Risk Management



Two Cases of Entity Liabiilty

By Ryan Bucsi, OMIC Senior Litigation Analyst, Digest, Spring 2011

CASE 1

ALLEGATION: Post cataract surgery endophthalmitis due to unsterilized surgical instruments.

DISPOSITION: Case settled for $650,000.

CASE 2

ALLEGATION: Failure to assist an elderly patient resulting in a fall and femur fracture.

DISPOSITION: Case settled for $235,000.

Case 1 Summary

An OMIC insured performed an uncomplicated cataract surgery on a patient’s left eye. At the completion of surgery, one of the support staff present in the operating room noticed that the instrument tray chemical indicator was white and had not turned dark brown as it should at the completion of the autoclave sterilization process. The patient was not immediately informed of this problem as the consensus was that, while the instruments had not been autoclaved, they had been washed and cleaned and were likely not contaminated. Further, antibiotics had already been prescribed. At the postoperative day one examination, no signs of infection were present, and the sterilization error was explained to the patient. Three days later, during the second postoperative exam, the patient presented with complaints of sudden vision loss and pain OS. Endophthalmitis was diagnosed. A culture revealed the presence of pseudomonas aeruginosa, as did the instruments when they were cleaned in the ultrasonic bath unit without being autoclaved. Despite treatment of the infection with vitrectomy and intraocular antibiotic injections, the patient’s vision OS remained light perception only.

Analysis

Defense experts felt the entity’s liability was certain as there had been departures from standard medical practice, nursing practice, and internal protocols. A processing technician left a washed, non-sterilized tray of instruments in the autoclave room on a table next to the unit when the tray should have been placed on a cart marked non-sterilized. In the operating room, none of the three OR nurses verified that the indicator on the instrument tray had changed color before setting up the instruments for surgery. As a result of these errors, a $650,000 settlement was negotiated at mediation on behalf of the OMIC insured group.

Risk Management Principles

Patients have a right to know when an error has been made. In this case, the patient should have been immediately informed that the instruments used in her surgery may not have been properly sterilized. Immediate disclosure of such information is beneficial to both the patient and the health care provider and maintains trust between them. Advising a patient of complications that might occur and what symptoms to report can lead to earlier, vision-preserving treatment. As a result of this incident, the insured entity developed a protocol to assure that only surgical items that have been appropriately sterilized are used during surgery. One of the nurses in the operating room is now required to show the surgeon the tray of instruments to verify that the chemical indicator has indeed changed color, thus confirming appropriate sterilization.

Case 2 Summary

An elderly patient with macular degeneration was in an examination room with an ophthalmic technician following administration of dilating drops. The technician asked the patient to move from one chair to another. The second chair was on wheels and when the patient placed her weight on it, the chair slid out from under her and she fell. The patient fractured her femur and required surgery with extensive rehabilitation in a skilled nursing facility. She claimed over $100,000 in medical bills related to the injury.

Analysis

Liability was evident as ophthalmic treatment, via administration of dilation drops, and lack of patient supervision contributed to the fall. Defense experts criticized the technician, who, in supervising the patient, did not assess the need for assistance, offer assistance, or immobilize the chair for an elderly patient with impaired vision. The insured entity did facilitate the patient’s transfer to the hospital for care and was conscientious in immediately reporting the matter to the OMIC claims department. As a result, a suit was not filed and a settlement of $235,000 was directly negotiated with the patient’s attorney.

Risk Management Principles

Observing patients in the waiting room may help identify those who will need assistance maneuvering around the office. Caution should be exercised with elderly patients who have existing visual impairments. Assistance should be provided if it is necessary for an impaired patient to move around the exam room or to another location in the office. At the conclusion of the exam, the patient should be assisted in returning to the waiting room and to the supervision of the family member or caregiver responsible for the patient’s transport home.

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Best at defending claims.

An ophthalmologist pays nearly half a million dollars in premiums over the course of a career. Premium paid is directly related to a carrier’s claims experience. OMIC has a higher win rate taking tough cases to trial, full consent to settle (no hammer) clause, and access to the best experts. OMIC pays 25% less per claim than other carriers. As a result, OMIC has consistently maintained lower base rates than multispecialty carriers in the U.S.

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