Risk Management

Charges That Inadvertent Orbital Biopsy Caused Permanent Ptosis

Digest, Fall, 1993


Minor plaintiff, through a guardian, alleged that the insured ophthalmologist negligently performed an exploratory orbital surgery and tissue biopsy of the right eyelid, which damaged the levator muscle and caused permanent ptosis, resulting in dense amblyopia.


Plaintiff’s counsel demanded $750,000 prior to trial. No settlement offer was made. Jury verdict in favor of the OMIC policyholder.


A common catalyst of medical malpractice suits is an unintentional critical comment by a colleague. Even though the colleague may not mean to indict the other physician’s treatment, the statement often takes on a life of its own when a claim is pursued by a dissatisfied patient.

Case Summary

The patient was a 10-month-old girl who was first seen by the insured, a pediatric ophthalmologist, in his office upon referral from the emergency room at a nearby hospital. The patient had a rapid onset of proptosis of the right eye. The ER physicians and the insured concurred in the initial differential diagnosis of intraorbital tumor, possibly a rhabdomyosarcoma or lymphangioma, based upon the patient’s clinical history and CT-scan.

The insured performed exploratory orbital surgery four days after the initial exam for the purpose of taking a biopsy of the orbital tissue to rule out rhabdomyosarcoma and ascertain the nature of the tumor. The orbital tissue biopsy (frozen section) was found to be benign and the insured reentered the orbit in a further effort to determine the cause of the proptosis. A 5-centimeter cyst was located behind the globe near the optic nerve. Semi-clotted blood was aspirated from the cyst, resulting in an immediate reduction of the marked proptosis.

The patient had an expected postoperative partial ptosis of the right eyelid, which improved, then worsened with subsequent recurrences of orbital swelling. Based upon this subsequent clinical history, it appeared the patient had a lymphangioma.

A subsequent treating ophthalmologist performed a sling operation. The operative report, which was dictated by the assisting resident, stated that “a large gap of levator muscle was missing centrally due to inadvertent biopsy.” Minor plaintiff’s parents contacted an attorney and initiated a claim soon thereafter.


The plaintiff’s attorney’s strategy in this case was twofold:

  • Dispute the suspicion of rhabdomyosarcoma as a proper differential diagnosis.
  • Allege that the insured failed to identify and isolate anatomical structures, thereby negligently damaging the levator muscle when performing the biopsy. The critical comment of “inadvertent biopsy” in the operative report of the subsequent treatment ophthalmologist fit neatly with the plaintiff’s strategy of showing that the levator muscle was damaged by the insured.

The patient’s grandmother tried to bolster the point of the insured damaging the levator muscle by testifying that after the sling operation the assisting resident stated to her and the baby’s mother that the surgeon had been unable to locate both ends of the eyelid muscle centrally. He allegedly stated that “the baby did not remove the muscle herself.” From this purposed statement of the resident, the grandmother and mother assumed that the insured had removed that portion of the muscle.

During the deposition of the ophthalmologist who performed the sling surgery, he testified that there were a number of errors, inconsistencies and unfortunate word choices in the operative report dictated by the resident such as the characterization that the gap in the levator muscle was “due to previous inadvertent biopsy”. He supported the insured’s decision to do the biopsy and had no criticism of his treatment of the patient.

Nevertheless, the plaintiff brought in three experts who were willing to testify that the insured negligently damaged the levator muscle. The testimony of these experts conflicted, however, and much of it was discredited during the trial. After a six-day trial, the jury took less than three hours to reach a verdict for the defendant.

Risk Management Principlesand Commentary

This case typifies the situation in which unintentional comment generates a lawsuit. When a plaintiff’s attorney investigates a possible claim for medical malpractice, he or she will have all the patient’s medical records copied and reviewed. A comment by a subsequent treater such as “due to inadvertent biopsy” is a red flag to a plaintiff’s attorney that there may be negligence and helps the attorney to form a theory of the case.

Next, the records are sent to experts who are requested to focus upon the theory of the “inadvertent biopsy.” They review the records and see an “unbiased” subsequent treater opining that the biopsy was “inadvertent.” Thus, they may feel more secure in finding evidence to support this theory of the case.

The sad irony of this case and others is that the ophthalmologist whose operative report was used to bolster the claim against the insured actually had no criticism of the insured’s care of the patient and did not consider the biopsy “inadvertent.” However, his signature as well as that of the resident appeared on the operative report.

Prior to signing records, an ophthalmologist should review them for inconsistencies and incompleteness in clinical facts, findings, test results and the like. Dictated notes and reports, especially those dictated by an assistant, must be proofread to ensure accuracy and completeness. As in this case, what is charted will be considered the opinion of the signing ophthalmologist.

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An ophthalmologist pays nearly half a million dollars in premiums over the course of a career. Premium paid is directly related to a carrier’s claims experience. OMIC has a higher win rate taking tough cases to trial, full consent to settle (no hammer) clause, and access to the best experts. OMIC pays 25% less per claim than other carriers. As a result, OMIC has consistently maintained lower base rates than multispecialty carriers in the U.S.