Failure to diagnose a RD by a comprehensive ophthalmologist
RYAN M BUCSI, OMIC Claims Manager
A 57-year-old corrections officer presented to an OMIC insured comprehensive ophthalmologist on referral from the emergency department. The patient reported a fall at work where he struck the left side of his head, face, and hip. He explained that his vision became blurred after the fall. His vision was 20/40 OU with bilateral cataracts. The IOP OS was 9, which was low compared to the IOP OD. The insured referred the patient back to his primary care physician. One month later, the patient returned to the insured’s office and the insured noted a decrease in visual acuity to 20/125 OS; the IOP was still 9. The insured attributed the worsening vision to progressive cataracts OS>OD and referred the patient to a colleague for surgery, which was performed two months later. On postoperative day 3, the patient’s vision had further decreased to 20/150 OS. The insured diagnosed a retinal detachment and emergently referred the patient to a retina specialist. The following day, the retinal specialist performed a pars plana vitrectomy with laser to reattach the retina. Subsequently, the patient had two recurrent retinal detachments with scar tissue requiring two additional surgeries, a gas bubble injection and the placement of silicone oil. The retina specialist noted that any return of vision OS was unlikely. The patient’s final visual acuity was HM.
Analysis
Plaintiff expert’s theory was that the patient suffered a traumatic tear of a portion of his retina OS as a result of the fall and that the initial OMIC insured failed to diagnose this detachment despite it becoming progressively more severe during the time he saw the patient. As a result of this delay in diagnosis, the ability to re-attach the retina, once the detachment was diagnosed, was significantly lessened and was a substantial factor in bringing about the permanent loss of sight OS. The plaintiff experts were critical of the first OMIC insured since the patient associated the blurry vision OS with the fall from the moment it happened; the discrepancy in IOP between the right and left eyes with the left eye pressure being much lower after the fall than for the many years preceding it; the worsening visual acuity during the first month after the traumatic incident as further evidence of continued retinal detachment; and a rather superficial initial examination and lack of a dilated and funduscopic examination. Unfortunately, our defense experts agreed with plaintiff expert’s opinions on this case. Our experts believed that the second insured (the cataract surgeon) could also potentially be criticized for not performing a dilated examination prior to the performance of the cataract surgery. The plaintiff’s case was strengthened when the retina specialist testified at his deposition that the patient suffered a traumatically induced retinal detachment as a result of the fall. The retina surgeon declared that the detachment progressively worsened over the next few months. Due to the retina specialist’s impartial position in the case and his firm statements, he became the best expert for the plaintiff. Defense counsel estimated the likelihood of a plaintiff verdict at 80%. As a result, mediation was scheduled and the case settled for $475,000 on behalf of the fist insured, as he essentially took the blame for the substandard care, thus prompting plaintiff to dismiss the second insured and the group.
Risk management principles
The first insured performed only a cursory examination. He did not appear to take the recent fall into account when evaluating the vision loss. The diagnosis of cataracts could potentially explain the blurry vision, but the reason for the asymmetrical lower IOP was not explored. According to all experts in this case, the sudden vision loss and asymmetrical IOPS should have set off alarm bells. However, the insured did not appreciate or explore other explanations for the visual complaints once he diagnosed bilateral cataracts. Furthermore, the insured did not perform a dilated examination, which was indicated based on the patient’s presenting complaints and recent history of trauma. Had this been done it is more than likely that the insured would have discovered a retinal detachment, which would have increased the odds of all or some vision being saved OS. In addition, the lack of a dilated exam prior to cataract surgery represents another missed opportunity to have diagnosed the retinal detachment.
Telephone consultation on minor patient with foreign body injury
RYAN BUCSI, OMIC Senior Litigation Analyst
Allegation
Failure to evaluate and treat a minor patient with a foreign body injury.
Disposition
Defense verdict at high-low arbitration. $175,000 paid on behalf of insured.
A minor patient sustained an eye injury when a metal fragment struck him while he was hammering a penny. The parents flushed his eye with water. The following day his pediatrician diagnosed decreased vision and a conjunctival hemorrhage. The pediatrician called the OMIC insured after hours and informed the insured that she did not see any signs consistent with a penetrating injury. The pediatrician stated that the cornea was intact with no abrasion and that the anterior chamber appeared intact as well. The insured specifically asked if this was a high-speed impact injury and the pediatrician responded that it was not. Our insured advised that he could not make a diagnosis over the phone but he suspected a possible conjunctival hemorrhage or an abrasion. The insured recommended antibiotics and follow-up with
the pediatrician or the emergency room if the condition did not improve. The insured informed the pediatrician that he was on call at the local children’s hospital emergency room and could see the patient that evening. The pediatrician did not ask the insured to see the patient nor did she tell him that she would instruct the patient to go to the emergency room. Six days later, the pediatrician informed the insured via telephone that a general ophthalmologist had examined the patient and had diagnosed a foreign body in the eye, confirmed by orbital CT. The patient was referred to a retinal specialist, who immediately performed surgery to remove the foreign body. The patient later developed endophthalmitis and underwent a corneal transplant but ended up with only count fingers vision.
Analysis
Plaintiff’s experts alleged that the insured should have advised the pediatrician to send the patient to an emergency room for a CT scan or MRI to determine whether there was a foreign body in the eye. Plaintiff also alleged that the pediatrician violated the standard of care by not immediately sending the patient to the emergency room. During her deposition testimony, the pediatrician testified, consistent with her records, that the patient’s vision had been drastically affected. The ophthalmologist, however, contended that he was not informed of any drastic vision loss during the initial phone conversation. The defense expert felt that the insured’s care met the standard assuming that his version of the phone call with the pediatrician was accurate. However, if the expert assumed that the pediatrician’s version of the phone call was accurate, then the insured failed to meet the standard. Our defense expert believed that any penetration of the globe by a foreign object should be treated as an emergency situation and that the delay in diagnosis caused the patient to experience significant vision loss. This was a case involving significant loss of vision in a minor and the defense was not comfortable taking the case to trial. Therefore, binding high-low arbitration was agreed upon. The case was heard by an arbitrator with a plaintiff high of $750,000 and a defense low of $175,000. The arbitrator ruled in favor of the defense and OMIC paid $175,000 to the plaintiff. The pediatrician settled her portion of the case for an undisclosed amount.
Risk management principles
The insured admitted that to meet the standard of care an ophthalmologist must examine a child who has experienced a drastic visual decrease following trauma. The defense expert indicated that he routinely examines children with such injuries. The crux of this case then was whether the ophthalmologist was informed that a drastic visual decrease had occurred. The pediatrician documented that she told the insured that vision in the patient’s eye had been drastically affected.
Our insured did not recall being informed of this but had no documentation to support his position. Fortunately for our insured, his lack of documentation did not keep the arbitrator from ruling in his favor. The defense attorney filed a motion challenging the establishment of a physician/patient relationship when the only involvement was a phone call. As in other OMIC claims, the court ruled that this relationship is clearly established when a physician gives advice about a specific patient. The court did note that a relationship is probably not established if a colleague calls and asks general questions, such as how to manage trauma cases. In any event, when consultations on specific patients occur, the best course of action is to document the information presented and the advice given.
Acanthamoeba infection difficult to confirm
RYAN BUCSI, OMIC Senior Litigation Analyst
Allegation
Failure to diagnose and treat acanthamoeba infection resulting in enucleation.
Disposition
Settled on behalf of two OMIC-insured physicians and an insured entity for $70,000 each.
Summary
An OMIC-insured general ophthalmologist initially examined the patient for dendrite-appearing lesions on the left eye. The patient had been on Acyclovir and Viroptic, antiviral medications, for two weeks. Upon examination, the insured diagnosed antiviral toxicity with underlying stromal involvement. Lotemax, a steroid eye drop, was prescribed. The insured planned to taper the Viroptic. Upon examination, two days later, the lesion was unchanged. Five days later, the insured noted a raised area of the epithelium that had a dendritic pattern. The area did not stain, so he concluded that this was not an active dendrite. Three days later, the insured noted that the epithelium had broken down and that part of the epithelial surface was missing. The epithelial defect was 6 mm by 2.5 mm with a 1% hypopyon. The ophthalmologist obtained cultures and increased the frequency of the Lotemax and decreased the frequency of the Viroptic. Cultures revealed no white blood cells or organisms on the gram stain, no growth on the general culture, and no virus in the tissue biopsy. There were inadequate cells for antigen detection in the adenovirus and herpes simplex stains. Due to the progression of the patient’s condition, he referred her to an OMIC-insured corneal specialist and asked her to inform the specialist that he suspected acanthamoeba. The corneal specialist’s initial impression was a neurotrophic-appearing cornea with a 4 mm defect at the center of the cornea and some small peripheral defects, and Viroptic toxicity. Acyclovir was increased and Viroptic was discontinued. The patient was started on a low dose steroid and 50% serum tears. After the visit with the corneal specialist, the patient self-referred to a non-OMIC insured ophthalmologist, who diagnosed neurotrophic keratoconjunctivitis. The cultures he obtained were all negative. The patient returned to the insured corneal specialist, who noted a hypopyon and an 8 mm corneal defect. The insured referred the patient to a local university. Despite negative cultures, the ophthalmologist there decided to treat the patient empirically for acanthamoeba with Baquil and Brolene. He eventually performed a penetrating keratoplasty but the graft failed and the patient ended up with no light perception vision OS. The left eye ultimately became painful and the patient chose to have an enucleation.
Analysis
Plaintiff’s expert testified at deposition that he believed to a reasonable degree of medical certainty that the patient had acanthamoeba from the start. He criticized the OMIC insureds for not placing the patient on a “drug holiday” to determine the cause of her eye inflammation. He also criticized the culture method, arguing that the ophthalmologist needed to perform a scraping and plating of the specimen on media that was more likely to grow acanthamoeba. The expert testified that both the general ophthalmologist and corneal specialist should have seen the patient more frequently until her condition improved. Following the enucleation, OMIC’s defense counsel retained a pathologist to examine the specimen; however, they did not proceed with the examination out of concern that the review would confirm the presence of acanthamoeba. Plaintiff counsel did move forward with a pathology expert, and just as defense counsel feared, the pathologist identified acanthamoeba on the slides. The defense’s own pathology expert then confirmed the presence of acanthamoeba. Prior to this development, OMIC spent $500,000 defending the insureds due to a strong belief that the case was defensible. This problematic development changed the defense team’s opinion and a settlement of $210,000 was negotiated on behalf of the general ophthalmologist and his group and the corneal specialist.
Risk management principles
This case illustrates how challenging it can be to correctly diagnose certain types of corneal infections. Cultures were obtained by each physician and all were negative. It was only after an enucleation that a pathologist determined the presence of acanthamoeba. The general ophthalmologist could not make a definitive diagnosis yet waited two weeks to refer the patient to a corneal specialist. The corneal specialist also struggled to pinpoint the cause of the patient’s condition but did not refer the patient to a specialist at the local university for two months. When a diagnosis cannot be reached and a patient continues to deteriorate, it is prudent to promptly refer the patient on to a specialist for further examination and testing. The plaintiff argued that if the referrals had been expedited, treatment could have started earlier and the eye might have been saved.
Second cataract surgery proceeds when CRVO goes undetected
RYAN BUCSI, OMIC Senior Litigation Analyst
Allegation
Negligent management of cataract patient resulting in bilateral blindness.
Disposition
Ophthalmologist was dismissed from case and a settlement of $930,600 was paid on behalf of the entity.
A 78-year-old patient presented to a young OMIC insured, who diagnosed bilateral cataracts. The patient paid in advance for the cataract surgeries with a credit card. The first surgery on the left eye was uncomplicated. Hours later, a staff member confirmed via telephone that the patient was doing well. On the postoperative day one examination, neither the patient nor the insured had any concerns. The patient was to return to clinic in one week, the day prior to surgery on the right eye. Although there was no written protocol, it was the insured’s understanding that patients who have eyes operated on one week apart are given a placeholder clinic appointment prior to the second eye surgery. The insured believed the patient was called the day before the second surgery and denied having any problems, so the appointment was cancelled. However, there was no documentation that such a call to the patient ever took place. The insured performed an uncomplicated cataract surgery on the right eye. On postoperative day one, the insured noted that vision in the left eye was virtually gone and diagnosed a central retinal vein occlusion (CRVO). A retina consult confirmed the diagnosis of CRVO and the left eye was injected with Avastin. One week later, the insured examined the patient, who complained of a rapid visual decrease in the right eye. Upon examining the right eye, the insured could actually see the retinal vein occlusion occurring. The insured immediately referred the patient back to the retina specialist, who confirmed the diagnosis of CRVO.
Analysis
The patient and his spouse testified during their depositions that they had reported reduced vision in the left eye to one or more of the intake persons at the surgery center. They were distressed that no one at the surgery center examined the left eye and contended that the surgery center, through its personnel and technicians, deviated from the standard of care by not communicating their complaints to the insured. If staff had relayed the complaint, the plaintiff argued that the insured would have examined the plaintiff’s left eye, diagnosed a developing CRVO, and cancelled the surgery on the right eye. The plaintiff’s argument gained credibility when the insured testified that, even though there was no protocol in place to do so, the patient was asked by multiple staff about the left eye, and had he been informed of any problem, he would have cancelled the surgery. Both the insured and surgery center staff testified that they were not informed of vision loss in the left eye. In order to rule in favor of the plaintiff, a jury would have to believe that an experienced staff failed to inquire about the left eye and pass on the patient’s complaint of visual loss to the ophthalmologist. However, this was a catastrophic injury that occurred in a notoriously plaintiff friendly venue where a jury was more likely to side with the sympathetic plaintiff’s story, so a settlement of $930,600 on behalf of the entity was negotiated.
Risk management principles
Only one postoperative examination occurred prior to proceeding with cataract surgery on the second eye. If another examination had taken place prior to the second surgery, it is possible that some vision loss may have been detected, thus leading to further exploration and cancellation of the second surgery. While the defense argued that the patient and his wife did not report any decrease in vision in the left eye, none of the surgery center employees documented that he was asked about his left eye or complained of decreased vision. The importance of documentation cannot be overstated. A lack of thorough documentation or no documentation negatively affects the defensibility of medical malpractice lawsuits. As mentioned earlier, the patient paid for the procedures using a credit card. After the poor result, the patient disputed the charges with the credit card company and refused to pay the bill. This was not brought to the insured’s attention and the billing department pressed forward with collection. This created even more ill will between the patient and the insured’s office and would have also made the surgery center look unsympathetic in front of a jury. Waiving a bill for services after a poor outcome is something that should be considered and discussed with our risk management or claims department. OMIC welcomes and encourages early reporting of poor outcomes prior to the initiation of litigation.
Poor communication between providers delays GCA diagnosis
RYAN BUCSI, OMIC Senior Litigation Analyst
Allegation
Failure to diagnose and treat giant cell arteritis.
Disposition
Settled for $50,000 on behalf of OMIC insured. Codefendants later settled for $500,000.
An 85-year-old patient with polymyalgia rheumatica (PMR) was being treated with steroids by her internist. He tapered her off the steroids when her symptoms were controlled but restarted the drug at a low dose two weeks later when she experienced a headache. Two weeks after that, the internist suspected giant cell arteritis (GCA) due to diplopia. He provided two referrals: one to our insured ophthalmologist to evaluate the diplopia, and the second to a neurologist to initiate and manage high-dose steroids. The referral slip noting the history of PMR and steroid treatment never reached the ophthalmologist. However, the ophthalmologist’s technician documented that the patient was on steroids. The insured obtained a history of chronic headaches and new onset of intermittent vertical diplopia. He found a large left hypotropia as well as moderate macular degeneration and recorded uncorrected visual acuities of 20/60 OD and 20/40 OS. The insured discussed the possible causes of diplopia with the patient and recommended that she follow up with her internist and see a neurologist. The patient saw a neurologist, who diagnosed GCA, increased her dose of steroids, recommended hospitalization—which she refused—and referred her back to the ophthalmologist. The patient was seen by our insured five days later (two weeks after the initial visit) and reported that earlier in the day she experienced dramatic vision loss and headache. VA was hand motion OD and 20/400 OS. A dilated examination revealed inferior retinal ischemia indicating central retina artery occlusion with acute optic neuritis. The insured concurred with the diagnosis of GCA. He explained to the patient that her vision was unlikely to improve and advised her to follow up with her internist and neurologist for steroid management. He asked her to return in two weeks but she did not. Eventually, the patient ended up with bilateral blindness and required 24-hour care.
Analysis
OMIC’s defense experts had mixed opinions about the insured’s care. One felt management at the initial visit was appropriate since no circulatory issues were identified during the dilated exam. Others felt our insured could be criticized for not reading the note about the patient’s steroid use and eliciting her history of PMR, which is strongly associated with GCA. He was also criticized for not considering GCA given the patient’s age, headache, and diplopia. Furthermore, our experts pointed out that the insured did not take a sedimentation rate, CBC, CRP, or platelet or fibrinogen levels, nor was there a recommendation that these be obtained by the internist or neurologist. Additionally, the insured did not recommend a temporal artery biopsy. Our experts’ major issue with the insured’s care was his failure to communicate to the patient, her family, and other doctors involved in her care the high risk for vision loss and need for emergent intervention. However, the experts felt the internist and neurologist had greater exposure than the ophthalmologist. Fortunately, plaintiff counsel agreed that our insured’s liability was limited and a settlement of $50,000 was negotiated. The internist and neurologist later settled for a total of $500,000.
Risk management principles
This case highlights the importance of communication with other healthcare providers. The ophthalmologist, internist, and neurologist did not effectively communicate with each other and did a substandard job of coordinating this patient’s care. Two of the three physicians suspected GCA before serious vision loss occurred but did not share this crucial information in a timely manner with the ophthalmologist. The internist did not provide our insured with an adequate history about the PMR and suspected GCA, which could have assisted the insured in reaching the correct diagnosis and increasing her steroid dosage to treat the GCA. The ophthalmologist, moreover, missed an opportunity to intervene earlier by not reading his technician’s note about Prednisone use, exploring the reason the patient was on it, and making the association between PMR and GCA. The ophthalmologist was in the best position to know the risk with regard to potential loss of vision and the urgency of increasing the steroid dosage and obtaining a temporal artery biopsy. Furthermore, our insured’s documentation was inadequate. When the records were reviewed, our expert could not understand what the insured’s thought process was and if he passed his thoughts and opinions on to the internist and neurologist.
