Failure to Prove Negligence in Treatment of Macular Degeneration

Digest, Spring, 1993

ALLEGATION  Insured ophthalmologist allegedly failed to properly assess and treat a subretinal bleed. In addition, there were allegations that the insured negligently performed laser surgery, and failed to warn patient of the potential risks and complications of surgery.

DISPOSITION  Charges were dismissed by the plaintiff during trial.

Background

To prevail in a medical malpractice suit, the plaintiff has the burden of proof of demonstrating the following four elements for a finding of negligence:

• That a physician-patient relationship existed (i.e., a legal duty existed);
• That the physician breached the relationship by rendering treatment which did not fall within the standard of care;
• That it was the physician’s treatment which caused the patient’s injury;
• That the patient did indeed suffer damages as a result of the physician’s care.
• Failure by the plaintiff to prove any one of these four elements usually results in a finding in favor of the defendant.

Case Summary

The patient was an elderly female who saw the insured, a general ophthalmologist, with the complaints of decreased vision in the left eye of three weeks’ duration. Vision was hand motion only. The patient had suffered from poor vision in the other eye for many years as a result of a perforating injury. The ophthalmologist noted age related maculopathy in both eyes, and performed laser treatment.

Four months later, the patient presented with an active blood vessel membrane that appeared to extend through the center of the fovea of the left eye, and a subretinal hemorrhage of the left eye. The patient was treated for conjunctivitis and referred to a macular photocoagulation study group; however, the blood vessel membrane was too large to place the patient in the study. A month later, a retinal specialist diagnosed macular degeneration and referred the patient to a vision rehabilitation center. The patient sued the general ophthalmologist.

Outcome

During the trial, it was the plaintiff’s contention that the ophthalmologist had misdiagnosed macular degeneration and had incorrectly performed laser surgery without the patient’s informed consent. The defense countered that the diagnosis was correct, that the treatment was appropriate, and that the ophthalmologist had informed the patient of the potential risks and complications of laser surgery. As the trial progressed into its fifth day, and it appeared that the testimony was favoring the defense, the plaintiff was informed by her attorney and the judge that she would be responsible for trial and mediation costs if her case was lost. The plaintiff agreed to dismiss all charges.

Risk Management Principlesand Commentary

Had a verdict been rendered in this case, it is unlikely there would have been a finding of negligence. Of the four elements necessary to establish medical malpractice, the plaintiff was able to demonstrate only that a physician-patient relationship, a legal duty, existed.

The defense, on the other hand, was able to demonstrate that there was no breach in the standard of care because the diagnosis was correct and because the laser surgery was acceptable treatment falling within the standard of care for subretinal neovascularization. Furthermore, the defendant-ophthalmologist testified convincingly that the patient was informed of the risks of surgery.

Finally, the defense was able to show that the patient’s vision loss was caused by macular degeneration and subretinal neovascularization, not by the ophthalmologist’s treatment. Since the plaintiff could not demonstrate that the ophthalmologist’s treatment was what caused her alleged injury, she thereby failed to prove another of the essential four elements for a finding of negligence.

Delay in Performance of Retinal Detachment Surgery and Associated Nonmedical Issues

Digest, Summer, 1993

ALLEGATION  Insured ophthalmologist allegedly delayed retinal detachment (RD) surgery because patient was unable to pay for the surgery in advance. Plaintiff also alleged that the insured improperly performed RD surgery on the first eye and overtreated the second eye.

DISPOSITION  Jury verdict award for the plaintiff for an amount exceeding $500,000.

Background

During a medical malpractice trial, the professional ethics and credibility of the physician are under intense scrutiny by the jurors. Not only does the physician need to possess irreproachable ethics, but any perceived lack of credibility may doom defense of the case.

Case Summary

The patient was a 48-year-old highly myopic female who presented to the insured’s office with complaints of flashing lights, lines and floaters of two days’ duration in the left eye. An examination revealed a rhegmatogenous retinal detachment with a giant tear and multiple other retinal tears OS. The insured performed a minor laser surgery procedure. The next day, the patient was admitted to the hospital for bed rest and bilateral patching prior to surgery scheduled for the following day, which coincided with a holiday. Surgery was postponed a day, at which time the patient underwent scleral buckle with cryopexy, vitrectomy, air/fluid exchange, laser photocoagulation, and C2F6 gas injection OS. According to the insured’s records, the postponement of surgery was due to a shortage of qualified operating room personnel on a holiday. However, the patient later alleged that surgery was delayed because the insured demanded to be paid before he would perform the surgery, and the patient was unable to get the money on a holiday.

The following month, an examination revealed a retinal detachment in the patient’s right eye. When laser treatment proved unsuccessful in repairing the detachment, the insured performed a scleral buckle, pars plana vitrectomy, retinal cryopexy, endolaser photocoagulation, air/fluid exchange and gas injection. The patient was referred postoperatively to a retinal specialist who confirmed that both retinas were attached. When the specialist last saw the patient four months later, both retinas were flat and attached. V.A. was 20/25 OD and 20/60 OS.

Five months later, the patient was examined by another ophthalmologist who found the patient’s visual acuity to be 20/40+3 OD and 20/80+ OS. A 22 to 23 prism diopter deviation was measured, which the ophthalmologist opined could cause significant double vision and make driving difficult, especially at night. Strabismus surgery was recommended.

Outcome

In her suit against the operating ophthalmologist, the plaintiff’s most damaging claim was the insured’s alleged demand for prepayment of the first retinal surgery, an allegation supported by the testimony of the plaintiff’s father and boyfriend. The insured denied that the delay was financially motivated and maintained that he delayed surgery until after the holiday because he could not obtain a surgical team experienced in vitrectomy procedures. However, the nurses who assisted in the patient’s surgery following the holiday testified that they did not have special training in retinal and vitreous surgery either.

During the trial, the plaintiff presented psychiatric evidence of major depression resulting from her fear of losing vision. Plaintiff also presented testimony from a vocational expert that she was unable to return to her previous employment as a computer salesperson following surgery.

Risk Management Principles and Commentary

Typically, “nonmedical” reasons came into play when a jury awards a large verdict against a physician in the absence of convincing evidence of actual injury to the plaintiff. In this case, although the defense was able to argue that the ophthalmologist followed the standard of care in performing the two RD surgeries, plaintiff’s counsel successfully attacked the defendant’s credibility and judgment on two issues:

• The alleged demand for prepayment.
• The reason for the delay in surgery.

This case might have been successfully defended on clinical issues alone; however, the associated nonmedical issues probably were seen by this particular jury as extremely damaging to the defense and most likely contributed to the high jury award.

Unnecessary Laser Surgery for Diabetic Macular Edema

By Randy Morris, JD, OMIC Claim/Risk Management Associate, Digest, Fall 1998

ALLEGATION: Unnecessary panretinal photocoagulation for proliferative diabetic retinopathy.

DISPOSITION: Case settled on behalf of insured ophthalmologist.

Case Summary

A 63-year-old diabetic woman presented to the insured with complaints of decreasing distance vision. Laser surgery previously had been performed on her left eye for diabetic macular edema but not on her right eye. The insured diagnosed neovascularization elsewhere superior to the macula of the right eye and instructed her to return in one month for a fluorescein angiogram and panretinal photocoagulation (PRP).

A month later when the insured performed the fluorescein angiogram, he found progressive neovascularization elsewhere as well as perimacular and neovascular changes, hard extradites, a vascular loop and edema. Based on his interpretation of the angiogram, the insured performed PRP on the right eye. When the fluorescein angiography report came back after the surgery was performed, there was no mention of either neovascularization of the disc (NVD) or neovascularization elsewhere (NVE).

Twelve days post-op, the patient complained of loss of peripheral vision and severe pain in the right eye. The cornea was clear with no neovascularization. Visual acuity was 20/30 in the right eye. The insured reassured the patient that postoperative pain was normal. Over the next two months, visual acuity improved to 20/20 although the patient continued to complain of visual field loss and hazy central vision in the right eye. At her last visit, the insured referred the patient to a retina specialist. Visual field testing a year later by another physician showed significant visual field loss and a decline in visual acuity to 20/100 in the right eye.

Analysis

Defense experts were split on the issue of whether the patient exhibited enough signs of proliferative diabetic retinopathy to warrant treatment with PRP. One opined that the patient was a candidate for focal treatment of macular edema, but not PRP because she did not meet the criteria established by a 1976 diabetic retinopathy study, i.e., NVD greater than a 1/4 or 1/3 disk diameter or NVE. The other defense expert found signs of progressive PDR warranting PRP and supported the insured’s choice of spot size, macros and number of applications.

One of the plaintiff’s experts opined that the retinal photos and angiography taken by the insured did not reveal signs of diabetic retinopathy requiring treatment; therefore, it was below the standard of care to perform PRP in the absence of these objective findings and before reviewing the fluorescein angiogram results. This expert did admit that a fluorescein angiography is not required prior to performing PRP if the indications for the treatment are visualized prior to surgery as the insured had testified. However, there was no documentation of the insured’s findings prior to the angiogram and no mention of the angiogram findings to support the need for surgery. The plaintiff’s expert went on to say that even if the procedure had been indicated, the visual field loss was more than one would expect from a properly performed PRP. The patient had retained only 10% of her visual field.

Risk Management Principles

The insured’s failure to document any of his findings from the fluorescein angiogram was a major factor in the decision to settle this case. Although the defense expert made an excellent witness, it became clear during his deposition that this would be an extremely difficult case to defend. He was forced to admit, first, that neither the insured’s chart nor the fluorescein angiogram showed any documentation of either NVD or NVE and, second, that based on the color photographs in the insured’s chart, it was below the standard to perform PRP. Consequently, the only justification and support for performing PRP lay in the insured’s deposition testimony given one year after the operation.

In a busy practice it is often difficult to document the clinical interpretations and impressions that motivate medical decisions. This case exemplifies how taking just a few moments to record findings and interpretations, even those that seem trite or obvious, can save hours of litigation time and considerably bolster the defense should the practitioner’s care be called into question.

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.