By Mary Kasher, MSN, JD
OMIC Claims Manager

[Digest, Winter 2000]

Allegation

Disposition

Defense verdict at trial on behalf of insured.

Case Summary

A 46-year-old woman presented to the insured with a growth on her right eye of three months' duration. Visual acuity was 20/20 OU. Slit lamp exam showed a 1.8 mm pterygium OD and a 1.2 mm pterygium OS. The insured diagnosed growing pterygia OU. He instructed the patient to use hot compresses six to eight times a day and prescribed Vasocidin eye drops four times a day in the right eye and Tobradex ointment at bedtime for two weeks. Five days later, the patient called the insured to complain that her job as an attorney did not allow her to take time to apply compresses and eye medications throughout the day. She complained that her eyes were constantly bothering her and insisted on having the pterygia removed.

Soon after, the patient underwent a superficial keratectomy OU. Visual acuity was 20/20 OU on her first postop visit, and the wounds were healing well. Over the course of the next three visits, the incisions continued to heal, but the patient complained of redness in both eyes and was treated with Opcon-A. She did not return until one year later when she again complained of redness in both eyes. Slit lamp exam showed the pterygia had returned and now measured 1.4 mm OD and 1.2 mm OS. The insured suggested possible repeat surgery and prescribed three types of eye drops to try to eliminate the redness. The patient did not return and soon filed a claim charging that the insured had performed unnecessary surgery, without informed consent and without exhausting conservative remedies.

Analysis

That the plaintiff's attorney was highly skilled and well known for courtroom victories and the patient was a credible and sympathetic plaintiff were significant concerns in an otherwise defensible case. The plaintiff probably would have accepted a small settlement, and in fact, the plaintiff's attorney did offer to settle at one point for $9,999. Even though this would have provided an "easy way out," the insured, OMIC, and defense counsel all agreed to proceed to trial rather than settle.

At trial the case was ably presented by both sides, and after a short deliberation, the jury came back with a defense verdict. On final analysis, the case was won on the strength of the medical record, which showed the insured had obtained informed consent for surgery, and on the presentation skills of the defense expert, who was able to support the insured on the medical issues. The insured was well prepared for his testimony and impressed the jury as concerned and responsible by being present in the courtroom throughout the trial.

Risk Management Principles

The decision to take a case to trial or not is a serious matter. Ask yourself the following questions before you decide:

What are the chances of obtaining a defense verdict? Even if there is no medical negligence, as in this case, there are other factors that must be weighed in determining the overall chances of success in a courtroom. Is there likely to be a battle of the experts that will confuse a jury? Will a sympathetic plaintiff or charismatic plaintiff attorney sway the jury? How effective will you be as a witness and will you hold up under the stress of cross-examination?

Will the verdict be reported? A defense verdict does not usually need to be reported; however, a plaintiff verdict must be reported to the National Practitioner Data Bank and the appropriate state agency. The amount of the verdict is often used to determine the severity of the case.

How much time will a trial take from my practice? Most trial attorneys will request that the physician be present throughout the entire trial or at least for most of the major testimony before the jury. This could involve a time commitment of anywhere from five days to five weeks, depending on the complexity of the case.

Is there a chance that the verdict could exceed my policy limits? If there is a possibility of a large verdict, it is wise to consult with a personal attorney as to what options are available to protect personal assets.