Risk Management

Delayed Referral for Progressive ROP

By Mary Kasher, MSN, JD
OMIC Claims Manager

Digest, Summer 2001

ALLEGATION Failure to convey urgency and seriousness of infant’s ROP disease caused a delay in referral to a retinal specialist.

DISPOSITION  Defense verdict at trial on behalf of insured.

Case Summary

An infant boy was born at 27 weeks gestation, weighing 1247 grams and suffering from intracranial hemorrhages due to prematurity complicated by several neurological injuries. Following a three-month struggle, the baby was discharged from the hospital and referred by the pediatric neurologist to the insured, a pediatric ophthalmologist, to evaluate and follow for ROP. The insured’s impression when she examined the infant two weeks later was apparent grade I to grade II active phase retinopathy of prematurity OU. She recommended further evaluation by a retinal specialist. The baby was still on oxygen at home.

Three months later, examination by a retinal specialist showed grade IV ROP OD. Cryopexy was performed. The left eye demonstrated some dragging of the optic nerve temporally but no evidence of active neovascularization. Over the next two months, the retinal specialist noted some peripheral fibrosis temporally OD but no significant dragging of the retinal vessels. The left eye demonstrated temporal cicatricial changes with dragging of the macula temporally but no evidence of retinal detachment or active proliferation. At the time of the last examination, the retinal specialist believed the baby had full field vision OS but probably some central impairment associated with retinal dragging. Visual acuity OS was in the range of 20/200 to 20/400. The right eye demonstrated light perception only, and the baby’s general activity indicated total blindness in that eye.


There were two central issues in the plaintiff’s case against the insured ophthalmologist: (1) Could vision in the baby’s right eye have been saved with earlier treatment by the retinal specialist? (2) Did the insured stress to the mother the seriousness of the baby’s eye condition and the importance of a timely referral to the retinal specialist?

Plaintiff experts argued that the progression from grade I to II to grade IV OD was a direct result of the delay. Defense experts argued that even if the child had been referred in a timely manner, the end result would have been the same. The mother testified that although the insured did tell her about changes in her son’s eyes, she was never told of the urgent need for follow-up. The insured maintained that she instructed the mother to make an appointment with the retinal specialist within the week, but her records did not support this. She also claimed to have dictated a report of the baby’s condition in front of the parents and to have sent a copy to the retinal specialist, but the specialist’s records did not contain this report.

Fortunately, defense counsel found several neonatal nurses from the hospital where the baby was born to testify that the parents of a premature infant with neurological problems would necessarily have been informed of the seriousness of their baby’s condition before discharge and would have been instructed in the importance of follow-up visits. This instruction was well documented in the hospital’s records and helped discredit the mother’s testimony that she was never informed of the seriousness of her baby’s condition. In addition, the retinal specialist was able to reconstruct from his office records a timeline showing that the first call by the mother to make an appointment was more than a month following the last visit with the insured. His records also indicated that the first appointment was a no show and had to be rescheduled, resulting in yet another delay.

Risk Management Principles
This case demonstrates the importance of medical record details. Although the insured’s medical records were well documented in many respects, plaintiff attorneys zeroed in on the absence of a note regarding the conversation with the mother along with the missing copy of a letter dictated to the specialist. Fortunately, the thoroughness of the preceding and subsequent treatment records provided the jury with sufficient evidence of the mother’s noncompliance. This, along with the overall good quality of the insured’s records in general, enabled defense counsel to sway credibility back to the insured. Had the insured documented her instructions to the mother and her referral to the retinal specialist, this case probably would not have gone to trial and the insured would have been spared the expense of time and courtroom anxiety.

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