Issue: January 1, 2001

January 01, 2001

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LASIK complications fuel class-action lawsuit

Three sisters from Washington state have filed a class-action lawsuit against a Canadian LASIK center that they claim is hiding behind policy and national borders.

Issue: January 1, 2001

SEATTLE — Canadian-based discount laser centers have been a subject of controversy in ophthalmology for more than a year now. By decreasing their surgical prices to near and below $1,000 and offering discounted air, bus and train travel and lodging, Canadian discounters have been able to entice thousands of Americans north of the border to have LASIK procedures performed. But at what cost?

Three sisters from Washington state have filed a class action suit on behalf of laser eye surgery patients against Lexington Eye Institute of Surrey, British Columbia, Focus Eye Care Inc. of Washington state, Robert Woods, MD, of Lexington and Jean Hua, OD, of Focus.

Janet Janke, Sherry Stauffer and Marie Harris claim the clinic improperly screened them for surgery and provided care that failed to meet the standard of care. The bulk of the complaint is two fold: That the sisters were not measured properly prior to surgery or were given improper postop care; and that the defendants’ business practices violate the consumer protection act of Washington state.

Hiding behind border and policy

---By decreasing their surgical prices to near and below $1,000 and offering discounted air, bus and train travel and lodging, Canadian discounters have been able to entice thousands of Americans north of the border to have LASIK procedures performed.

Ocular Surgery News was unable to reach the three sisters, but in a broadcast report featured on KOMO-TV News Seattle they described their physical conditions now.

Mrs. Stauffer says she must squint to see anything, and at night sees halos and ghosting. For instance, if a car is coming toward her she may be seeing six headlights, but she isn’t sure which belongs to the real car.

Ms. Harris says she has stopped driving at night because her vision is too blurry.

The three women also say they suffer from headaches, loss of contrast, loss of depth perception and they say not even eyeglasses can correct their vision.

Aside from the physical toll on the women, they are being subjected to several other quirks in the law and Lexington’s policy.

Lynn Sarko, JD, managing partner of the law firm Keller Rohrback that is representing the sisters, explained that 15 minutes prior to their surgeries, each of the women was asked to sign a consent form waiving their rights to sue in the United States should something go wrong. The lawsuit states that had they refused to sign, they would have to forgo surgery and not be refunded their money.

Mr. Sarko said the lawsuit, filed in Washington state, contends the Lexington policy violates the Washington consumer protection act. He contends that Lexington is shielded by Canadian law that limits what patients may sue for. Under Canadian law no punitive damage awards are allowed; in the Unites States this is often where damages in the millions of dollars are awarded. Canada also places a limit on compensatory damages.

According to Keller Rohrback’s Web site, the class suit’s allegations include violations of the Washington Consumer Protection Act, RCW 19.86, et seq. and contract law. The Washington Consumer Protection Act prohibits “unfair or deceptive acts or practices in the conduct of any trade or commerce.” Plaintiffs allege that the defendants’ unfair and deceptive practices include, but are not limited to the following:

1. The Lexington center actively solicits business from Washington residents through an extensive advertising campaign in Washington. These advertisements provide a toll-free number that Washington residents can call to arrange laser eye surgery services.

2. The Lexington center requires payment in full before any medical appointments will be made, and this payment is required before a purchaser is medically approved as a “candidate” for the surgery.

3. The center’s refund policy allows full refunds only for patients who are not approved as candidates by one of their offices in Washington. The Lexington center’s policies provide that any purchaser who is approved as a candidate by one of their offices in Washington, but later declines the surgery in British Columbia any reason including an objection to the “consent form,” is denied a full refund and levied cancellation fees.

4. The Lexington center performs pre- and postoperative care at Focus Eye Care in Bellevue and at other offices in Washington. The Lexington center’s advertisements feature “VIP Shuttle” service for $49 round trip from Seattle to Vancouver, British Columbia, where the laser eye surgery is performed.

5. Minutes before the surgery, the Lexington center requires purchasers to sign a “consent form,” which contains the purported forum-selection and choice-of-law provisions that would, if upheld, require purchasers to sue Lexington and Dr. Woods for certain claims in British Columbia and under British Columbia law.

6. Thus, the plaintiffs allege, even though the laser eye surgery purchasers are bombarded by the Lexington center’s advertisements in Washington, pay for the surgery in Washington and receive pre- and post-operative care in Washington, minutes before surgery they are required to sign provisions depriving them of the protections of certain Washington laws no matter how severely Lexington damages their vision as a result of the laser eye surgery.

Comanagement and advertising

--- The Lexington center actively solicits business from Washington residents through an extensive advertising campaign in Washington.

Referring to the low-cost laser centers as “eye mills,” Mr. Sarko explained that they are bombarding the airwaves and newspapers in the Seattle area with misleading ads offering low-risk procedures that are fast and inexpensive and provide great results, without properly emphasizing the dangers involved.

The three sisters responded to a newspaper advertisement and paid for the procedure by credit card without ever being seen by a physician. The sisters were then seen at one of Lexington’s “feeder” clinics in Washington state, Focus Eye Care of Bellevue, Wash.

Mr. Sarko explained that while the sisters were at Focus they were never seen by an ophthalmologist, but rather an optometrist and other technicians, where they were measured for refractive error and told they were ideal candidates for the surgery. “The contract was closed once they were told they were ideal,” Mr. Sarko said.

The sisters arrived at the Lexington clinic late in the afternoon, where they were met by technicians they described as “bright and cheery people.”

Once again they were looked at by the technicians and measured for refractive error and pupil size. After getting their measurements they were prepped and given their paperwork to sign – including the waiver of ability to sue in the United States. One of the sisters asked if the center had ever been sued; she was told no.

Dr. Woods performed the surgeries on the women. According to them he spent 10 minutes performing each surgery and then moved to another table with another patient waiting. The sisters said they never spoke to the doctor at any length.

The sisters stayed in a hotel in Surrey overnight and returned the next day for their postop exam. The next day flap striae were noted in Mrs. Stauffer’s chart, although she was not informed of the wrinkles. They were all released and were seen weeks later at the Focus center in Bellevue, where technicians explained that there were big problems.

All the sisters complained of significant eye problems. They sought another medical opinion at the University of Washington Eye Clinic. The opinion there was that Ms. Harris and Mrs. Janke should never have been considered candidates for eye surgery. Both of them were measured as having relatively small pupils at the Focus clinic and were given correspondingly small diameter ablations at Lexington. However, the University of Washington Medical Center measured both the women as having larger pupils that would put them in the borderline or out of range of possible treatment.

One of the most aggravating aspects of the story, the women said, was that at no time were any of them measured by a medical doctor, only optometrists and technicians. “They were diagnosed wrong at the clinic and at Lexington when they were checked again,” Mr. Sarko said. “The doctor relied on someone else for their measurements.”

According to Mrs. Stauffer’s University of Washington physician her striae are treatable, but short of a corneal transplant the problem can only be diminished, not reversed.

Mr. Sarko and his clients blame the laser surgery industry for setting them up to be hurt. “The industry bombarded them with guaranties and good buildups,” Mr. Sarko said. “Thirty-thousand procedures by Lexington and no problems.”

He said comanagement of the patients by people other than medical doctors also causes problems. “A lot of the cost difference between the eye mills and a good doctor’s office is that at the doctor’s office an MD will do the pre- and post-op. At the eye mills, they move people in and out too fast to be able to fix problems or do a proper check.”

Professionalism ahead of profit

When asked if the sisters would file suit in Canada, Mr. Sarko explained that it was not practical to sue there because of the capped damages. He believes hearings for the class certification will likely begin in King County Superior Court in January 2001.

“In this case I want the defendants to recognize that they have been targeting U.S. citizens and because of that the case must be brought to the U.S. courts,” Mr. Sarko said. He also wants to see Lexington Eye Institute come forward to resolve the case, to pay for his clients’ post-LASIK surgery re-treatment costs, and to offer a reasonable sum of compensation for the permanent injury the women have suffered.

In the future, Mr. Sarko said, he believes it is in everyone’s best interest if the discount eye surgery centers stop advertising their service as quick-fix cosmetic surgery and instead give a proper and full explanation of the risks involved. He also believes that the clinics must be properly staffed by doctors and have the best possible equipment. Finally they must make sure they properly screen their patients pre- and postop. And of course, patients need to understand that cheaper does not mean more.

Lexington and Focus speak out

Neither Dr. Woods nor Dr. Hua returned phone calls placed to their clinics. However, Lexington Eye Institute did post a statement replying to the class action lawsuit on a Web site. It reads:

“Lexington Eye Institute has received notice that a Washington State attorney has filed a class action lawsuit against our Institute. This is the first such legal action we have encountered despite having completed over 30,000 procedures since early 1999.

“While this is disappointing we are not surprised that enterprising attorneys would target our industry. Industry growth has been phenomenal and a great many practitioners have entered the field. Given this growth and the mixed quality of practitioners and facilities, legal action is not surprising. In this environment, it is a testament to our safety record that this is the first legal action we have encountered.

“Lexington Eye Institute is one of the largest laser vision centers in North America performing over 2000 procedures per month. We also have one of the most comprehensive safety and effectiveness records in the industry. Our complication rate is less than one half of one percent, considerably lower than industry standards.

“The problems allegedly encountered by the three sisters identified in this action are highly unusual. Rather than allowing us to assist them, they have chosen this means to deal with their complaints.

“We categorically deny these allegations and look forward to aggressively defending our position and reputation.”

In addition, since the case has received notoriety, on the opening page of Lexington Eye Institute’s Web page it now has links to separate articles describing the technology used, what patients can expect from LASIK, and the possible risks and complications. These links were not on the page prior to the announcement of the suit.

In a statement faxed to Ocular Surgery News, Focus EyeCare Director of Operations Dana Dixon said that Focus EyeCare had received notice that legal action was being taken against the company and one of its optometrists. Mr. Dixon explained that the allegations made by the plaintiff’s lawyer were complicated, with the main issues revolving around jurisdictional points and business practices.

“Unfortunately, neither Focus nor the optometrist, on the advice of counsel, are at liberty to comment on the action in detail except to say that the problems alleged by the plaintiffs are highly unusual. The clinic and the doctor are disappointed that [the plaintiffs] have chosen to deal with their issues in this manner when they could be resolved in a much easier way. Therefore, Focus and the optometrist named in the case are looking forward to vigorously defending their position and reputation in court if necessary,” the statement concluded.

For Your Information:

Lynn Sarko, JD, can be reached at Keller Rohrback LLP, 1201 Third Ave., Ste. 3200, Seattle, WA 98101-3052; (206) 623-1900; fax: (206) 623-3384; Web site: www.SeatleClassAction.com.
Robert Wood, MD, can be reached at Lexington Eye Institute, 15129 100th Ave., Surrey, BC, V3R 9P4; (604) 953-0385; fax: (604) 953-0521; Web site: www.lexingtoneye.com.
Dana Dixon and Jean Hua, OD, can be reached at Focus Eye Care, 1756 114th Ave. SE, Magnolia Building, Bellevue, WA 98004-6914; (425) 462-6080; fax: (425) 462-5215.