Risk Management

Eyes, Lies and Malingerers

By Paul Weber, JD

[Digest, Fall 1998]

Litigants in an ophthalmic malpractice or personal injury lawsuit sometimes will feign illness or injury with the expectation that poorer vision will yield a higher monetary recovery. Generally, these malingerers are unsophisticated and feign complete loss of vision with no light perception. This can be easily verified or refuted through examination of the eye’s anatomy, pupillary reactions and other clinical findings of functional vision loss. Occasionally, however, a malingerer may elude detection and potentially wreak havoc on the medicolegal system. What follows is a case study of how one malingerer was able to deceive many reputable ophthalmologists and nearly triumph in her lawsuit against an OMIC insured.

Our story begins in May 1992 at a major university eye center where a 19-year-old woman was diagnosed with pars planitis. Visual acuity at the time was 20/30 OD and 20/40 OS. Over the next 18 months, VA dropped to 20/100 OD and 20/400 OS. In November 1993, the patient was given a single Kenalog injection in the inferior subtenons space of both eyes and referred to the OMIC insured, a retinologist.

The insured saw the patient on two occasions, in December 1993 and again in January 1994. At the first visit, her VA had dropped to 20/400 OU and IOP was 37 mmHg OD and 36 mmHg OS. The insured diagnosed pars planitis with uveitic cataracts and primary open angle glaucoma. He started the patient on Timoptic drops twice a day. By her second visit, pressures had decreased to 24 mmHg OD and 23 mmHg OS. However, the OMIC insured felt the patient’s tested VA was much worse than the physical findings seemed to warrant and he urged her to obtain an MRI and return for follow-up in three weeks. Subsequently, the patient married and moved out of state. She did not return for a follow-up exam with the insured and was not treated by another ophthalmologist until July 1994, by which time her condition had “apparently” worsened. After subsequent treatment, the patient was found to be legally blind. She sued the OMIC insured for failure to communicate to her the need for continuing follow-up care to treat the serious condition that led to her eventual blindness.

The facts and circumstances that doomed the successful defense of this case occurred when the patient called the insured’s office in March and again in April 1994 and each time renewed her Timoptic prescription. The insured advised the patient, through his staff, that she needed to be checked locally by another ophthalmologist since she had a serious condition that could lead to blindness, but he failed to document this in the chart.

Prior to trial, the judge granted summary judgment against the ophthalmologist on the issue of negligence based upon the insured’s own deposition testimony wherein he acknowledged a responsibility to communicate the importance of follow-up treatment and the “devastating” (insured’s own testimony) consequences if the patient did not receive direct care. This meant that the only issue to be decided by the jury at trial would be how much compensation to award the patient for her injury since, as a matter of law, the insured had now been found to have breached the standard of care.

The Plaintiff’s Case

Damages would be determined in large part by the testimony of the patient’s subsequent treating ophthalmologists, all experienced, well-qualified clinicians. There was the local ophthalmologist who examined the patient in July 1994 (six months after her last visit to the OMIC insured) and found VA of 20/400 OU; IOP 28 mmHg OD and 27 mmHg OS; and cup to disc ratio 0.2 OU. He diagnosed decreased visual acuity secondary to pars planitis with secondary glaucoma and referred her to a regional university eye center for evaluation (not the same one where she was seen in 1992).

Also supporting the plaintiff’s claim for damages was the university eye center that confirmed the local ophthalmologist’s diagnosis and performed a trabeculectomy on the left eye in August 1994. After maximal medical therapy, a trabeculectomy was performed on the right eye in November 1994 at another medical center. The ophthalmologists at this center also would testify in support of the plaintiff’s claim for damages. Following these surgeries, the records revealed VA of 20/400 OD and CF OS with cup to disc ratio of 0.4 OD and 0.8 OS. The patient was legally blind. These clinical findings and experts would present compelling evidence to a jury on the severity of the patient’s injury.

The plaintiff had begun receiving full disability payments from Social Security in 1994. By 1998, she had received over $68,000 in payments from the State Commission for the Blind for educational assistance at a local university. (It is interesting to note that the plaintiff’s mother was a counselor for the State Disability Board and was familiar with the parameters necessary to obtain disability payments.)

To provide support for a large jury verdict, the patient had a vocational rehabilitation expert ready to testify to the economic damages the plaintiff would suffer as a result of her disability. This expert’s report stated: “Because of damage to the optic nerve, she cannot drive, cannot read or watch television and requires assistance with most activities of daily living.” These damages included a lifetime earnings loss in the range of $250,000 to $1 million (even though the plaintiff’s last job was working as a fast food restaurant manager earning $25,000 per year) and “Life Care Needs” expenses, including a laptop computer with a speech program at a base cost of $3,000 and “companion services” at an annual cost of $29,000.

Just before trial, the plaintiff’s attorney made a demand to settle the case for $600,000. The analysis of the defense attorney and OMIC’s Claims Department was that the defense’s only hope was to attack the plaintiff’s credibility and show that her damages were inflated. The insured authorized OMIC to seek a settlement, but in fact, a counter-offer was never made and this patience eventually paid off for the insured and OMIC.

The Defendant’s Case

During the plaintiff’s deposition, the defense attorney took great care to pin the plaintiff down on her inability to see and to definitively describe her limitations. Specific reference was made to her inability to drive, even in emergency situations. The defense attorney then obtained the plaintiff’s driver’s license record, which noted 20/20 vision with corrective lenses. This license had been renewed in January 1995. The plaintiff had filled out the renewal form without assistance and was obviously able to read and sign the form with print that was clearly in the J2 range. Based upon this information, defense counsel requested and was granted a neuro-ophthalmic evaluation.

The neuro-ophthalmologist performed a complete neuro-ophthalmic examination that revealed best corrected VA of CF OU. However, the fundoscopic examination was significant in that he felt there was only a 0.1 cup to disc ratio OD and 0.2 cup to disc ratio OS when examined with a 90 diopter lens. Additionally, the rims of the optic nerve looked quite healthy with no evidence of optic atrophy. Because of these inconsistencies, a visual evoked potential was ordered and performed with the plaintiff’s cycloplegic refraction with an additional +1 diopter of correction to compensate for the 1-meter distance to the stimulus. The evoked potentials were completely normal with excellent N1 to P1 amplitudes with the smallest check sizes, consistent with a VA in the 20/20 range in each eye! The plaintiff’s airtight case was beginning to leak.

Immediately following the disclosure of these results at the deposition of the neuro-ophthalmologist, the plaintiff’s attorney requested visual evoked potentials to be performed at a university medical center where the plaintiff’s experts were employed. Their evaluation contradicted the defense test results and concluded that the patient saw no better than 20/200 in each eye. The defense neuro-ophthalmologist rebutted the test results and showed that the university’s visual evoked potentials were not performed in the same fashion, with cycloplegia, as the ones performed by the defense, thereby resulting in the different interpretations. The defense position was improving, but it remained an uphill battle.

The Great Pretender

The plaintiff’s claims were finally routed by the dogged investigation of defense counsel, which uncovered prior employment records that eventually led to interviews with past employers and co-workers and the disclosure that the plaintiff had unsuccessfully filed a Human Rights Commission discrimination claim under the Americans with Disabilities Act, alleging discrimination at her place of employment because of her visual disability. Her claim was denied based upon the visual acuity noted on her driver’s license, the fact that she was driving 60 miles round trip daily to her employment, and 24 witnesses who had seen her drive and/or fill out forms with fine print. These witnesses and the documentary evidence would completely demolish the vocational rehabilitation expert’s economic damages testimony at trial.

Finally, the plaintiff’s credibility would be ruined when a jury learned that her husband was pocketing the $840 a month she was receiving in disability payments for “readers” for her schoolwork. When confronted with the overwhelming evidence accumulated from these interviews and from the documentary evidence, the plaintiff and her counsel pleaded to withdraw the claim on the eve of trial. At the same time, there was an indication that the State Disability Commission might institute a claim against the plaintiff for fraud.

This case is instructive in a number of ways. First, it shows how difficult it can be to uncover certain malingerers when a definite clinical diagnosis of ocular pathology has been made and the patient is claiming vision loss in the 20/400 range. These patients require electrophysiological testing to evaluate the functioning of the visual system. In this patient’s case, the electroretinography, electrooculography and visual evoked potentials were all completely normal, which brought her complaints into question and pointed to the critical role of neuro-ophthalmology in defending this case.

Finally, this type of case reminds defense counsel and claims departments how important it is to use the necessary resources to follow up on every possible lead in a case. Often these leads go nowhere and cost a great deal of money. However, as this case demonstrates, it is money well spent when you can catch and send packing the ocular malingerer.