Risk Management



Risk Management Issues in Ophthalmic Plastic Surgery

By Michael J. Hawes, MD, FACS, and Marilys F. Gilbert, RN, Esq.

Digest, Winter, 1993

Oculoplastic surgery, because it is often cosmetic in nature, poses peculiar risk management challenges to the ophthalmologist who may be called upon to bridge the gap between unrealistic patient expectations and surgery’s limitations.

Further complicating the situation is the fact that health insurance carriers frequently consider oculoplastic procedures to be elective surgery and therefore not a reimbursable medical necessity. These factors combine to create a situation which can strain the physician-patient relationship and set the stage for a potentially adversarial relationship.

Frequency versus Severity

In the professional liability insurance industry, frequency refers to the number of claims filed, while severity refers to the indemnity and expenses incurred with the resolution of a claim. High frequency means that many claims are filed, while severity measures the dollar amounts of defense and settlement costs. In recent years, while we have seen claims frequency drop or level off, claims severity has increased.1

A review of 1,143 claims against ophthalmologists from three sources indicates that only 3.4% or 39 of these claims related to ophthalmic plastic surgery, suggesting that plastics may be a relatively low-risk subspecialty.2,3,4 (See Figure I.) There were 452 claims filed against OMIC insureds between October 1987 and January 1993, of which 11 involved oculoplastic procedures (2.4%).

Most Frequent Claim Types

Of the 39 oculoplastic claims reviewed, eyelid surgery was involved in more than half of all claims (20), with socket/orbital surgery a close second (16), and lacrimal drainage surgery a distant third (3). (See Figure I.) Further analysis reveals that blepharoplasty, ptosis repair and management of an orbital mass are the procedures most likely to result in a claim. (See Figure II.) A successful blepharoplasty can be quite gratifying to the surgeon and the patient. But as with any type of plastic surgery, a frequent complication is the unhappy postoperative patient. With blepharoplasty implicated in more than one-fourth of all oculoplastic claims, good patient-surgeon communication cannot be overemphasized. This should include a thorough preoperative discussion of the patient’s expectations and the procedure’s limitations.

The need for additional surgery is a frequent complaint from blepharoplasty patients. The surgeon may dampen patient dissatisfaction with blepharoplasty by not charging for revision surgery. Then, even if a lawsuit is filed, having waived these charges may mitigate damages against the surgeon. Other complications which instigated claims included: asymmetry, scarring, wound dehiscence, ptosis and globe perforation during local anesthetic injection.

Ptosis-related claims also are common, representing 18% of the oculoplastic claims reviewed. Reasons cited for these claims included overcorrection, need for multiple surgeries, and postoperative upper lid ectropion.

An equal number of claims resulted from alleged mismanagement of an orbital mass. Dry eye syndrome after removal of a lesion in or near the lacrimal gland, failure to diagnose an orbital malignancy, and post-biopsy ptosis were the bases for these claims.

Certain procedures such as eyelid tumors, eyelid reconstruction, entropion and trichiasis management were not implicated in any of the 39 claims reviewed. These might be considered, at this time, to fall in the “low risk” category for the oculoplastic surgeon.

Severity of Claims

Information about claims severity is necessarily subjective. An insurance carrier must make a judgment in establishing a “reserve” fund to cover the potential indemnity costs related to a claim which may not be resolved for may years. The amount to an indemnity settlement, if any, often is not released, and only limited information is available regarding severity of oculoplastics claims. However, visual impairment or loss tends to arouse a jury’s sympathy and bring about high dollar awards, regardless of the claimant’s age.

Of the 39 claims reviewed, those involving orbital trauma had the greatest severity. One claim was a case of visual loss after orbital hemorrhage. Permanent diplopia following trauma was present in another case. A ruptured globe and orbital foreign body resulted in a claim in a third case. In general, claims involving loss of vision, double vision, or sponges left in the orbit will result in higher indemnity payments than claims of asymmetry after blepharoplasty or ptosis repair. Likewise, management of an orbital mass probably involves more risk of permanent visual or systemic impairment than does eyelid or lacrimal drainage disease management. Exceptions to these generalizations are abundant, however.

There are steps that oculoplastic surgeons and other ophthalmologists can take to avoid or minimize medicolegal problems. Good patient rapport and preoperative discussion are foremost considerations. Adequate testing, informed consent, unaltered medical records, and timely referrals or second opinions on difficult patients or difficult cases are recommended.

Develop a Rapport with Patients

Good rapport with a patient goes a long way to prevent a claim when a complication or unexpected result has occurred. Often the deciding factor in filing a claim is a determination by the patient and family that the physician “really didn’t care” about the patient’s well-being. The patient should perceive his or her well-being as the goal of treatment. The surgeon who doesn’t relate well to a patient on the initial visit should suggest either a second visit or another doctor.

An unkind remark by the physician may result in a suit being filed. Patients who have complications or who are dissatisfied with their results should be seen more frequently than normal and given special attention by their physician, even thought this special consideration may be unpleasant for the physician.

Avoid Surprise Outcomes with Preoperative Discussion

Following lack of rapport, surprise is the next most common factor in a patient’s decision to file suit. Preoperative discussion with a patient and family can be instrumental in avoiding malpractice claims. Evaluation of patient expectations and psychological status can keep the surgeon out of trouble postoperatively.5

Patients tend to accept information presented prior to surgery, but are skeptical of the same statements made after a procedure.6 For example, ptosis patients should be advised preoperatively that the lid may be too high or too low after surgery, and that additional surgeries may be needed to obtain a satisfactory result. Blepharoplasty patients actually pay more attention to their appearance after surgery and tend to forget their preoperative appearance. Pre- and postoperative photos may help both patient and surgeon be more objective in evaluating results.

Risks and complications, as well as alternative treatments, must be disclosed preoperatively. While it is not practical or even possible to mention every potential complication, generally the most frequent and most severe complications should be mentioned. For example, patients with orbital tumors should be told that, among other things, visual loss, double vision, nerve damage, ptosis, dry eyes, hemorrhage, and tumor recurrence could occur.

The informed consent discussion is the surgeon’s responsibility, and cannot be delegated to a nurse or other employee. However, the patient should be presented with written information about the nature of the procedure, alternatives and complications. Trained personnel in the doctor’s office may answer some follow-up questions about this document, provided the physician is available to offer further counsel when needed. Written pre-and post-op care instructions, which take into account any specific health conditions or contraindications of the patient, should be given to the patient or a family member.

Keep Good Medical Records

It has been said that a jury tends to believe most of what is written in a patient’s record, and little of what a doctor who is being sued says in court. Once a suit is filed, good medical records are a physician’s best defense. Good records are legible. They document informed consent, treatment course and plan, and note review of lab work, diagnostic studies, and any current medications the patient is taking. They record phone calls and missed appointments. These entries should be timely and accurate. Alterations or additions to the record after a suit is threatened or filed are a major mistake, and may automatically result in a loss in a situation which otherwise might be salvaged.

Personally Review Diagnostic Tests

Delay or failure to diagnose a lesion may result in a suit. For example, MR scans or a biopsy may be essential in establishing the correct diagnosis of an orbital tumor. Ideally, the surgeon personally reviews imaging studies with the radiologist and biopsy results with a pathologist. A puzzling or unexpected diagnosis based on an imaging study or biopsy should provoke further studies or review with additional consultants prior to instituting therapy.

Seek Second Opinions for Difficult Situations

Referral of a difficult patient or a patient with a difficult problem can save a physician from a lawsuit. Even though the oculoplastic surgeon may see him or herself as the “end of the line” in a series of referrals, there is usually another physician (perhaps in another city or state) with special expertise on a given problem. Just sending the patient for a “second opinion” may help to defuse an unpleasant situation, provided the second doctor does not make disparaging comments about the referring doctor’s care.

Finally, do not despair. Despite the best efforts of a physician, claims will occur. Such is the risk of practicing medicine in today’s world. Do not view a malpractice claim as a condemnation of your value as a person. Look at it as part of doing business. Contact and cooperate with your insurance carrier, and assure they provide you with the best legal help possible to resolve the situation.

Notes:
  1. Gonzalez ML, Emmons DW, Slora EJ(eds). Socioeconomic Characteristics of Medical Practice 1990/91. American Medical Association, Chicago. 1991.
  2. Bettman JW. Seven hundred medicolegal cases in ophthalmology. Ophthalmology. 1990;97:1379-84.
  3. Kraushar MF, Turner MF. Medical malpractice litigation in ophthalmology: The New Jersey experience. Ophthalmic Surgery. 1986;17:671-74.
  4. Gilbert MF. Unpublished data from the files of the Ophthalmic Mutual Insurance Co., San Francisco. 1991.
  5. Hawes MJ, Bible HH. The paranoid patient: Surgeon beware! Ophthalmic Plastic & Reconstructive Surgery. American Academy of Ophthalmology, San Francisco. 1990;6:225-27.
  6. Bettman JW. Legal considerations. In Stewart WB (ed): Ophthalmic Plastic & Reconstructive Surgery. American Academy of Ophthalmology, San Francisco. 1984:45.

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