Issue: July 2014
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Injuries Resulting From Laser Procedures: Risks for Physicians, Technicians, and Manufacturers

Introduction

Liability Risks for Injury from Laser Procedures

Lasers are used in many types of medical procedures. Millions of people around the world have had the procedure known as laser-assisted in situ keratomeleusis (LASIK) eye surgery to improve their vision. Laser procedures, whether elective or medically necessary, are not without risk.

 

Lawsuits based on laser surgery have become more frequent in recent years. Plastic surgeons and dermatologists face litigation more than other types of physicians, but actions have been brought against physicians specializing in ophthalmology, obstetrics, gynecology, and radiology, and other specialties, as well as non-physician providers, including nurses, aestheticians, and spa and beauty salon technicians. Damages awarded in this type of action have exceeded $2 million.

 

Injuries also can arise because of problems or defects in medical laser equipment. The federal government regulates manufactures of medical lasers. The manufacturers must comply with a variety of safety standards.

 

Attorneys, physicians, insurers, manufacturers and other parties that are involved in actions related to medical laser procedure injuries should understand the liability issues and medical aspects of this litigation.


The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed for a lack of informed consent claim, alone or as part of a medical malpractice or negligence action, relating to a laser procedure? And, what is a potential strategy for the attorney to employ?

Physicians:

How can liability for medical malpractice be avoided for an injury resulting from a laser procedure? And, what is a potential strategy for the physician to employ?

Insurers:

Can a payout under a medical malpractice liability policy be avoided by proof that the health care provider was not negligent or there was no coverage for the laser surgery injury? And, what is a potential strategy for the insurer to employ? 

Employers:

Can an employer be subject to liability for an employee’s injury resulting from a surgical laser procedure? And, what is a potential strategy for the employer to use?

Bonus:

How can a manufacturer avoid liability for an injury related to a laser used in a medical procedure? What is a potential strategy for the manufacturer to use?


Practice the Technique: Checklists

Attorneys:

Check this list of facts and circumstances tending to show a physician’s liability for malpractice or negligence for an injury resulting from a laser procedure.

Physicians:

A physician should review the items on this list when defending against claims of malpractice or negligence involving a laser procedure.

Insurers:

The insurer should check these “red flags” and inconsistencies when investigating a claim of injury resulting from a laser procedure.

Employers:

Use this checklist to determine if the employee’s injury resulting from a laser procedure is “work related” and occurred “in the course of the employment.”

Bonus:

This litigation checklist can help the laser manufacturer determine if the manufacturer provided adequate and accurate information and warnings, if the laser equipment was defective, and if the use of the manufacturer’s medical device was the cause of the patient’s injury.

Expert Analysis

What Issues Must Be Considered to Prevent Physician LASIK Malpractice Liability?

Michael S. Kelton, JD

Why Are Education, Training, Safe Practice, and Practitioner Supervision So Important for Laser Surgery and Procedures?

Warren B. Seiler III, MD

What Principles and Regulations Govern Non-Physician Use of Lasers?

George J. Hruza, MD, MBA

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, may be mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.


Reasons To Reach Settlement

The following are reasons why the attorney, physician, insurer, employer, or manufacturer would want to reach settlement, and not take the action to trial.


Reasons To Go To Trial

The following are reasons why the attorney, physician, insurer, employer, or manufacturer would want to take the action to trial.


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in cases involving laser procedures?



Medical Examples

Laser Equipment, Safety, and Procedures

This section provides detailed medical information on laser equipment and procedures, and discusses the injured person’s prognosis and ability to work.  



Law and Medicine Resources

Law and Medicine Resources

Provided is a listing of law and medical resources for further information on liability for injury from laser procedures.


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Injuries Resulting From Laser Procedures: Risks for Physicians, Technicians, and Manufacturers

Table of Contents
Introduction

Expert Analysis
   Michael S. Kelton, JD
   Warren B. Seiler III, MD
   George J. Hruza, MD, MBA

The Perspectives: Improve Your Strategy
   Attorneys
   Physicians and Health Providers
   Insurers
   Employers and Risk Managers
   Bonus: Manufacturers

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist
   Bonus Checklist

Alternative Dispute Resolution

Reasons To Reach Settlement

Reasons To Go To Trial

Jury Awards and Settlements

Laser Equipment, Safety, and Procedures

Law and Medicine Resources