Complications never fully eliminated, despite unprecedented technologies

NEW YORK — As the refractive surgery market has grown over the past decade, so has the threat of medicolegal action. Because of this, surgeons must proactively deal with dissatisfied patients to reduce the risk of litigation, according to a surgeon speaking here.

Mark G. Speaker, MD, PhD, delivered a keynote lecture at the OSN New York Symposium, advising his colleagues on how they might learn from his personal experience with litigation. Dr. Speaker was a defendant in a lawsuit in which the judge rendered a record award of more than $7 million to a former LASIK patient. The plaintiff alleged that Dr. Speaker and colleagues failed to determine that he should not have been a LASIK candidate because of pre-existing keratoconus.

"We have outstanding diagnostic and surgical technology that provides unprecedented safety, but we're never going to completely eliminate complications or unsatisfactory results," Dr. Speaker said. "Therefore, you need to practice proactively with your dissatisfied patients."

The medicolegal system is a profit-driven structure that supports attorneys, judges, insurance companies, employees and consultants, among others, he said.

"There have been a number of harsh judgments about halo, glare, ectasia and other complications, and this encourages plaintiffs to get in the game," he said. "Marketing creates higher expectations. ... We live in a world where attorneys advertise to patients encouraging them to become plaintiffs."

Practitioners also share some of the responsibility for the increasing rate of litigation, Dr. Speaker asserted, because of the way physicians sometimes discuss the care provided by their fellow surgeons.

"Criticism of care from another doctor is often a trigger for a lawsuit," Dr. Speaker said.

If a surgeon becomes involved in a lawsuit, Dr. Speaker suggests preparing by learning how to deal with the media and hiring a good defense attorney. Surgeons must also decide whether they should settle or whether they are willing to risk having the lawsuit go before lay jurors, who generally are not knowledgeable about ophthalmology, he said.

"It is a very inefficient and inaccurate way to decide what is often a complex medical issue," he said. Nonetheless, Dr. Speaker said, the jury plays a major role in the drama of a legal battle, which he called "theater with consequences."

"The methodology is to paint a picture of everything that was done and undermine your character. You play the lead role in the courtroom drama, and the cast is the lawyer, judge and plaintiff," he said. "If you get involved, you have to understand the allegiance of the players. The interests of you and the insurance company are not always in line."