Risk Management

Codefendant Ophthalmologist Testifies Against OMIC Insured at Trial

by Ryan Busci, OMIC Senior Claims Associate

Digest, Winter 2005

ALLEGATION Negligent cataract surgery and displaced intraocular lens, resulting in endophthalmitis and enucleation.

DISPOSTION Defense verdict for OMIC insured. Codefendant settled with an indemnity payment.

Case Summary

An OMIC insured ophthalmologist performed a cataract procedure on a 73-year-old male patient. During the procedure, there was a posterior capsule rupture with some corneal edema. The insured performed a Weck cell vitrectomy, an “open sky” procedure that uses a cellulose sponge to hold the vitreous as it is cut with scissors. The following day, he noted that the patient still had blood in the eye and visual acuity of hand motion. Seven days postoperatively, the insured concluded that there was still blood in the eye but no sign of infection. Visual acuity had improved to count fingers.

Approximately two weeks later, another ophthalmologist saw the patient in the emergency room. This ophthalmologist diagnosed a dislocated intraocular lens. He admitted the patient to the hospital and removed the intraocular lens; no antibiotics were administered during this procedure. He discharged the patient on the second postoperative day despite examination evidence of increased inflammation, which was left untreated.

One day after discharge, the patient presented to this ophthalmologist’s office with additional signs and symptoms consistent with an infection. The ophthalmologist administered topical antibiotics but took a “wait and see” approach and had the patient return in 24 hours. When the patient returned the following day, he was diagnosed with endophthalmitis.

The patient underwent a vitreous tap and injection of antibiotics by a third ophthalmologist but ended up with no light perception in the operated eye. Eventually, the patient required an enucleation and later developed orbital cellulitis, which required removal of the implant.


Taking a case to trial, much like performing a surgical procedure, has its risks and potential for complications. In this case, OMIC had what it believed to be a unified defense for its insured going into trial but recognized the difficulties facing the codefendant ophthalmologist’s case.

During the first day of trial, the codefendant ophthalmologist settled with the plaintiff. He then testified that the insured’s Weck cell vitrectomy had created areas and grooves, which had allowed bacteria to land and grow, thus providing a tissue environment for the subsequent infection. This was new information that the codefendant had not offered in his deposition. Had OMIC and defense counsel known that the codefendant was going to be critical of the insured’s care, this may very well have changed the pre-trial evaluation of the defensibility of this case.

However, upon cross examination, OMIC counsel was able to get the codefendant to admit that it was not below the standard of care for the insured to have had the complication of the broken capsule or to have used the Weck cell for the vitrectomy in the initial cataract surgery. In fact, there were absolutely no signs of infection during the insured’s treatment of the patient and no signs of infection detected until after the codefendant’s removal of the intraocular lens.

The plaintiff and codefendant could not dispute these medical facts or OMIC’s strong expert witness support for the insured. The jury agreed and rendered a defense verdict on behalf of the OMIC insured.

Risk Management Principles

Statements criticizing the care of another treating physician are often the root cause of malpractice claims and lawsuits. It is imperative to exercise great caution when commenting on another physician’s care in front of a patient. Concerns about the care of a treating physician are more appropriately discussed with the physician, not with the patient.

Going into trial with a unified defense is extremely helpful to the overall defense of a case. Finger pointing among defendants is usually not well received by a jury. When codefendants criticize one another, they are essentially testifying for the plaintiff. Shifting blame or criticizing someone else does not guarantee that you will not also be named in the lawsuit nor will it necessarily help you at trial.

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