Disclosure of Risks, Complications, and Adverse Outcomes
By Anne M. Menke, RN, PhD
OMIC Risk Manager
Digest, Summer 2003
ALLEGATION Loss of vision following cataract surgery.
DISPOSTION Defense verdict on behalf of insured ophthalmologist.
Case Study
A77-year-old female presented to the insured ophthalmologist with complaints of being unable to read, drive, or watch television and vision in the left eye of light and dark sensation only. Visual acuity was 20/25 OD and 20/80 with refraction OS. Past ocular history included peripheral iridectomies OU for intermittent angle closure glaucoma and pseudophakia OD. Medical history was significant for atrial fibrillation treated with aspirin, COPD, and hypertension. The patient had a dense cataract, grade 3-4+. The ophthalmologist recommended phacoemulsification with IOL placement under topical anesthesia and a clear corneal incision. After removing the extremely dense cataract, the insured detected a large rent in the posterior capsule and performed an anterior vitrectomy with removal of the remaining cortex. He attempted to place the IOL in the sulcus but resorted to anterior chamber placement due to instability. No bleeding was noted.
The patient’s postoperative course was complicated by the development of a full eightball hyphema with loss of vision on day 3; treatment consisted of bed rest in a recliner at 30 degrees and 1% ophthalmic Atropine. The ophthalmologist later testified that he recommended but the patient refused hospitalization; he did not document this or any pre or postop discussions regarding the possible effects of the patient’s aspirin therapy. IOP, slightly elevated at 28 on postop day 1 and treated with topical agents, rose to 62 on day 4 when the patient experienced a rebleed, prompting an anterior chamber paracentesis and hospitalization. An anterior chamber washout was needed the next day to control the pressures. Blood staining of the cornea and IOP of 30 was noted on day 13. The retina specialist to whom the patient was referred performed another anterior chamber paracentesis and found no posterior bleeding on B scan. The patient requested a second opinion; the consultant explained the treatment options but told the patient there was little chance for visual improvement.
Analysis
The plaintiff’s expert was critical of the insured on several accounts. First, the insured should have considered the impact of aspirin therapy on the development of the hyphema or rebleed and advised the patient to discontinue taking aspirin once bleeding developed. Second, the insured did not recognize the early readings as falsely low in the face of edema and hyphema. Third, had systemic agents been used to control the patient’s elevated pressure, optic nerve damage and the resulting loss of vision might have been prevented. Fourth, the hyphema should have been washed out earlier with care taken to remove the clot.
While noting the insured’s lack of documentation regarding aspirin and recommended hospitalization, defense experts supported the accuracy of the IOP measurement and felt he had appropriately recognized and managed the intraoperative and postoperative complications. The jury returned a verdict in favor of the insured ophthalmologist.
Risk Management Principles
The ophthalmologist disclosed the potential complications to the patient and responded each time to the patient’s complaints by promptly examining her, even on Christmas. This responsive care no doubt contributed to the jury’s defense verdict. Like many patients, the plaintiff was angry about experiencing two rare complications and about learning the permanent nature of her vision loss from a consultant she herself had asked to see. Had the ophthalmologist explained that she had two risk factors that might lead to rupture of the posterior capsule (the dense cataract and the fragile condition of the capsule), the patient might have been better prepared to deal with her poor outcome.
When anticoagulants are medically necessary for surgical patients, the surgeon should explain the need and risks to the patient and choose the most appropriate anesthesia and operative technique. Instructions to stop medications, especially anticoagulants, and recommendations for hospitalization must be documented. When there is significant loss of vision, the patient should be kept informed of treatment options and prognosis for recovery. If a poor outcome is final, the patient should be assisted in adapting to a low vision status.
Risks and Benefits of Writing Off a Patient’s Bill
By Ryan Bucsi, OMIC Senior Litigation Analyst
Digest, Spring 2007
ALLEGATION Performance of unnecessary cataract surgery and failure to diagnose and treat glaucoma.
DISPOSITION Case dismissed by plaintiff just prior to trial.
Case Summary
An OMIC insured performed uncomplicated cataract surgeries one week apart. Following surgery, the patient had uncorrected visual acuities of 20/25+2 OD and 20/25 OS, with increased intraocular pressures of 27 and 28. The insured prescribed Ocuflox in the left eye and Lotemax in both eyes. During subsequent visits, the patient complained of a foreign body sensation, tiredness, and irritation in both eyes; a throbbing pain and seeing a yellow ring behind the left eye; and glare and light sensitivity. Suspecting migraines, the insured advised the patient to have an MRI, which was normal.
The patient did not return to the insured’s office for three months, against the insured’s advice, but did seek treatment from another ophthalmologist, who documented 20/20 vision without correction bilaterally and diagnosed a posterior vitreous detachment in the right eye. The patient eventually returned to the insured complaining of dry eyes, sharp pain, light sensitivity, and headaches. The insured’s impression was a neuralgic pain problem, and he referred the patient to a corneal specialist. The corneal specialist could not find a treatable diagnosis based upon his examinations. A third ophthalmologist treated the patient with punctal plugs and diagnosed chronic open angle glaucoma.
Analysis
The patient did not allege any malpractice against the OMIC insured until a dispute arose over payment of the cataract surgeries. The patient then claimed that she had been informed by the insured’s staff that her health insurance plan would cover all costs of the surgeries; post surgery, however, she learned that only 70% of the costs would be covered. The insured and his staff disputed the patient’s claim but agreed to write off 10% of the costs, leaving the patient responsible for paying 20%. The patient refused to pay and when the insured pursued these costs through litigation, the patient filed a counter suit alleging medical malpractice. Specifically, she alleged that the OMIC insured performed unnecessary cataract surgery on the left eye and failed to diagnose and treat glaucoma.
OMIC retained an attorney on behalf of the insured and had the case reviewed by both cataract and glaucoma experts. Another expert was retained to opine on whether any of the patient’s other health conditions, fibromyalgia, irritable bowel syndrome, or skin cancer, could have caused her ocular complaints. A summary jury trial was held prior to the actual trial during which jurors heard an abbreviated version of the defendant’s and plaintiff’s arguments and then issued a mock ruling on the case. The jury ruled 6-0 in favor of the defense. When interviewed by the attorneys, the jurors were so overwhelmingly in favor of the OMIC insured that the plaintiff decided to dismiss the case just prior to the start of the actual trial.
Risk Management Principles
When there is an unanticipated outcome followed by a dispute over billing, OMIC insureds are strongly advised to contact OMIC for advice on how to proceed. OMIC staff can help the insured weigh various options, such as setting up a payment plan, waiving or reducing fees, facilitating a second opinion, and offering the patient additional emotional support. In this situation, the patient faced multiple illnesses and hearing that doctors could find no objective reason for her eye complaints may have been more than she could bear. Rather than address the toll that her condition was taking on her, both she and the surgeon focused on the billing issue, which led to an impasse. OMIC certainly supports a physician’s right to be paid for care provided and works vigorously to defend insureds who meet the standard of care, as we did for this ophthalmologist. Our ultimate goal, however, is to avoid litigation entirely because this is generally in the best interests of all parties. Lawsuits are time consuming and stressful and take time away from one’s practice. Some insureds decide fairly readily to waive their fees when it seems a prudent strategy to avoid litigation. Some do so as a compassionate gesture to the patient or to engender or sustain good will in their community. Whatever decision the insured ultimately makes, OMIC wants it to be a well-informed one.
Failure to Provide Urgent Eye Exam
Digest, Winter 1997
ALLEGATION Failure to provide an urgent eye examination, resulting in delayed diagnosis and treatment of a retinal detachment.
DISPOSITION Case settled with a small indemnity payment.
Case Summary
The claimant, a 67-year-old male, was first examined by the insured ophthalmologist at a rural satellite office for complaints of seeing floaters and flashes of light for three days. Examination revealed a posterior vitreous detachment with no retinal holes or tears. The patient was instructed to call the insured if the floaters or flashes increased or if there was a vision change. Three weeks later the patient presented with complaints of seeing spiderwebs. A repeat retinal examination was normal, and the patient was told to call immediately if there was any change in symptoms.
A month later, the patient called the insured’s office on a Thursday and told the receptionist he was seeing a dark spot in his peripheral vision OD. He was told that due to a medical convention there would not be any physicians in the satellite office for several days, but his message would be relayed to the practice’s main office in a nearby city and he would receive a return call. The patient’s message was phoned in to the main office by the receptionist and given to one of the nurses. According to the patient, a nurse later called him back and, after discussing his visual complaints, told him there were no appointments available for the remainder of the week, but if his symptoms did not resolve, he should call back the following Monday.
On Friday evening, the patient experienced increased loss of vision and was referred to a local on call ophthalmologist by the insured’s answering service. The on call physician diagnosed a rhegmatogenous retinal detachment and immediately sent the patient to a retinal specialist. Visual acuity at this time was 20/30 OD. By the time the patient reached the specialist’s office an hour later, the detachment involved the macula. Following a retinal procedure, the patient suffered a redetachment and required additional surgery. Ultimately vision could be restored to on the 20/400 level. The patient filed suit against the insured ophthalmologist and the corporate employer of the administrative and nursing staff at the practice.
Analysis
The claimant argued that had he been examined on Thursday, his retinal detachment would have been diagnosed early enough to prevent macular involvement, thereby significantly increasing his chances of regaining good vision. Deposition testimony by two subsequent treaters supported this theory. The defense contended it was the development of proliferative vitreoretinopathy after the initial retinal surgery, not a delayed diagnosis and macular detachment, that caused the claimant’s damages.
Based on the available evidence, experts on both sides were critical of the fact that the patient was not referred to an ophthalmologist when he reported his vision change to the office on Thursday. In the face of this serious standard of care issue, the carrier and insured agreed that a small settlement on behalf of the corporation would be appropriate. The ophthalmologist who was individually named in the suit was dismissed because there was no direct criticism of his examinations and patient instructions prior to the detachment.
Risk Management Principles
Unfortunately, the only documentation concerning the patient’s call was a telephone message stating that the patient was seeing a black spot OD. By the time the suit was filed, none of the nurses in the principal office remembered talking to this patient. Perhaps in part because the chart was located in the satellite office and not immediately available, the unidentified nurse made no notes concerning the oral triage of patient. Thus, the defense was unable to present any testimony or documentation that could challenge the claimant’s version of events concerning the nature of the symptoms reported to the nurse.
This case illustrates that it is good risk management practice to ensure that documentation concerning a patient’s contact with a principal office is transferred to the medical chart located in a satellite office. It is difficult to know in the above scenario whether the nurse’s judgment call that the patient did not have to been seen immediately could have been justified based on the full content of her conversation with the patient. However, with the dearth of documentation and the absence of any independent recollection by the nurse involved, the opportunity to raise such a defense was lost.
An office procedure that includes communicating the ophthalmologist’s findings and plans from the previous examination to staff in a remote office, perhaps via fax or computerized medical records, accessible to both the principal and satellite offices, may have benefited the nurse who triaged this patient. If due to some communication issue, the description of symptoms provided by the patient over the telephone was not clear enough to raise concerns regarding a possible retinal detachment, reference to previous records would have alerted the nurse to the seriousness of the situation.
This case also points out that ophthalmologists should be mindful of what malpractice coverages they have in place for their corporations. Because the nurse was an employee of the corporation, it was the corporation rather than the individual physician who was exposed to liability. At OMIC, coverage for sole shareholder corporations at shared limits with the physician owner is automatically included without additional charge. However, if separate limits are desired, or if the corporation has more than one shareholder, additional coverage may be purchased in order to protect the shareholders against claims directed at the corporation and its employees.
Allegation of Consumer Deception Following Flap Complication
By Randy Morris, JD
OMIC Claims Associate
Digest, Summer 2002
ALLEGATION Negligent performance of LASIK, resulting in wrinkled flap and vision loss.
DISPOSTION Defense verdict on behalf of insured ophthalmologist.
Case Summary
A friend of a 47-year-old female patient arranged for her to have LASIK surgery by the insured. The patient resided in a different state and flew to the insured’s region for the surgery. Upon arriving at the insured’s office, the patient filled out the necessary forms and perused the brochures about LASIK in the waiting room. One of the brochures was from the laser center where the insured performed LASIK and contained a statement to the effect that doctors at the center had performed the first excimer laser surgeries in the area and were instrumental in training hundreds of other ophthalmologists. On the back of the brochure was a sticker with the insured’s name, address, and telephone number.
The patient had surgery on both eyes the following afternoon. During a post-op visit the next day, the plaintiff complained of blurry vision in the right eye. Slit lamp examination disclosed wrinkles involving the right flap. The insured had the patient return to the laser center the same day where she relifted and reseated the flap. At the second postoperative visit, the insured learned that the patient planned to return to her home state the following day. Arrangements were made for follow-up by an ophthalmologist in her area.
One week later, the patient was seen by the local ophthalmologist who found vision in the right eye to be 20/60 with some edema. Approximately four months later, another ophthalmologist diagnosed a wrinkled flap and gave the patient the option of wearing a contact lens or undergoing further surgery to treat the flap.
Analysis
The plaintiff’s case originally focused upon informed consent and the management of the wrinkled flap complication. Although the plaintiff had signed a three-page bilateral consent form, watched a video describing the procedure, and filled out a true/false questionnaire, she maintained there was no discussion between herself and the insured regarding the risks of LASIK. The insured disputed this version of the facts, and the plaintiff’s friend reluctantly testified that he had heard the insured discuss the risks with the plaintiff. On the issue of the flap complication, the defense had strong expert support that the insured had handled it appropriately.
In a troublesome turn of events after litigation was well under way, the plaintiff was allowed to amend her complaint to allege violations of the state’s consumer protection statutes and to add a demand for punitive damages. Because the insured’s name and address appeared on the laser center’s brochure, the plaintiff alleged that she believed the insured had participated in the accomplishments listed in the brochure and would not have agreed to the surgery had she known that was not the case. The defense team fought hard to get the intentional and punitive allegations excluded prior to trial because it was clear that the plaintiff attorneys were attempting to manufacture a much more egregious lawsuit than the facts supported. A verdict for the plaintiff would have potentially exceeded the insured’s policy limits and placed her personal assets at risk. Unfortunately, the judge allowed the plaintiff to proceed to trial with her new allegations intact.
After two weeks of intense trial proceedings, the jury returned a verdict for the defense. The jury felt there was no negligence on the part of either the insured or the laser center concerning the flap complication and its management. Additionally, the jury was skeptical of the plaintiff’s claims of deception under the consumer protection statute.
Risk Management Principles
This case illustrates how a standard medical malpractice lawsuit can sometimes metamorphose into a far more serious case with potentially grim consequences professionally and financially. Fortunately, OMIC had strong expert support for the insured’s underlying medical care and felt it was important to fight the additional allegations as a matter of principle. Nonetheless, physicians should be mindful of the materials that are available to patients in their waiting room and realize that statements made in those materials can have a tremendous impact on how patients perceive their care and outcome.
Collegial Criticism Could Land You in Court
By Paul Weber, JD
Argus, September, 1993
One of the most common catalysts of medical malpractice lawsuits is an inadvertent or deliberate critical comment by a health care professional about a colleague’s actions. Many defense attorneys estimate that 25% of all claims against physicians may be triggered by a comment made by another physician or the physician’s staff.
Sometimes a plaintiff’s counsel takes a shotgun approach when naming defendants in a medical malpractice lawsuit either because the plaintiff is uncertain who actually caused or is responsible for the alleged injury, or as part of an overall “divide and conquer” strategy. OMIC often manages claims against its insureds in which other physicians, hospitals, nurses and HMOs are named as co-defendants. When physicians communicate with patients who have suffered an iatrogenic injury, factual and tactful documentation with discretion can help avert, or avoid encouraging, claims of alleged medical malpractice.
According to the Physician Insurers Association of America, almost 70% of all claims reported against physicians arise in a hospital, and one half of those occur in the operating room. Hospital records are often the first to be reviewed by the plaintiff’s attorney when evaluating a potential claim.
For example, OMIC defended a claim against an insured-ophthalmologist who performed cataract surgery using phacoemulsification. During surgery, the phacoemulsification unit became hot very quickly and burned the patient’s cornea. It was later discovered that the irrigation line had not been hooked up when the phaco unit was handed to the ophthalmologist. It is tempting in this type of situation for the surgeon to blame the hospital staff or the equipment when documenting the incident in the operative report. To this insured’s credit, she accurately and factually described the steps in the procedure, including the burn by the phaco tip, omitting any comments that placed blame or described an equipment malfunction.
In this case, prudent charting by the ophthalmologist did not prevent a claim from being brought against the ophthalmologist and the hospital. However, by not blaming someone else, the ophthalmologist reduced the plaintiff attorney’s ability to exploit a conflict between the defendants themselves.
Cases often arise when one or more treating physicians allegedly miss a diagnosis. The strongest defense in multiparty lawsuits is generally a unified one. In cases of a missed diagnosis, however, co-defendants often find their interests in conflict, particularly if different liability insurance companies are involved.
Another OMIC case involved a general ophthalmologist who was called in as a consultant by an internist to examine a patient in the hospital. The patient had a history of acute sinusitis and was experiencing visual disturbances in her left eye subsequent to an ethmoidectomy. Visual acuity was 20/80 OU and IOP was 15mm Hg OU. A dilated fundus exam revealed macula edema, which the ophthalmologist attributed to an inflammatory reaction secondary to sinusitis. The ophthalmologist next saw the patient four days later in his office for a full eye exam. By then, the patient’s vision had greatly deteriorated, and the ophthalmologist diagnosed giant cell temporal arteritis. He prescribed steroids and referred the patient to a neuro-ophthalmologist. Unfortunately, the patient eventually lost vision in both eyes and subsequently sued the general ophthalmologist, the internist and the hospital.
During depositions, the patient’s husband stated the first indication that anyone might have done something wrong was when the neuro-ophthalmologist, who was insured by another carrier, commented that “this should never have happened.” The neuro-ophthalmologist made this statement before he had reviewed all the records or discussed the examination and treatment of the patient with her internist and the general ophthalmologist. Criticism by the neuro-ophthalmologist clearly was a factor in precipitating a lawsuit. Since he did not have all the records and was not present at the initial treatment, it was improper and premature for him to have commented on the care rendered by his colleagues. Ordinarily, a patient outcome like this can be defended. But this case was difficult to resolve because the defendants were unable to mount a unified defense and each accused the other of missing the diagnosis. This case was finally settled on the courthouse steps.
It is morally and legally wrong for physicians to conceal information or to keep the truth from their patients. However, a subsequent treating physician should refrain from coming to conclusions or implying carelessness or negligence before knowing all the facts. Such comments only aggravate already unfortunate situations and may precipitate lawsuits against colleagues.
