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.
Two Cases of Entity Liabiilty
By Ryan Bucsi, OMIC Senior Litigation Analyst, Digest, Spring 2011
CASE 1
ALLEGATION: Post cataract surgery endophthalmitis due to unsterilized surgical instruments.
DISPOSITION: Case settled for $650,000.
CASE 2
ALLEGATION: Failure to assist an elderly patient resulting in a fall and femur fracture.
DISPOSITION: Case settled for $235,000.
Case 1 Summary
An OMIC insured performed an uncomplicated cataract surgery on a patient’s left eye. At the completion of surgery, one of the support staff present in the operating room noticed that the instrument tray chemical indicator was white and had not turned dark brown as it should at the completion of the autoclave sterilization process. The patient was not immediately informed of this problem as the consensus was that, while the instruments had not been autoclaved, they had been washed and cleaned and were likely not contaminated. Further, antibiotics had already been prescribed. At the postoperative day one examination, no signs of infection were present, and the sterilization error was explained to the patient. Three days later, during the second postoperative exam, the patient presented with complaints of sudden vision loss and pain OS. Endophthalmitis was diagnosed. A culture revealed the presence of pseudomonas aeruginosa, as did the instruments when they were cleaned in the ultrasonic bath unit without being autoclaved. Despite treatment of the infection with vitrectomy and intraocular antibiotic injections, the patient’s vision OS remained light perception only.
Analysis
Defense experts felt the entity’s liability was certain as there had been departures from standard medical practice, nursing practice, and internal protocols. A processing technician left a washed, non-sterilized tray of instruments in the autoclave room on a table next to the unit when the tray should have been placed on a cart marked non-sterilized. In the operating room, none of the three OR nurses verified that the indicator on the instrument tray had changed color before setting up the instruments for surgery. As a result of these errors, a $650,000 settlement was negotiated at mediation on behalf of the OMIC insured group.
Risk Management Principles
Patients have a right to know when an error has been made. In this case, the patient should have been immediately informed that the instruments used in her surgery may not have been properly sterilized. Immediate disclosure of such information is beneficial to both the patient and the health care provider and maintains trust between them. Advising a patient of complications that might occur and what symptoms to report can lead to earlier, vision-preserving treatment. As a result of this incident, the insured entity developed a protocol to assure that only surgical items that have been appropriately sterilized are used during surgery. One of the nurses in the operating room is now required to show the surgeon the tray of instruments to verify that the chemical indicator has indeed changed color, thus confirming appropriate sterilization.
Case 2 Summary
An elderly patient with macular degeneration was in an examination room with an ophthalmic technician following administration of dilating drops. The technician asked the patient to move from one chair to another. The second chair was on wheels and when the patient placed her weight on it, the chair slid out from under her and she fell. The patient fractured her femur and required surgery with extensive rehabilitation in a skilled nursing facility. She claimed over $100,000 in medical bills related to the injury.
Analysis
Liability was evident as ophthalmic treatment, via administration of dilation drops, and lack of patient supervision contributed to the fall. Defense experts criticized the technician, who, in supervising the patient, did not assess the need for assistance, offer assistance, or immobilize the chair for an elderly patient with impaired vision. The insured entity did facilitate the patient’s transfer to the hospital for care and was conscientious in immediately reporting the matter to the OMIC claims department. As a result, a suit was not filed and a settlement of $235,000 was directly negotiated with the patient’s attorney.
Risk Management Principles
Observing patients in the waiting room may help identify those who will need assistance maneuvering around the office. Caution should be exercised with elderly patients who have existing visual impairments. Assistance should be provided if it is necessary for an impaired patient to move around the exam room or to another location in the office. At the conclusion of the exam, the patient should be assisted in returning to the waiting room and to the supervision of the family member or caregiver responsible for the patient’s transport home.
Patient’s Finances Alters Evaluation and Treatment of Penetrating Globe Injury
By Ryan Bucsi, OMIC Senior Litigation Analyst, Digest, Winter 2010
ALLEGATION: Failure to diagnose intraocular foreign body.
DISPOSITION: Case settled for $210,000.
Case Summary
An uninsured illegal immigrant was examined by the insured ophthalmologist after a nail struck his right eye while hammering. Visual acuity on presentation was 20/50 OD. The insured diagnosed hyphema and a full thickness corneal laceration with a selfsealing wound. An undocumented slit lamp examination “ruled out” the presence of a foreign body. The insured patched the patient’s right eye, prescribed Ciloxan, and asked the patient to return the following day. The next day, the patient’s visual acuity was 20/40 OD with a negative Siedel Test demonstrating no wound leakage. A hyphema and a small selfsealing corneal wound were present. A dilated fundus exam was not performed, so the retina was not visualized. The impression was a corneal scleral laceration with slightly improved vision with no mention of a foreign body. The patient was told to return in four days.
The following day, the patient self-referred to another ophthalmologist with hand motion vision OD and complaints of sharp throbbing pain in the injured eye. The patient was diagnosed with a traumatic vitreous hemorrhage OD, resolving hyphema OD, and a partial thickness corneal laceration OD. An exam during an emergency retinal consult revealed a reflective foreign object in the vitreous space. A CT scan done at the local charity hospital confirmed an intraocular foreign body. Residents there performed lensectomy, vitrectomy, anterior chamber membrane removal, attempted foreign body removal, and administered an intraocular antibiotic for endophthalmitis. During surgery, the foreign body slipped into the membrane temporally and could not be located. Two days later, a pars plana vitrectomy with membrane peeling, retinectomy, and foreign body removal was done. One week later, the patient had an enucleation for uncontrolled endophthalmitis.
Analysis
Experts for both the defense and plaintiff agreed that the insured did not meet the standard of care. Specifically, the experts opined that the insured should have ordered an x-ray or CT scan of the right orbit to rule out the presence of a foreign body. The slit lamp exam that the insured said he performed but did not document was inadequate to rule out the presence of an intraocular foreign body. The experts believed that an immediate referral to a retinal surgeon was warranted. Regarding a potential causation defense, there was a question as to whether the injury may have been serious enough from the outset to require an enucleation. Defense counsel and our experts believed it would be extremely difficult to rebut the fact that the failure to locate the foreign body led to the infection and the eventual enucleation OD. There was also an issue regarding the surgeries performed by the residents at the local charity hospital. Some of the experts were critical of the technique used during these two surgeries. However, defense counsel and experts agreed that any potential criticism of the residents probably would not hold up in light of the severity of the endophthalmitis at the time of the first surgery.
Risk Management Principles
The insured explained that because of the patient’s limited financial resources, he hoped to minimize the cost to the patient by monitoring the situation instead of ordering expensive diagnostic tests. The insured felt justified in doing this because the patient had “good visual acuity and an intact ocular structure.” Due to the nature of the injury, however, the insured’s focus should have been on ruling out the presence of a foreign body. A simple x-ray could have accomplished this at much lower cost than CT imaging. Unfortunately, the patient’s illegal residency status and inability to pay allowed the insured to lose sight of what was best for the patient and altered his diagnostic workup. As a result, tests that would have led to an earlier and more definitive diagnosis were not ordered. Alternately, the insured could have made an immediate referral to the local charity hospital, where evaluation and treatment would have been provided at reduced or no cost to the patient.
Anatomy of a Claim
By Marilys Fernandez, RN, Esq., Digest, Winter, 1991
Medical malpractice claims are expensive, time consuming and emotionally trying for the physician involved. They often call into question not only the physician’s medical skill but his or her integrity as well. It is at this point when the physician may be feeling angry, confused and most in need of support that the benefits of a physician-sponsored company such as OMIC are most apparent.
Streamlining the Claims Process
The claims management system of the Ophthalmic Mutual Insurance Company (OMIC) typically cuts through the red tape and streamlines what could otherwise be a frustrating and stressful adversarial process. The result is a more responsive, personalized system designed not just to provide competent legal defense, but to reduce the anxiety and alienation that accompany a malpractice action. Realizing that open communication with the insured is a key element in successfully managing a case, the claims staff strives to keep the policyholder involved and informed frequently throughout the entire claims process.
The claims management philosophy is consistent with the origin and purpose of OMIC’s creation – to provide long-term insurance stability and personal attention to insured members of the Academy in an unstable medical-legal environment. OMIC is the only professional liability insurer exclusively for ophthalmologists and the only one sponsored by the American Academy of Ophthalmology for its members. OMIC’s Board of Directors are all practicing ophthalmologists and members of the Academy.
Reporting a Claim
The action taken when a physician first learns of an untoward medical event can be a critical factor in avoiding, reducing exposure or successfully defending a claim. An OMIC insured should immediately report a claim or potential claim by calling a toll-free OMIC number: 1-800-562-6642. The ophthalmologist will be asked to give a brief description of the incident to the claims staff who will then explain the claims process and provide further instructions on how to proceed.
Once insurance coverage is confirmed and a formal claims file is created, the physician is typically next asked to forward a copy of the patient’s medical records and any other information regarding care and treatment of the patient. Instructions will be given at that time with respect to patient confidentiality and the appropriate release of records. The claims manager may conduct a detailed interview over the telephone or, in some instances, assign the case to a local adjuster to set up a personal meeting with the insured.
It may be necessary for the claims manager to communicate directly with the claimant or claimant’s attorney to request additional information regarding the nature of the injury and damages allegedly sustained by the claimant. This may include supplementary medical records, x-rays or reports from other physicians who subsequently treated the patient.
Physician Reviewers
After the initial claims investigation, an ophthalmologist from the OMIC Claims Committee reviews and evaluates all the records. This reviewer attempts to provide an objective review of the strengths and weaknesses of the medical care rendered. OMIC reviewers, who like all OMIC insureds are members of the American Academy of Ophthalmology, represent various ophthalmic subspecialties and are assigned to cases that closely match their own expertise.
To Settle or Not to Settle
Once the investigation is completed, OMIC evaluates the claim, confers with the insured and makes a preliminary determination on how to proceed. If in the Company’s assessment of liability, the case appears defensible, the claim will be denied. If, on the other hand, it is believed that the insured is likely to be found liable, settling the case out of court may be recommended. However, consent from the insured is required before any claim is settled, pursuant to the terms of the OMIC insurance policy.
OMIC’s philosophy is to vigorously defend cases in which the insured has rendered appropriate care. Nuisance or so-called economic settlements only encourage frivolous litigation. On the other hand, if it is in the best interest of the insured to settle and the insured agrees, a prompt settlement will be attempted. However, since facts develop as a case proceeds, settlement of a case can occur anytime during the litigation or pre-litigation process: during the discovery phase, prior to trial, during trial or after trial.
Selection of Defense Counsel
Oftentimes, the first notice of a claim is the filing of a lawsuit by the plaintiff and the service of a Summons and Complaint on the physician. When this happens, the Company will retain counsel to render a defense on behalf of the OMIC insured. Counsel is chosen from a pre-approved list of attorneys with particular expertise in defending medical malpractice ophthalmology cases. This special panel of defense attorneys is likewise committed to aggressively defending all malpractice actions which the company believes could be resolved in the physician’s favor.
OMIC is also committed to the principle that the defense counsel’s client is the insured ophthalmologist and not the insurance company. Accordingly, defense counsel is expected to act responsibly and in the best interest of the insured physician. This includes keeping the insured involved in all aspects of the litigation, significant case developments and expert selection. The appointed attorney conducts all meaningful discovery, confers with the Company and the insured on defense strategy, and ultimately defends the case for those claims which proceed to litigation.
The Company takes great care when advising a physician about the ramifications of any settlement. Due to the reporting requirements of the National Practitioner Data Bank (NPDB), the claims manager reviews any report on claims payment with the physician before filing it with the NPDB.
After Claims Closure
The claims department’s job is not finished once a claim or lawsuit is brought to a final resolution. Data gathered from each claim is codified so information may be compiled on claim frequency and practice errors as they apply to ophthalmologists. This information is used by OMIC in its loss prevention efforts and risk management services.
The effective resolution of a claim can only be achieved by frequent communication between the policyholder, the claims manager and the attorney. In the spirit of this philosophy, OMIC will continually work to evaluate and improve the claims management process so that it remains responsive to the evolving needs of OMIC-insured ophthalmologists and members of the Academy.
Motion for Summary Judgment
OMIC Digest, Summer, 1991
ALLEGATION: Insured ophthalmologist allegedly breached the standard of care in treating a patient later diagnosed with maxillary sinus carcinoma.
DISPOSITION: Dismissed.
Background
Just as a disappointing medical outcome does not necessarily indicate physician malpractice, the filing of a lawsuit against a physician does not always mean years of litigation and court proceedings. The burden of proof still rests with the plaintiff to prove that there was a breach in the standard of care. There are times when defense counsel can have the matter dismissed by filing a Motion for Summary Judgment.
A Motion for Summary Judgment is a device designed to obtain a disposition of a case on its merits without resorting to a long trial. In American jurisprudence, the jury is responsible for weighing the facts and the judge is responsible for deciding the legal issues. In essence, the Motion states that there are no issues of fact for a jury to decide and that only questions of law are involved, allowing the judge the latitude to make an independent decision.
OMIC has been successful in having a number of lawsuits dismissed against insured physicians by securing a Summary Judgment.
Case Summary
The plaintiff was a 66-year-old woman with a history of heart disease and sinusitis. She was referred to the insured ophthalmologist by her family practitioner for evaluation of headaches and numbness around the right cheek. Examination revealed a definite impairment of sensation on the right side probably secondary to previous sinus disease. The left eye, however, had a pterygium which was excised. The patient failed to return for follow-up and never returned to the insured’s care. Instead, she saw an ENT specialist who cleaned her left ear and prescribed medication. Five months after the pterygium excision, she saw an otolaryngologist who ordered a CT scan which revealed maxillary sinus carcinoma. Surgery was performed to remove the right eye and part of the jaw and roof of the mouth.
The plaintiff filed suit against the ophthalmologist, the family practitioner and the ENT specialist.
Outcome
OMIC filed a Motion for Summary Judgment accompanied by affidavits from experts setting forth the standard of care for the ophthalmological treatment of plaintiff’s medical condition, defendant’s compliance therewith and plaintiff’s alleged damages. In addition, the Motion argued that the plaintiff had failed to submit any expert testimony suggesting that the insured breached the standard of care or to raise any fact issues against the insured.
The court granted the Motion and ruled that the defendant ophthalmologist was entitled to judgment as a matter of law. The plaintiff elected not to appeal the ruling and the case against the OMIC insured was dismissed.
Risk Management Principles and Commentary
Instrumental in obtaining a dismissal was the patient’s chart which documented that the patient told the insured she was being followed by another physician for her sinusitis. This was critical in establishing that the OMIC insured acted within the standard of care and eliminated any issue of fact that he should have referred the patient to an ENT specialist. In addition, the insured charted the failure of the patient to return for a follow-up visit which also provided support for the granting of the Motion for Summary Judgment. The rules for Summary Proceedings to dispose of cases prior to trial vary from jurisdiction to jurisdiction. In most cases, a Motion for Summary Judgment is not a viable option for the defense because the parties do not agree on the factual situation. However, in those instances where the issues of fact have been determined and the evidence supports the defendant-physician’s care, a Motion for Summary Judgment can dispose of a case and conclude the matter once and for all.
