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Ophthalmology Malpractice Suits – Navigating Eye Injury Issues and Claims Involving LASIK, Cataracts, ROP, and Other Procedures Webinar Presentation Tuesday, April 23, 2013 © Todd J. Krouner, April 12,
INTRODUCTION 1.LASIK SURGERY MALPRACTICE CASES ARE ATTRACTIVE FOR PLAINTIFFS A. GENERALLY, DOCTORS WIN 80% OF MEDICAL MALPRACTICE CASES. B. GENERALLY, MY SUCCESS WITH LASIK CASES, EXCEEDS 80%. 2 © Todd J. Krouner, April 12, 2013
C. WHY THE DIFFERENCE 1.IT IS ELECTIVE 2. THERE IS NO UNDERLYING DISEASE 3. SURGEONS TURN CORNEAS INTO COMMODITIES, INVITING CONVEYOR BELT ANALOGIES THAT DESTROY JURIES PREDISPOSITION IN FAVOR OF DOCTORS. $250/EYE! 3 © Todd J. Krouner, April 12, 2013
D. SIGHT IS THE MOST IMPORTANT OF OUR FIVE SENSES 80% of what we learn comes in through our eyes. Jurors can be made to appreciate how diminished vision adversely impacts all aspects of daily life activity - - even though plaintiffs may appear well and are not physically deformed. 4 © Todd J. Krouner, April 12, 2013
II. LASIK Surgery Negligence A. TYPES OF CASES 1.CONTRAINDICATIONS - - ECTASIA Corneal ectasia is one of the most devastating complications after LASIK. Post-LASIK ectasia is considered in patients who developed increasing myopia, with or without increasing astigmatism, loss of uncorrected visual acuity, often loss of best-corrected visual acuity, with keratometric steepening, with or without central and paracentral corneal thinning, and topographic evidence of asymmetric inferior corneal steepening after LASIK procedure. Ectatic changes can occur as early as 1 week 2 or can be delayed up to several years after LASIK. 5 © Todd J. Krouner, April 12, 2013
ECTASIA IS PRESUMPTIVE EVIDENCE OF MEDICAL MALPRACTICE 95% OF THE TIME POST-LASIK ECTASIA IS CAUSED BY A SURGEON MISSING WARNING SIGNS IN PRE- OPERATIVE TOPOGRAPHIES. See J. Bradley Randleman, MD, Buddy Russell, FCLSA, Michael A. Ward, MMSc, FAAO, Keith P. Thompson, MD, R. Doyle Stulting, MD, PhD, Risk Factors and Prognosis for Corneal Ectasia After LASIK, Ophthalmology, 2003; 110: ; Randleman JB, Woodward M, Lynn MJ, Stulting RD, Risk Assessment for Ectasia after Corneal Refractive Surgery, Ophthalmology 2008; 115: © Todd J. Krouner, April 12, 2013
2. FLAP COMPLICATIONS 3. DATA ENTRY ERRORS 4. MAINTENANCE ERRORS 5. PRODUCT ERRORS ALCON LADAR 6000 BAUSCH & LOMB ZYOPTIX 317 BUT SEE Riegel v. Medtronic, Inc., 552 U.S. 312 (2008). 7 © Todd J. Krouner, April 12, 2013
Refractive Surgery Malpractice 1. Schiffer v. Speaker – Ectasia - $7.25 M Verdict 2. J.C. - Ectasia where prior doctor said patient was not a good candidate 3. R.P. - Failure to calibrate laser resulting in severe central islands 4. R.G. - PRK on central frank keratoconus (see case study by Dr. Randleman) 5. Martinez v. Neatrour - Ectasia 6. S.D. - DEA cocaine use (ectasia) 7. A. P. - Ectasia/alteration of records/loss of insurance coverage 8. Devadas v. Niksarli - Ectasia/alteration of records/$5.6 M verdict 9. R.D. - Ectasia 10. J.R. - Defective medical device recall of Alcon Ladar vision 6000 central islands 11. D.K. - Defective medical device recall of Alcon Ladar vision 6000 central islands 12. S.P. - Defective medical device recall of Alcon Ladar vision 6000 central islands 13. M.S. -Hyperopic ectasia after 11 refractive procedures 14. L.S. - Hyperopic ectasia following four surgeries 15. J.D. - Steroid induced glaucoma following LASIK 16. E.K. - Ectasia - $950,000 for housewife with no loss of earned income 17. D.D. – Ectasia - $1M 8 © Todd J. Krouner, April 12, 2013
B. STATUTES OF LIMITATIONS 1. NEW YORK – CONTINUOUS TREATMENT 2. NEW JERSEY – DISCOVERY 3. FLORIDA – STATUTE OF REPOSE 9 © Todd J. Krouner, April 12, 2013
ECTASIA IS A TIME BOMB WITH A LONG FUSE LITERATURE REPORTS 6 YEAR DELAY IN DETONATION ONE DOCTOR REPORTED A 13-YEAR DELAY IN ONSET WHERE DOES THAT LEAVE PATIENTS IN TERMS OF A CLAIM? IS THE CLAIM BARRED BEFORE AN INJURY EVEN MANIFESTS ITSELF? 10 © Todd J. Krouner, April 12, 2013
C. STANDARD OF CARE 1.WHITE PAPER See Perry S. Binder, MS, MD; Richard L. Lindstrom, MD; R. Doyle Stulting, MD, PhD; Eric Donnenfeld, MD; Helen Wu, MD; Peter McDonnell, MD; Yaron Rabinowitz, MD; Keratoconus and Corneal Ectasia After LASIK, Journal of Refractive Surgery, 2005, 21: NO STANDARDS? WILD WILD WEST OF LASIK 11 © Todd J. Krouner, April 12, 2013 DRAFT 4/12/2013
A. INTRAOPERATIVE PACHYMETRY B. MICROKERATOME 2. BUT SEE, T.J. HOOPER © Todd J. Krouner, April 12,
D. CASE EVALUATION 1.LIABILITY EXPERT REVIEW – PRE-SUIT GOOD LUCK FINDING AN EXPERT CASE STRENGTH 1-10 A. ECTASIA B. WRONG NUMBERS C. DRY EYE D. INFORMED CONSENT © Todd J. Krouner, April 12, 2013
2. DAMAGES (a) ECONOMIC LOSS (b) PAIN AND SUFFERING, INCLUDING LOSS OF LIFES ENJOYMENT (c) MEDICAL EXPENSES CORNEAL TRANSPLANTS © Todd J. Krouner, April 12,
E. MEDICAL RECORDS A.WITHHELD B.BLACK AND WHITE INSTEAD OF COLOR C.ALTERED (LOSS OF INSURANCE COVERAGE) D.FORGED/FABRICATED E.DESTROYED F.ELECTRONIC 15 © Todd J. Krouner, April 12, 2013
F. VISUAL FUNCTION FORMULA 1.VF = VA + VQ FUNCTION = ACUITY PLUS QUALITY 16 © Todd J. Krouner, April 12, 2013
2. ELEMENTS OF VISUAL QUALITY 17 © Todd J. Krouner, April 12, 2013 LIGHT SENSITIVITY DIFFICULTY NIGHT DRIVING DOUBLE VISION FLUCTUATION IN VISION GLARE HALOS STARBURST DRYNESS PAIN FOREIGN BODY SEE GEORGE WARING, M.D., et al., Laser in situ Keratomileusis for Spherical Hyperopia and Hyperopic Astigmatism Using the NIDEK EC-5000 Excimer Laser, JOURNAL OF REFRACTIVE SURGERY, 2008; 24:
3. POOR VISUAL QUALITY CAN ELIMINATE GOOD VISUAL ACUITY A. CONTRAST SENSITIVITYB. DEBILITATING GLARE © Todd J. Krouner, April 12,
G. VISION SIMULATIONS 1.VISIONSIMULATIONS. COM 19© Todd J. Krouner, April 12, 2013
2. CUSTOM A. CONTROLB. WORSE EYE UNCORRECTED © Todd J. Krouner, April 12,
A. CONTROLB. WORSE EYE UNCORRECTED © Todd J. Krouner, April 12,
3. ABERROMETERS SCHIFFER E 22 © Todd J. Krouner, April 12, 2013
III. TRIAL OF THE LASIK CASE A. JURY SELECTION 1. JURY EXPERIENCE WITH LASIK 2. ELECTIVE SURGERY 23 © Todd J. Krouner, April 12, 2013
B. THE LASIK CONVEYOR BELT 1. LASIK CO$T 2. LASIK SHOOTERS 3. CO-MANAGED CARE. FOLLOW THE MONEY 4. SURGICAL SCHEDULE – 15 MIN/PATIENT 5. LUCY AT THE CHOCOLATE FACTORY MCDONALDS OF LASIK 6. DOCTORS DONT KNOW THEIR PATIENTS 24 © Todd J. Krouner, April 12, 2013
C.SHOW AND TELL 25 © Todd J. Krouner, April 12, 2013
D. INFORMED CONSENT 1. WAIVE THE CLAIM 2. PRECLUDE PLAINTIFF FROM BEING CROSS-EXAMINED BY LAUNDRY LIST OF SURGICAL RISKS © Todd J. Krouner, April 12,
E. PAIN AND SUFFERING 1.PHYSICAL 2.EMOTIONAL – DEPRESSION 3.LOSS OF LIFES ENJOYMENT 4.PERSONALITY AFFECT 5.AESTHETIC LOSS 6.HAZARDS (a) MEDICAL – CORNEAL TRANSPLANT (b) ENVIRONMENTAL 27 © Todd J. Krouner, April 12, 2013
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