Risk Management

Impairment from Alcohol and Cocaine Impacts Defense of Delayed Diagnosis Claim

By Ryan Bucsi, OMIC Senior Litigation Analyst, Digest, Spring 2010

ALLEGATION: Delay in diagnosing and treating retinal detachment.

DISPOSITION: Case was settled on behalf of the insured for $225,000.

Case Summary

The patient was a 60-year-old retired male who had been seeing the insured since 1993 for annual ophthalmic checkups. He had a history of droopy eyelids and in April 2001 presented to the insured complaining that his eye felt “funny” like his “lid was blocking his vision.” Visual acuity was 20/30 OD and 20/20 OS. The insured noted 4+ dermatochalasis OU and a restricted upward gaze in the right eye that had been “long standing.” A dilated exam with an ophthalmoscope and indirect ophthalmoscope revealed attached retinas. The insured discussed the option of performing a bilateral ptosis repair in an attempt to raise the eyelids.

The patient returned four months later in August for a preoperative workup with taped and untaped visual fields and photographs. Visual fields were the same taped and untaped; however, visual acuity had dropped significantly since April to 20/200 OD. The patient was not examined by the insured ophthalmologist at this visit, and the technician did not inform the insured of the change in visual acuity.

In October, the patient came to the office to sign consent forms for ptosis repair of his upper lids. The insured signed the chart that day but did not examine the patient or review the visual acuity results from August. Three days later, the insured performed bilateral ptosis repair without incident. During the one week postop visit, a visual acuity test was done and the insured noted VA was 20/200 OD. He checked the patient’s records and saw that VA was 20/200 OD back in August. The insured immediately referred the patient to a retinal specialist, who diagnosed a retinal detachment OD and performed scleral buckle surgery with cryo treatment and air/ fluid exchange to repair it. Over the next seven months, the patient underwent six more retinal surgeries. His final best visual acuity was 20/200 OD with a contact lens. He also had difficulty seeing peripherally and from the right side. The insured was served with a lawsuit in October 2003 for failure to timely diagnose and treat a retinal detachment.

Analysis

Unknown to either defense counsel or OMIC, the insured had been struggling with alcohol and drug problems for several years, and was voluntarily participating in an anonymous statesponsored recovery and monitoring program prior to and during the time he was treating this patient. Unfortunately, he was unable to stay drug free and, one month after litigation was initiated, his license to practice medicine was suspended for failure to comply with the voluntary recovery program. The insured never informed OMIC or his defense counsel of his license suspension. He then signed and filed a sworn statement that the injury alleged in the plaintiff’s complaint was not caused by the care rendered, even though it was required to be signed by a licensed physician. When the licensure problem was discovered, the plaintiff’s attorney filed to dismiss the defendant’s answer to the complaint because the insured’s statement had not been signed by a licensed physician. If the court granted the dismissal, as seemed likely, the only issue left would be how much money to award the plaintiff. With the insured’s consent, the case was settled for $225,000.

Risk Management Principles

Initial review of this case raised concerns around staff supervision and preoperative evaluation. Prior to scheduling surgery, had the ophthalmologist reviewed all chart entries made by staff and asked the patient about changes to his medical or ocular history since the last exam, he might have been prompted to explore other causes for the patient’s decreased vision.

However, the focus of the defense quickly shifted to the insured’s substance abuse problems when they came to light. The insured is to be commended for seeking help for his addictions. It is widely understood that drug addiction and alcoholism are medical/psychological illnesses that can be ameliorated by treatment. Provided the guidelines of a recovery and monitoring program are followed, a physician’s license to practice medicine is not affected. However, by not informing OMIC of his participation in the program or his subsequent license suspension, the insured weakened his defense and potentially put his professional liability coverage at risk. See Policy Issues for guidelines on why and when to contact OMIC with competency related issues and how to preserve your coverage.