Risk Management

Telephone consultation on minor patient with foreign body injury

RYAN BUCSI, OMIC Senior Litigation Analyst

Allegation

Failure to evaluate and treat a minor patient with a foreign body injury.

Disposition

Defense verdict at high-low arbitration. $175,000 paid on behalf of insured.

A minor patient sustained an eye injury when a metal fragment struck him while he was hammering a penny. The parents flushed his eye with water. The following day his pediatrician diagnosed decreased vision and a conjunctival hemorrhage. The pediatrician called the OMIC insured after hours and informed the insured that she did not see any signs consistent with a penetrating injury. The pediatrician stated that the cornea was intact with no abrasion and that the anterior chamber appeared intact as well. The insured specifically asked if this was a high-speed impact injury and the pediatrician responded that it was not. Our insured advised that he could not make a diagnosis over the phone but he suspected a possible conjunctival hemorrhage or an abrasion. The insured recommended antibiotics and follow-up with
the pediatrician or the emergency room if the condition did not improve. The insured informed the pediatrician that he was on call at the local children’s hospital emergency room and could see the patient that evening. The pediatrician did not ask the insured to see the patient nor did she tell him that she would instruct the patient to go to the emergency room. Six days later, the pediatrician informed the insured via telephone that a general ophthalmologist had examined the patient and had diagnosed a foreign body in the eye, confirmed by orbital CT. The patient was referred to a retinal specialist, who immediately performed surgery to remove the foreign body. The patient later developed endophthalmitis and underwent a corneal transplant but ended up with only count fingers vision.

Analysis

Plaintiff’s experts alleged that the insured should have advised the pediatrician to send the patient to an emergency room for a CT scan or MRI to determine whether there was a foreign body in the eye. Plaintiff also alleged that the pediatrician violated the standard of care by not immediately sending the patient to the emergency room. During her deposition testimony, the pediatrician testified, consistent with her records, that the patient’s vision had been drastically affected. The ophthalmologist, however, contended that he was not informed of any drastic vision loss during the initial phone conversation. The defense expert felt that the insured’s care met the standard assuming that his version of the phone call with the pediatrician was accurate. However, if the expert assumed that the pediatrician’s version of the phone call was accurate, then the insured failed to meet the standard. Our defense expert believed that any penetration of the globe by a foreign object should be treated as an emergency situation and that the delay in diagnosis caused the patient to experience significant vision loss. This was a case involving significant loss of vision in a minor and the defense was not comfortable taking the case to trial. Therefore, binding high-low arbitration was agreed upon. The case was heard by an arbitrator with a plaintiff high of $750,000 and a defense low of $175,000. The arbitrator ruled in favor of the defense and OMIC paid $175,000 to the plaintiff. The pediatrician settled her portion of the case for an undisclosed amount.

Risk management principles

The insured admitted that to meet the standard of care an ophthalmologist must examine a child who has experienced a drastic visual decrease following trauma. The defense expert indicated that he routinely examines children with such injuries. The crux of this case then was whether the ophthalmologist was informed that a drastic visual decrease had occurred. The pediatrician documented that she told the insured that vision in the patient’s eye had been drastically affected.

Our insured did not recall being informed of this but had no documentation to support his position. Fortunately for our insured, his lack of documentation did not keep the arbitrator from ruling in his favor. The defense attorney filed a motion challenging the establishment of a physician/patient relationship when the only involvement was a phone call. As in other OMIC claims, the court ruled that this relationship is clearly established when a physician gives advice about a specific patient. The court did note that a relationship is probably not established if a colleague calls and asks general questions, such as how to manage trauma cases. In any event, when consultations on specific patients occur, the best course of action is to document the information presented and the advice given.