are presented as "just something we have to get you to sign"  or with "Don't worry, none of this ever happens, we just have to put it all in". Informed consent forms for PRK have even been give to those undergoing LASIK. Sometimes well intentioned office employees will negate the substance of the informed consent either just to try to calm an apprehensive patient or to keep business in the office. Particular attention should be paid to how and when you were given the informed consent documentation, who was present when you reviewed it  and what role if any, they played in your execution of the document.

From an article in the Washington Post on Tuesday, September 4, 2001, the quote below is about Laser Vision Institute (LVI), that required its counselors to "close a deal" with 75 percent of possible customers to qualify for bonuses, and the chain based commissions on how much the patient paid:

"To ensure that patient counselors are performing adequately, LVI sends undercover evaluators acting as prospective patients. One question on the evaluation form, worth 35 of a possible 58 points, asks, "After giving the counselor a reason why you were not committed to leaving a deposit today, did they make a STRONG ATTEMPT to get you to change your mind? How many attempts did the counselor make to have you leave a deposit?"


Some former LVI counselors said they sometimes used a technique common in the selling of cars and appliances but nearly unheard of in the selling of medical services: the faked meeting with the manager."

The above applies only to LVI but may well be systemic, extending to providers in addition to LVI, but not yet uncovered.

An informed consent, executed under these circumstances, may well be subject to attack, giving you the right to sue where, on paper, it might appear that you were otherwise precluded.

PLEASE NOTE: The mere fact that you have signed a consent form does NOT mean that you cannot sue for malpractice. A consent form does not give the health care provider a license to commit malpractice. While the execution of a typical consent form indicates acknowledgment of stated risks and complications associated with a given treatment or procedure, it does not relieve the health care provider from his or her duty of meeting the standard of care associated with such treatment or procedure. So many informed consent forms are deficient or are presented in such a manner as to devalue or negate entirely the fact that they were presented at all that it is important for you to understand that only a qualified legal and medical professional, each reviewing the totality of the facts unique to your case, can determine if there is any significance to the form you may have signed.



While there are various types of medical malpractice claims, generally speaking, you must usually show that a doctor patient relationship existed, that the doctor failed to perform to the appropriate medical standard, that the patient was injured and that the doctor's departure from that standard was what caused the injury the patient now sues for.

It must be understood that the standard against which the surgeon will be judged varies depending on where the doctor is practicing. A doctor has a duty to give his patients proper medical care within a reasonable standard set by doctors within the same medical field. This "standard of care" test is used to determine whether or not a doctor has committed medical malpractice by doing something he should not have done or failing to do something he should have done, resulting in his medical care falling below the "standard" and thus constituting medical malpractice. If the medical professional fails to meet the standard of good medical practice and harm results to a patient, the medical professional may be liable for any resulting damages. In the case of a doctor who is a medical specialist, the standard of care is determined by the standard of good medical practice in that particular specialty.

The determination as to whether the standard of care has been breached is not made by your lawyer. It can be made only by a doctor experienced in the area of medicine with which your potential claim is concerned. This expert doctor will review your medical records and may also examine you to evaluate your claim. It is this doctor who will advise your lawyer as to whether the standard of care has been breached and whether you have been harmed as a result and therefore can sue. Ideally, that doctor will also be prepared to serve as the expert you will need to prove your case because in order to win a medical malpractice case, you must have a doctor who will testify at trial that your physician violated the standard of care. The court will not accept your opinion, that of your lawyer or anyone else not qualified on this issue. Your surgeon will, in all likelihood, seek to present their own expert testimony to establish either that the standard is not as high as your expert claims or that he has met that standard. Medical malpractice lawsuits often become battles in which each side has expert witnesses declaring different opinions as to the acceptable medical standards, leaving a jury to decide what should have been done and whether your surgeon did it. Medical malpractice occurring during the surgery generally comes within two general areas:

Device Failure

A recent study showed that most LASIK complications were related to the surgeon's experience with the procedure (Stulting RD, Carr JD, Thompson KP, Waring GO, Wiley WM, Walker JG. Complications of laser in situ keratomileusis for the correction of myopia. Ophthalmology 1999). The flap is created by a microkeratome (a surgical device that is affixed to the eye by use of a vacuum ring. When secured, a very sharp blade shaves a small amount of the cornea at a predetermined depth).

Flap complications include, but are not limited to:

  • Failure of automated instrument to leave a hinge on the corneal flap, with the first incision

  • Loss of the corneal flap during the operation.

  • Loss of the corneal flap after the operation

  • Slipping of the flap and healing off center

  • First incision too deep (perforation of the eye) or too shallow, causing a hole in the flap

  • Invasion of the surface tissue into the central tissue of the cornea.

  • Infection of the cornea

  • Loss of visual acuity - from scarring or from decentration of the ablation

  • Technical problems with complex and finicky automated diamond cutting devices

The LASIK procedure is much more dependent upon surgeon's operating skills, than the computerized precision of the PRK procedure. Flap quality is affected by the performance of a microkeratome. Particularly notable is the adjustability of several features of some of the units, allowing the operator to develop parameters suitable to their own needs and experience. The obligation to select a proper microkeratome and to maintain it in proper working order clearly belongs to your surgeon. You may be able to sue both the doctor and the maker of the microkeratome in the event it becomes the cause of post-operative problems. It's sometimes easier to sue your doctor only and leave the suit against the manufacturer to him in the event he believes it was a defect in the device that caused the injury.

The second surgical device in use during refractive surgery is the Excimer laser. This is a high-energy "cold" laser that is used to sculpt the central zone, or visual axis, of the cornea. The laser emits a pulsating beam of ultraviolet light that ablates, or vaporizes, the corneal tissue to the degree designated and as guided by a computer within or connected to the laser system. Problems with the laser, the software which runs it or the computer which runs it all can all form the basis for post-refractive problems.

Surgical Error

Medical malpractice is perhaps more accurately called medical negligence. In cases in which an injury has occurred during the course of medical care, medical negligence is proved if the injured person or his or her family shows that the care received was below accepted medical standards.

Inadequate Post-Operative Care 

First, you should have been given a set of instructions regarding what you were to do following the surgery. You should have been instructed to bring someone with you to assist you in getting home. You should have been given, in writing, a list of do's and don'ts for the days after your operation. The list should have been something like this:

1. Do not rub or squeeze your eyes for one week 

2. Use eye drops as instructed 

3. Wear sunglasses 

4. Wear the eye shield for the first three nights after the surgery.

5. No make-up for one week 

6. Avoid smoke filled rooms and dusty environments for a few days. 

7. No water activities for 3-4 weeks including swimming, hot tubs, etc. 

8. No sports for one week 

9. Call the office if you have severe pain that cannot be controlled with over the counter pain medications 

Inadequate Patient Follow-Up 

Follow up visits must be scheduled. They should be set at reasonable intervals (usually around one day, one week and one month, three months, six months and one year following surgery). Additional visits are requested as necessary. Long term (at least annually) follow-up must also be stressed. The problem here is that frequently the post-operative care is left entirely to a staff or referring Doctor of Optometry (O.D.) and you do not get to see your surgeon beyond the first follow up appointment. You are sometimes required to discuss all post-surgical complications with the O.D. as a portal to the surgeon. This is a cause for many problems and it is an area upon which you, your attorney and the expert you have chosen must focus to determine if the imposition of a "chain of command" has amounted to an abandonment by your surgeon and has negatively impacted upon your care.

Remember, medical malpractice lawsuits can be boiled down to the instructions that will generally be given to a jury at the end of a trial, just before they begin their assessment of what has been presented to them:

"If you find that the defendant has complied with the accepted standard of medical care, then he/she is not liable to the plaintiff regardless of the result. On the other hand, if you find that the defendant has departed from the accepted medical standard, then you must determine whether such deviation or negligence was a proximate cause of any injury sustained or any loss incurred by the plaintiff".



A person who is the victim of medical malpractice can sue for the injuries and all direct consequences of those injuries. "Direct consequences" include any mental or physical pain and suffering (including the full range of activities in which the injured person cannot engage and/or enjoy as a result of the injury) caused by the careless doctor and any lost wages, medical expenses or other economic damages resulting from the injury. The damages are intended to be such that they will place the injured party in the position they were in immediately before the defendant's negligent act.  In other words, the plaintiff is to be compensated for all past, present, and future harm caused by the defendant's medical malpractice.

 It is essential that an attorney representing an individual injured in a refractive surgery procedure understand the life changing effect of failed eye surgery. Plaintiffs in these types of cases suffer the distinct disadvantage of walking into a courtroom looking exactly as they did prior to the surgery. There is no limp, no scar, no missing limb to serve as a benchmark of the damage done. Juries are just regular people and suffer from the same lack of understanding of the consequences of a failed laser refractive surgery as do most of the people we encounter in our day to day lives. An individual who believes that they have been a victim of malpractice at the hands of a refractive surgeon should immediately begin maintaining a diary of their experiences. Keeping daily notes of things they cannot do, things they can only do with difficulty, their feelings and  frustrations could prove invaluable as the case moves forward through discovery, settlement discussions and to trial. Trying to remember it all, years later, is almost impossible and the doctors and insurance companies know it. Preparation is the key to success in all forms of litigation. 


All states have laws (Statutes of Limitation) which define the time periods within which a law suit must be started or the right to sue may be lost. There are differing rules as to when the time clock starts to run and what, if anything, stops (tolls) the clock from ticking. Depending upon whom you intend to sue some deadlines may come mere months after surgery (especially true when a governmental entity or employee is the one being sued). If you believe, even remotely, that you may have a malpractice claim against the doctor who performed your surgery, you should immediately contact an attorney to confirm what the applicable Statute of Limitation is to make sure that your valuable right to sue is not lost.


If you think that you have a valid medical malpractice lawsuit, it is wise to seek out an attorney who handles cases of the type you are seeking to commence. Medical malpractice is an extremely complicated area of law that raises many complex and intellectually difficult legal and medical issues. Due to the heavy reliance upon medical experts, the cost involved in bringing a successful medical malpractice suit is very high. Most attorneys will provide a free initial consultation to determine whether the case is worthy of further investigation. Most malpractice attorneys work with experienced experts who can determine not only whether the case is viable, but also how difficult the case will be to try before a jury.

If you are interested in the background of your surgeon, summary information of disciplinary actions taken against licensees by the Board of Regents in New York State since January 1, 1994, together with information about malpractice claims (NOT current or accurate) and criminal convictions is available from the New York State Department of Health Office of Professional Conduct. For other states, you can begin your search at the Federation of State Medical Boards, they even operate a  pay service for you to search out information about a doctor, but check with the individual states first, as it may well be available for free.

     This website is not intended to replace the advice of an attorney. If you believe that you are the victim of medical malpractice contact a qualified attorney immediately 





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