Failure to Diagnose an Eye Infection
By Mary Kasher, MSN, JD, OMIC Claims Manager, Digest, Winter 1999
ALLEGATION: Delayed diagnosis of an eye infection and dispensing medication without a license.
DISPOSITION: Claim dropped by plaintiff prior to litigation.
Case Summary
A 73-year-old woman who had been under the care of the insured ophthalmologist for several years called the insured’s office to report redness and soreness in her left eye. A prescription was called in to a local pharmacy. At this point, the patient’s version of the facts differs from the ophthalmologist’s version. The patient relayed that she called the insured’s office to report severe pain and an extremely red left eye and to make a same-day appointment. She claimed that she spoke to a secretary who told her it was not necessary to be examined and that she would call in a prescription to the pharmacy. The patient picked up the medication and put two drops in each eye as prescribed. The redness and pain worsened at which point she called another ophthalmologist who saw her the next morning. The second ophthalmologist told the patient she had a very bad infection and had been prescribed the wrong drops. She was given a new prescription to start immediately and told to call back if there was any increase in her symptoms. The patient tried the new drops and was instantly relieved of the pain and redness.
According to the insured’s medical records, the patient called his office to report that she had lost the eye drops and needed a refill on the prescription. During the conversation with the office technician, the patient reported that the pain and redness had decreased since the previous day and that the drops appeared to be working “but not very fast.” The technician contacted the ophthalmologist who called in the prescription to the pharmacy himself. The technician then called the patient back to tell her to pick up the prescription and to call the office if her eye did not improve.
Analysis
Often, when a patient relates the facts of a case to an attorney, there is a significant variance from the actual facts. The patient may well believe his or her own rendition of the facts and may relay them very convincingly to the plaintiff attorney. Following the initial meeting with the patient, the plaintiff attorney generally will turn to the medical record for additional facts. A medical expert may be called in to review the records after which the plaintiff attorney will determine if the case has enough merit to pursue liti-gation. In this case, the plaintiff attorney skipped the review by the medical expert and sent a scathing letter to the insured alleging: (1) Negligence by the insured for failure to diagnose and correctly treat an eye infection; and (2) Practicing medicine without a license by his secretary for prescribing medication.
During discussions with the insured and a review of the medical record, it became clear to the OMIC claims staff that there were discrepancies in the plaintiff’s presentation of the facts. First, the record showed that the patient had been diagnosed with blepharitis and was on medication that was improving the condition. (The subsequent treating physician also diagnosed blepharitis and prescribed the same medication!) Second, it was the ophthalmologist who called in the prescription to the pharmacy, not the technician. A phone call from the OMIC claims staff to the plaintiff attorney to point out that neither of the plaintiff’s contentions could be sustained by the medical record was sufficient to dissuade the attorney from continuing litigation.
Risk Management Principles
Melvin Belli, the notorious San Francisco plaintiff’s attorney, once said, “In the eyes of the law, the best doctor in the world is only as good as his worst employee.” In this case, the staff was exceptional in handling the patient and documenting what occurred in the record. Would your staff have documented this situation as well? Here are some tips for handling patient phone calls.
Office staff should have clear guidelines for handling phone calls from patients. These guidelines should include telephone triage instructions such as those suggested by the American Academy of Ophthalmology’s Allied Health Audio Education program (call the Academy to order, 415-561-8540).
If you are away from the office, make sure staff refers all medical questions from patients to the doctor who is covering for you. Leave instructions on how staff should deal with inquiries about prescription refills and other routine matters.
Failure to Diagnose Giant Cell Arteritis (1999)
By Stacey Meyer, OMIC Claims/Litigation Associate, Digest, Spring 1999
ALLEGATION: Failure to diagnose giant cell arteritis in a timely manner.
DISPOSITION: Insured was the only defendant of five to receive a defense verdict at trial.
Case Summary
A 71-year-old male presented to the insured with a history of significant and long-standing vision loss in the left eye due to cataracts and a prior inflammatory process. Visual acuity was count fingers in the left eye and 20/25 in the right eye. The patient gave a history of arthritis, thus the insured checked for symptoms of giant cell arteritis and found none, although this was not documented in the chart. Upon further questioning, it was determined that the patient did have a prior history of iritis. An elevated choroidal lesion was noted in the right eye, suggesting possibly a primary choroidal melanoma or metastatic lesion to the eye. The insured recommended a B-scan and referred the patient to an internist with a subspecialty in oncology. An appointment was made with the internist for the following day, but the patient failed to keep the appointment and did not return to the insured.
A month later, the patient was admitted to the hospital for a psychiatric evaluation and diagnosed with delusional paranoid schizophrenia. Two weeks after the patient’s admission to the hospital, an ophthalmic consult was obtained. The diagnosis was bilateral blindness due to prior retinal detachments. The patient returned to the insured one week after being discharged from the hospital with NLP bilaterally. The insured noted that the optic nerves were pale bilaterally and ordered a sedimentation rate. She referred the patient to a rheumatologist who confirmed the diagnosis of giant cell arteritis by temporal biopsy. The patient eventually lost complete sight in both eyes and sued the insured ophthalmologist, the hospital, the admitting psychiatrist and internist, and the ophthalmologist who saw the patient in the hospital.
Analysis
The central issue in this case was whether the insured should have made the diagnosis of arteritis earlier. Defense experts opined that the insured could not have diagnosed giant cell arteritis at the time of the patient’s first office visit because of the lack of clinical findings. The optic nerve appeared normal at the time and no vascular abnormalities were present in either eye to suggest vasculitis. Additionally, there was nothing in the patient’s history to suggest a diagnosis of giant cell arteritis. Furthermore, the defense argued, the patient’s own failure to follow-up with the referrals made by the insured contributed to the delay in diagnosis.
The plaintiff’s experts as well as the codefendants’ experts argued that there was evidence of arteritis at the time of the patient’s first office visit and that had the insured ordered a sedimentation rate at that visit, the patient’s visual loss could have been prevented.
Risk Management Principles
This was a complex case with potentially high damages, and as often occurs when more than one defendant is involved, finger pointing became common during the trial. Unfortunately, when defendants fight among themselves and otherwise behave unprofessionally, jurors tend to believe that all the defendants are liable.
During the trial, while each of the other four codefendants criticized the OMIC insured and each other, the insured refused to cast blame and continued to focus on her own treatment of the patient in her testimony. Even when she had the opportunity to criticize the patient for not following her recommendations and referrals, the insured defended the patient’s right to refuse further testing and follow-up treatment. But in doing so, she said, the patient forfeited his right to blame the physician for a resulting delay in diagnosis.
It was this steadfast refusal to blame others and to pursue the case on the merits of whether there was in fact a breach in the standard of care that resulted in the insured being the only one of the five codefendants to be given a defense verdict. The other four codefendants, as well as the plaintiff, were assessed a portion of liability in the final judgment.
Failure to Diagnose Bilateral Acanthamoeba Keratitis
By Randy Morris, JD
OMIC Claims/Litigation Associate
Digest, Summer 1999
ALLEGATION Failure to diagnose acanthamoeba keratitis in a timely manner.
DISPOSITION Defense verdict at trial.
Case Summary
A 35-year-old woman was seen by the insured ophthalmologist on an emergency referral from an optometrist. The patient had been in a car accident and reported that her contact lenses had broken in both eyes and were causing her irritation and pain. The optometrist had placed the patient on Vira-A ointment, Viroptic, and Tobrex. The insured diagnosed bilateral keratitis, discontinued the Viroptic and Tobrex, and started the patient Blephamide ointment.
The patient returned two days later and was seen by another optometrist in the insured’s office. The optometrist diagnosed bilateral keratitis with unknown etiology and asked the insured to confirm the diagnosis. The insured confirmed the diagnosis and continued the Blephamide. The patient returned three days later with diffuse keratitis in the right eye as noted by the optometrist. The insured instructed the optometrist to dilate OU with Hyoscine and patch the right eye with Maxitrol ointment. The patient was to continue using Blephamide in the left eye.
The patient returned the next day complaining that her right eye was very painful and that she was having difficulty driving. The optometrist spoke with the insured’s partner about taking a culture, but the partner did not feel it was appropriate and recommended that all medications be stopped. Two days later, the insured’s partner saw the patient and diagnosed bilateral keratitis deteriorating in spite of treatment. He referred the patient to a nearby university, where specialists diagnosed bilateral acanthamoeba keratitis. The patient eventually underwent two corneal transplants and a cataract operation.
Analysis
Defense experts argued that acanthamoeba keratitis is a very difficult diagnosis to make and can often masquerade as another type of infection. Most cases are not diagnosed for several months so they felt the minimal delay in this case was acceptable. They pointed out that the insured attempted several treatment approaches and, when there was no improvement, appropriately referred the patient to specialists.
The plaintiff’s expert countered that steroids are contraindicated in the absence of a specific diagnosis and that the insured should have cultured the eye sooner. The defense was able to call into question the credibility of this expert because he had never been involved in the study of acanthamoeba nor was he familiar with the disease process.
Risk Management Principles
This case was well positioned for trial with excellent defense experts, relatively low damages, and a 70 percent probability of prevailing, but there remained a potentially significant complication. The insured was quite emotional about being the target of a lawsuit and defense counsel was concerned that he might appear uncomfortable and nervous in front of the jury. To make matters worse, the plaintiff was an attractive likable woman who could easily win the jury’s sympathy.
OMIC assigned a skilled witness preparation coach, who worked with counsel to help the insured rein in his emotions at trial and come across as a competent physician. When the insured took the stand, he appeared patient and was able to explain the situation to the jury in layman’s terms. The jury understood what the insured said and believed in his ability as a physician. In the end, the jury delivered a verdict in his favor.
While being the defendant in a medical malpractice lawsuit is never a pleasant experience, this case illustrates the importance of not letting the emotional stress of the situation impact the defense of the case. It is important to remember that a physician’s demeanor and appearance often are the factors that “make or break” a case in the eyes of the jury. Patience, reason, and dedication to the defense of one’s care are not simply helpful platitudes. They are absolute necessities to a successful outcome in a medical malpractice action.
Failure to Obtain Informed Consent for Vitrectomy
By Delphine Cherewick, JD
OMIC Claims Associate
Digest, Fall 1999
ALLEGATION Failure to obtain informed consent for vitrectomy, negligent surgery resulting in endophthalmitis, and negligent postop care.
DISPOSITION Defense verdict a t trial on behalf of insured.
Case Summary
The patient was a 43-year-old woman who had been experiencing flashers and floaters for several months. She consulted a retinal specialist who injected steroids, and although her visual acuity remained good, the floaters continued to progress. For this reason, she sought a second opinion from the insured.
On the initial visit, there was no iris neovascularization in either eye. The fundus examination of the left eye showed 2+ vitreous cells and a very prominent posterior vitreous detachment (PVD). The insured diagnosed uveitis and PVD of the left eye and offered the patient the option of an elective vitrectomy. The insured explained that there could be serious complications associated with a vitrectomy, including the development of cataracts, infection, retinal detachments or hemorrhage, but he did not specifically mention loss of vision and he did not document this conversation in the medical record. The only consent form signed by the patient was a general hospital surgical consent.
The procedure was performed by the insured without apparent complication, and Vancomycin and Aristocort were injected subconjunctivally. The following day, the insured noted mild ptosis, redness, and edema of the eyelid. The patient complained of occasional sharp pains to her left eye. Later that night, the patient began to experience dull aching pain in her left eye and by morning she had greatly diminished visual acuity in her left eye. She was immediately seen by the insured and hospitalized for probable bacterial infection. The insured performed a vitrectomy wash out and injected appropriate antibiotics. Cultures grew out coagulase negative staphylococcus, and despite the insured’s treatment, the patient’s vision continued to decrease. Vision loss progressed to no light perception and the patient was ultimately informed that she would likely require an enucleation.
Analysis
Postoperative infection leading to endophthalmitis is a concern in any surgery involving the eye. It happens to the best of surgeons in the most optimum of circumstances, often with devastating results. Until recently, endophthalmitis cases were extremely difficult to defend because the injury was usually severe and the experts could be counted on to disagree on the administration of antibiotics specifically and postoperative care generally. Presented with conflicting and confusing medical facts, juries generally sided with plaintiffs who had clear evidence of injuries.
This case, on the other hand, benefited from an evolving medical-legal approach to endophthalmitis cases that has been increasingly successful in the courtroom. Citing findings from the 1994 Endophthalmitis Vitrectomy Study commissioned by the National Eye Institute, defense experts were able to support the insured’s course of treatment and show the jury how and why certain approaches to infection are used. This defense tactic also had the effect of discrediting plaintiff experts if they disagreed with the “established” experts who conducted the study.
Risk Management Principles
The most troublesome aspect of this case was the lack of informed consent documentation. It is important to document informed consent in any surgery, but it is imperative in an elective surgery. The decision to have surgery is not as clear cut when it is elective and it is easier for the plaintiff attorney to argue that the plaintiff would not have had the surgery had he or she known of all the risks.
In this case, the insured failed to document his conversation with the patient because of two very common occurrences in the medical office environment: a hectic schedule that does not allow sufficient time for accurate documentation, and complacency with repetitious documentation, such as the risks of surgery. Fortunately, the patient had signed a hospital consent form. This enabled the defense attorney to successfully argue that based on the insured’s usual and customary practice, it was more likely than not that he had instructed the patient on the risks of the procedure.
Unnecessary Surgery for Pterygia
By Mary Kasher, MSN, JD
OMIC Claims Manager
Digest, Winter 2000
ALLEGATION Unnecessary pterygium surgery and lack of informed consent.
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.
