Lasik and the Patients Right to Know
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In the summer of 2001, I tried a landmark case in Worcester, Massachusetts. I represented the family of a young man with hemophilia that died from receiving clotting concentrate infected with the HIV in the early 1980s. The tragedy of the 10,000 hemophiliacs that died unnecessarily has , to this day, still not been adequately reported.
In any event, we tried the case on a theory that sounds simple, but was aggressively opposed by the defendants and the medical community. We argued that, even though research regarding AIDS was not completed, that the medical community still had a responsibility to inform the families of children receiving clotting concentrate of the potential risk of AIDS. Although we could not prove what lot of concentrate killed our client, the jury found one defendant physician negligent for failing to adequately disclose known risks. I would certainly feel honored if this case, on which I worked for 6 years, turned out to be my legacy.
However, today we now read that the FDA is beginning to look into the "risks" associated with Lasik surgery. This, after a decade of patients/victims suffering from life altering side effects, including worse vision, dry eye, pain, glare and others. One law school student, Colin Dorrian, committed suicide last year after suffering from a deep depression associated with his eye pain.
Does anyone think, or believe, that these conditions and risks were not known ten years ago. Of course they were. Interestingly, a well known oncologist that I recently worked with on a cancer diagnosis case told me he wouldn't have Lasik surgery if they did it for free. He also would not allow anyone in his family to have the surgery. Unfortunately, the FDA investigation comes years too late for many patients that have suffered permanent damage.
Someday, the medical community and the FDA will learn that patients have the right to know. It is the patients right to have the information required to make an "informed decision" about whether or not to take a medication or have a procedure. In the 1980s it was AIDS. Today you can pick a medication. Did the patient know about all the risks before a medication was prescribed or a procedure was recommended? Did the FDA have all the information that should have been provided by the manufacturer? Simple but essential questions.
In 2001, my jury in Worcester said the patient had a right to know. Hopefully, juries will continue to make this important statement.