Risk Management

Delay in Consultation Referral of Post-RK Patient

Digest, Fall, 1996

Allegation

Improper performance of radial keratotomy (RK) surgery, lack of informed consent, and fraudulent concealment of plaintiff’s condition.

Disposition

Case settled with a small indemnity payment.

Case Summary

The patient was a 28-year-old woman who was nearsighted and had worn contact lenses for a number of years without problems. She was interested in having RK surgery after reading about the procedure in a newspaper article. The patient contacted the insured ophthalmologist and was seen by him in August 1986. The insured discussed RK with the patient and had her watch a video showing how the procedure was performed and covering the risks and benefits of RK surgery. The patient’s right eye was scheduled for surgery in November. Prior to surgery, the patient signed a lengthy RK informed consent document, which included information about possible reoperations (enhancements), loss of night vision from “starburst effect,” and the fact that there were no guarantees as to the success of the procedure. During surgery on the right eye, the third incision resulted in a macroperforation and the procedure was terminated. The left eye was operated on later that month and had an initial good result with vision improving to 20/30. In February 1987, the right eye was operated on again with good results. Vision was 20/30 OD and 20/50 OS when tested in March. A repeat surgery of four incisions on the left eye was performed in April. The left eye was still undercorrected and another four-incision reoperation was done in June. Follow-up visits with the insured as late as December of that year showed vision without correction to be 20/25 OD and 20/60 OS.

The patient experienced a great deal of difficulty driving at night because of the starburst effect, which the insured tried to treat with a combination of miotics, contact lenses, and spectacles without much success. The patient eventually was referred to a corneal subspecialist by her family’s optometrist. The corneal subspecialist made critical comments about the symmetry, depth, and placement of the incisions in the cornea. Three months later, the patient filed a lawsuit against the insured.

Even though the patient’s VA was 20/20-1 OD and 20/20 OS with contact lenses, the subspecialist proposed corneal transplantation (PKP) as a way of relieving the glare, photophobia, and visual distortion the patient was experiencing at night. After consulting with two other ophthalmologists, the patient agreed to have PKP on the right eye in August 1990. The graft was successful, and the patient claimed the PKP had relieved her glare and star-burst effect in the right eye; however, she did not want PKP on the left eye.

Analysis

The expert for the defense was a corneal subspecialist. At his deposition he testified that the insured’s treatment of the patient was appropriate and countered the other subspecialist’s criticisms regarding the depth and placement of the insured’s incisions. He stated that it was difficult to criticize incision depth since it is impossible to determine with certainty the depth of the incision after it has healed. He also testified that the “symmetry of the incisions” may not be important since many patients have good results with incisions that are irregularly placed or wavy. Finally, he testified that corneal transplant surgery was “way down” on his list of possible treatment options for this patient.

The plaintiff’s expert testified at his deposition that the incisions were not of appropriate depth and were well into the visually significant area of the cornea. The subsequent treating ophthalmologist at his deposition simply confirmed his initial critical comments regarding the depth and placement of the incisions and supported his own recommendation for PKP. Although performing PKP on post-RK patients is controversial, the subsequent treating ophthalmologist was supported by the two other ophthalmologists whom the patient had consulted with prior to PKP.

This case was further complicated by the fact that the patient had begun seeing a psychiatrist for depression and suicidal ideation. The mental health notes stated the depression “… began about four years ago when her corneas were permanently damaged from poorly done surgery on her eyes.”

Defense counsel recommended settlement because this state had a history of high jury awards against ophthalmologists in a number of RK cases even when the patient’s complaints involved relatively minor visual problems. Counsel also felt that if a jury believed the patient’s depression was causally (actually) related to the surgery, the insured could be exposed to a potentially large award. The insured took this advice and agreed to settle.

Risk Management Principles and Commentary

Careful patient selection is a prominent issue in this case. Perhaps there is no way the insured could have detected the patient’s “psychological vulnerability” prior to surgery, but it is still important to point out that often patients who have elective surgery, be it refractive surgery or laser skin resurfacing, have unrealistic expectations and tend to blame the surgery and the surgeon when their lives do not change or the results are not as wonderful as they had hoped. Any patient with a history of psychiatric treatment or substance abuse should be given extra attention by the ophthalmologist. This does not mean that such patients should be summarily denied surgery; however, it may be necessary to spend more time with them to clear up any misconceptions.

The most important risk management issue in this case was the delay in referring the patient to a corneal subspecialist. The delay caused two things to occur. First, the insured lost control of the patient, who went to a subspecialist who held a conservative viewpoint on indications for RK surgery and who had already performed several corneal transplants on post-RK patients. Second, the delay, coupled with the criticism of this subspecialist, raised doubts in the patient’s mind about whether the insured had concealed the fact that she needed a corneal transplant to treat the starburst effect. With refractive surgery patients, and others who have had elective surgery, it is important to consider early consultations to subspecialists or colleagues when the patient complains about some aspect of the care or result. These patients often need reassurance that the treatment rendered has been appropriate and, sometimes, the subspecialist or colleague may have a treatment plan that may help or appease the patient. Any suggested alternative treatment by a colleague should be done so the patient understands it is a joint effort between colleagues to help resolve the problem. Finally, keeping control of the consulting process generally will result in a referral to someone who is less likely to criticize the treatment or surgery. This type of prudent referral is not to be mistaken for a conspiratorial cover-up of a real problem, but rather a commitment to work together in search of a proper resolution to the patient’s complaints.