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American regulators have absolved an ophthalmologist accused of professional misconduct in performing LASIK and PRK. Kenneth Kawesch MD, who was one of the first ophthalmologists in the world to face misconduct charges for performing refractive surgery, was acquitted of the charges in December 2003.The charges, brought by the medical licensing board in the state of California, centred on poor outcomes in 16 patients. For more details about the background of the case against Dr. Kawesch, see the October 2002 issue of EuroTimes at www.escrs.org/eurotimes/October2002/regmatters.asp. In winning his acquittal, Dr. Kawesch proved what refractive surgeons on both sides of the Atlantic know from experience: bad outcomes don't prove negligence or misconduct.The result of the case should also chasten regulators everywhere about future prosecutions, according to a lawyer for Dr. Kawesch."If there is one thing that this case demonstrates, it's that the powers that be should be more careful and circumspect about what they say about doctors," lawyer Michael Lipman told EuroTimes.Mr. Lipman complained that medical board regulators, state government officials, and even members of the press targeted Dr. Kawesch not because of his ophthalmic skills but because of the way in which he practiced those skills. "He was an attractive target," Mr. Lipman said. "He was highly visible and made a lot of money." A reputed mega-millionaire, Dr. Kawesch regularly advertised his LASIK services directly to would-be patients on television, in newspapers and on the Internet. According to one advertisement, Dr. Kawesch claimed to have performed more than 30,000 refractive procedures, including many on athletes and celebrities. Since June of last year however, Dr. Kawesch hasn't performed any surgery. In that month he sold his surgery centres in southern California to another California ophthalmologist for a multi-million dollar price tag.Whether Dr. Kawesch can return to ophthalmology still rests in the hands of the California Medical Board. The board absolved him of clinical negligence based on the decision of an independent administrative law judge. However, the board has reserved its right to discipline Dr. Kawesch for a criminal conviction for tax evasion. A decision is expected within the coming weeks. The saga involving Dr. Kawesch hit the headlines almost two years ago when the medical board brought its first charges against Dr. Kawesch. In 2002, the board even applied to a state court judge for an order to stop Dr. Kawesch from practicing immediately. In making the application, the medical board alleged that Dr. Kawesch was such a threat to public health that the court should stop him from practicing even before there was a full hearing on his competence.The state court judge ruled that Dr. Kawesch had a right to practice until the medical board conducted a full investigation and gave Dr. Kawesch every opportunity to defend himself. In June of 2003, that full hearing began. During the course of 27 days of hearings spread over four months, an administrative law judge, Roy W. Hewitt, listened to the medical board's allegations that Dr. Kawesch was guilty of professional misconduct. The crux of the medical board's case was that Dr. Kawesch performed LASIK and PRK on 16 patients for whom the surgery was of no use, contraindicated or explained improperly. Among the charges against Dr. Kawesch were that he: -failed to obtain informed consent before performing LASIK and PRK on patients whose conditions were particularly complex and whose outcomes were difficult to predict; -performed PRK on patients with keratoconus; -cut the cap off a cornea during a LASIK procedure; -performed LASIK on a patient who obtained only minimal benefit; -performed LASIK on patients with cataracts; -performed LASIK on a patient with glaucoma; -performed LASIK on patients with irregular astigmatism; -failed to perform a pre-operative dilated exam for retinal disease and cataracts; -used a post-operative bandage contact lens without informing the patient; -failed to remove a bandage contact lens after a procedure. uring the hearing, Judge Hewitt heard from 43 witnesses, including not only the 16 patients allegedly harmed by Dr. Kawesch but also from a number of patients whose eyesight had been improved tremendously by Dr. Kawesch. Also, more than 100 of Dr. Kawesch's patients sent in letters and e-mails in support of the ophthalmologist. For his part, Dr. Kawesch contended that he never promised any patient perfect eyesight and that he always explained the major risks and potential outcomes of refractive surgery to each patient. The judge also heard from a number of expert witnesses who testified for and against Dr. Kawesch. Experts on behalf of Dr. Kawesch testified that Dr. Kawesch followed the requisite standard of care in treating all 16 patients and in obtaining informed consent from those patients before undertaking the operations. In November, Judge Hewitt ruled that Dr. Kawesch "did not exhibit any incompetence, or unprofessional conduct" in his treatment of any of the 16 patients. The judge also went beyond absolving Dr. Kawesch and concluded that Dr. Kawesch "went overboard" to help his patients. "He exhibited outstanding surgical ability and has exercised excellent clinical judgment in his care and treatment of his patients," Judge Hewitt wrote in a 35-page decision. "He has performed over 33,000 refractive surgeries without a single proven incident, in the present proceedings, of substandard care," the judge wrote. The judge added that Dr. Kawesch "has no record of any other disciplinary proceedings or administrative action against his license during his 17 years as a licentiate. Such an unblemished record indicates that as far as quality of patient care, skill, medical practice and ability, and the proper exercise of sound clinical judgment are concerned, [Dr. Kawesch] rates an A+." Judge Hewitt also criticised the medical board for bringing the case in the first place. The judge wrote that the medical board "came up woefully short in the investigation" and "in developing credible evidence" against Dr. Kawesch. "There are few, if any, practicing physicians whose practices, procedures, charts, and files could withstand the type of scrutiny" that Dr. Kawesch underwent "without deficiencies being noted or without criticisms being levelled." In coming to his conclusions, the judge relied on a leading decision of a California court in 1977. In that case, the court ruled that: Medicine is not a field of absolutes. Different doctors may disagree in good faith upon what would encompass the proper treatment and diagnosis of a medical problem in a given situation. There is not ordinarily one correct route to be followed at any given time. There is always the need for professional judgment as to what course of action would be most appropriate with regard to the patient's condition. Were there are several methods of approved diagnosis or treatment, which could be made available to a patient, it is for the doctor to use his best judgment to pick the proper one. In addition, the judge wrote that Dr. Kawesch "was subjected to unwarranted public ridicule in the press, which resulted in the complete destruction" of his business." In his ruling, Judge Hewitt emphasised that the 16 complaints on which the case was based were taken from more than 22,000 patients that Dr. Kawesch operated on over a five-year period. "Of those 16 cases, cases that were subjected to extreme, meticulous, scrutiny; none were found herein to have involved any negligence whatsoever," Judge Hewitt wrote. "In each and every case his care and treatment was exceptional."
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