I AM considering laser eye surgery. The surgeon has warned me in advance of the risks. Do I still have legal recourse if something goes wrong?
LASER eye surgery is a popular procedure for people who suffer from long sightedness, short sightedness or astigmatism. If it goes well people can dispense with their glasses or contact lenses as their vision is much improved.
There are several types of laser eye surgery but the basic principle is the same -- reshaping of the cornea to improve vision.
The usual procedure is for a flap to be either cut in the cornea and lifted or else the top layer is removed. The cornea is the transparent part of the eye that covers the iris and pupil. A laser is then used to reshape the part underneath before replacing the flap or removed layer.
While there have been many successful procedures, sometimes things can go wrong. A study by the 'Review of Optometry' showed that up to one in six people had some post-surgery complications that affected their eyesight.
The side effects listed included permanent dry eye syndrome, deterioration of vision quality and other problems like irregular astigmatism.
Practitioners should make patients aware of recognised risks before the surgery is undertaken. These risks would commonly include dryness of the eyes following the procedure and some night vision problems.
The night vision issues may involve a 'halo' effect around bright light sources at night, which usually subsides in time.
The risks or after-effects of the surgery should be explained prior to the procedure, so that it's possible for the patient to give their informed consent.
Consent is 'informed' when a doctor sufficiently informs a patient about the procedure that the consent is required for. If a doctor gives the advice or warnings that any reasonable doctor would give, then there's no negligence.
The 2007 Irish case Fitzpatrick v White concerned a failure to give a warning to a patient prior to eye surgery.
The patient was admitted for surgery to correct a slight squint for cosmetic reasons. There was a gradual slippage in the medial rectus muscle behind his eye in the months following the surgery resulting in a worse squint and double vision.
His appeal to the Supreme Court was confined to the claim that consent wasn't valid because it was only obtained 30 minutes beforehand. The court rejected the patient's claim on the basis that the warning given to him was adequate.
If a surgical error results in an injury to the eye then there may be grounds for a negligence action. Clinical negligence in a laser eye surgery procedure includes if equipment isn't set properly or the surgeon's technique is incorrect.
The question to answer to establish professional negligence is whether the doctor is guilty of a failure that no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
Recent successful cases include a person who took a case against an ophthalmic surgeon who had mistakenly entered the wrong patient's data in a laser machine when carrying out the surgery.
The ophthalmic surgeon had entered the details of a patient with the same name but with a different address and date of birth. Following the surgery the plaintiff was rendered close to blind for almost six months.
In the UK a children's author and illustrator was recently awarded £250,000 (€313,000) in compensation seven years after botched laser eye surgery left her with blurred vision.
Jan Fearnley went to a private eye clinic to cure her short-sightedness but ended up permanently scarred.