Risk Management



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.

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