By Arthur W. Allen, MD
[Digest, Summer, 1991]
Claims arising out of disorders of the retina and vitreous are second only to cataract surgery in frequency among OMIC insureds, according to a review of OMIC closed claims (Figure I).
As of March, 1991, OMIC had closed 47 claims involving retinal vitreal cases. Six of these were eliminated from this study because they were not clearly retinal vitreal in nature. The remaining 41 cases were extensively reviewed for this article in the hope that other practitioners could learn from the experiences of these insured ophthalmologists.
Twenty-two of the claimants were male and 19 were female. Eighteen claims were filed in Florida, 5 in Illinois, and 3 each in Colorado and Arizona. The remainder were scattered among 6 states.
The majority of cases (24) were purely retinal vitreal while the remaining cases were complicated by endophthalmitis, expulsive hemorrhage, cystoid macular edema, vascular occlusion following cataract surgery, and lost nuclei with subsequent retinal detachment. None of the 41 claims went to trial and only five settled with indemnity payments, totalling $295,000. More than half of the total amount in indemnity payments was paid out for cases involving laser photocoagulation, including its omission or delay in treatment (Figure II).
Physician Error
One case involved a physician with limited laser experience who inadvertently photocoagulated the macula during a diabetic laser treatment. This resulted in 20/400 vision. Although a macula burn is a recognized complication of laser treatment, reviewers believed that the physician's technique contributed to the injury and the claim was settled.
In another procedure, the argon laser was used to remove pigmented keratic precipitates from an intraocular lens. During the procedure, the patient moved suddenly and a macular burn resulted with visual loss to the 20/200 level. This case was closed with no indemnity payment, however, because the patient had been warned not to move or this complication could result. In addition, the physician handled the patient well after the complication by expressing concern and sympathy.
Delays in Diagnosis and Treatment
Two age-related macular degeneration (ARMD) cases resulted in payment. Both were triggered by the physician not recognizing that a subretinal neovascular membrane (SRNVM) was present when the patient became symptomatic.
In one case, a patient with cataracts and ARMD had 20/40 vision. The patient alleged that the physician did not inform him of the risks of SRNVM nor of the need for careful follow-up. Unfortunately, there was nothing in the record to refute this. The physician had noted a subretinal hemorrhage but did not order a fluorescein angiogram (FA). The patient subsequently moved out-of-state and by the time he saw another physician the lesion was untreatable.
The second case was similar in that an FA should have been ordered immediately based on the macular findings. Instead, a routine FA was performed about two weeks later followed by a three-week delay when the lab went out of business. The end result was that the SRNVM had enlarged and although still "treatable," the final vision was 20/200. Even though this result might have been the same if the patient had been treated a month earlier, the delay gave the plaintiff's attorney the leverage needed to pursue litigation.
Both cases were settled with indemnity payments on the basis of delay in diagnosis and treatment.
Endophthalmitis is usually a very devastating complication of intraocular surgery. The five OMIC cases of endophthalmitis all wound up with poor vision and retinal complications. Only one of them, however, involved an indemnity payment. In this case, there was also a delay in diagnosis and treatment which is especially unfortunate because even with adequate treatment, results are often poor. In such cases, it is imperative that the patient be treated in a timely fashion or referred for the appropriate care. Very rarely in OMIC's experience have indemnity payments been made if the standard of care of immediate treatment or referral was followed.
Tampering with Medical Records
The most disturbing case was one in which there should have been no liability payment made on behalf of the ophthalmologist. A patient suffered a globe perforation by an anesthesiologist giving a peribulbar block prior to a cataract operation. The problem was recognized and the patient was referred to a retinal specialist who followed the patient. As the case progressed, two sets of records were found and the specialist admitted to adding a recommendation for prompt repair or referral to a medical center when it looked like a suit was imminent. The case was settled because of the delay in treatment and to avoid the potential risk of punitive damages that a jury might award in cases that involve inappropriate medical records procedures.
Poor results certainly do not mean malpractice, and liability is far from a foregone conclusion when they occur. However, they are likely to receive plaintiff-attorney scrutiny. One obvious way to limit liability exposure is to have fewer poor results and complications. Training and judgment regarding case selection are important factors in reducing this risk. The diabetic patient with the macular burn mentioned here also had a small pupil and was not an ideal patient to treat with laser photocoagulation. Both ARMD patients were seen by nonretinal specialists and had documented decreased vision and significant macular changes which should have triggered an FA. The delays in treatment were very costly to both the patients and the insured physicians.
Sympathetic Postop Care May Defuse Patient Anger
If a complication should occur, the likelihood of a suit will be less if the patient and family have been fully informed of the risks and alternatives preoperatively. Anger can be further defused by the physician expressing concern and sympathy for the patient and going the "extra mile" in postoperative care. Sometimes there is a tendency on the part of physicians to avoid problems or bad results. However, these are exactly the cases for which extra time should be allotted. Referral is also an excellent defense if done promptly. A delay, hoping things will get better, can be disastrous as in the case cited here of delayed referral for endophthalmitis.
The medical record is an important defense as well. In many cases reviewed,the claims were filed to comply with the legal time limit a patient has to formally make a claim (statute of limitations). As the records were then studied by the attorneys and their experts, it became obvious to claims reviewers that the standard of care had been adequate and the cases were dropped. Poor or incomplete records make the job much more difficult for the plaintiff's attorney and expert reviewers. When there remains a doubt as to the standard of care, the investigation will continue, increasing both the expense of the case and the anxiety of the physician. There is also the risk of polarization occurring once attorneys are heavily involved in the case.
Risk Management/Loss Prevention Issues
In summary, the following risk management practices have been found to be important in avoiding or winning claims:
- Maintain good doctor/patient relations. In other words, communicate.
- Provide adequate informed consent. Take time to explain alternatives, risks, and complications and note that you did so in a consent form or in the record. Be especially careful if preoperative vision is relatively good or the procedure is new or controversial. Consider a second opinion for high risk patients.
- Promptly respond to patient complaints, especially pain and decreased vision.
- Diagnose complications and provide appropriate treatment or referrals in a timely manner.
- Express sympathy and concern for patients with complications or poor results and allow extra time during their postoperative visits.
- Notify your carrier promptly of any untoward medical event which could likely result in a claim or medical-legal inquiry.
