Article

Limit lawsuits by mitigating risk

A trial lawyer discusses his experience with reducing litigation risks from surgical complications.

When our firm opens a new litigation file for an ophthalmologist, we assume we will take the case to jury verdict two to three years later. That’s because the vast majority of cases we handle are defensible and do not involve malpractice. A surgical complication, by itself, does not constitute malpractice. Malpractice only occurs when there is a departure from the standard of care. Surgical complications occur every day without a departure from the prevailing standard of care. As a result, we try a lot of ophthalmology cases, many of which involve complications. We have averaged three to four jury verdicts annually — over the past 25 years. Approximately 5% of our cases are tried each year, while a significant number are dismissed on motion and discontinued. Annually, we settle fewer cases than we try.

The experience of defending these cases and taking them through discovery, including depositions, has revealed recurring patterns associated with lawsuits in ophthalmology, particularly in the administration and treatment of patients. This article discusses pre-complication and post-complication risk reduction strategies.

CULTIVATE YOUR REFERRAL AND COVERAGE NETWORKS

Ophthalmologists routinely refer patients to other ophthalmologists, more so than other medical specialties. This is due in part to the highly specialized nature of the practice and the need to refer patients for a wide range of sight-threatening pathologies. If you’re an anterior segment surgeon, you’ll need a vitreoretinal, oculoplastic or glaucoma specialist for certain patient referrals. If you’re a vitreoretinal surgeon, you may need a more highly specialized retina surgeon, neuro-ophthalmologist or glaucoma surgeon.

It’s also important to have a referral specialist who knows how to speak to your patient about his or her condition. Comments the specialist makes to your patient after receiving your diagnosis, or after the complication occurs, may determine whether the patient runs to a plaintiff’s attorney. According to the many hundreds of patient-plaintiffs we have deposed, the subsequent treater makes comments that an information-hungry patient considers gospel. Therefore, you need someone comfortable with speaking about a posterior capsule rupture, the discovery of moderately advanced glaucoma or a retinal detachment close to the macula. You want good communication, but also positive spin and for the patient to come back to you for continued follow-up.

A recent trial illustrates the importance of a reliable referral consultant. Our client, an anterior segment surgeon, performed two uneventful cataract extractions and then followed the patient, who had a history of posterior vitreous detachment. The surgeon eventually diagnosed a retinal detachment and promptly referred the patient to a vitreoretinal specialist, who was covering for our client’s usual consultant. The covering doctor’s intake notes indicated an initial status and prognosis that was much worse than our surgeon’s referral note. After the specialist made the retina repair, the patient’s visual acuity permanently dropped to hand motion. The patient then sued our client, the cataract surgeon, not the covering vitreoretinal specialist. Later, during the discovery period, an examination by our vitreoretinal expert discovered that there was subretinal perfluoro-N-octane in front of the macula, prohibiting good vision. This explanation was never given to our cataract surgeon and, apparently, not to the patient! The lack of rapport between our referring cataract surgeon and the vitreoretinal specialist prevented a clear explanation.

Along with your consistent referrals to the specialist, you need a detailed understanding regarding your practice’s administration of patients, communications and records transfer to better treat and communicate with your patients. This should be done on a more formal basis, meaning between peers: office administrator to fellow administrator. While experienced ophthalmologists can simply examine the patient to determine ophthalmological history, those with fewer years on the job leave much to chance if no prior communication, let alone clinical charting, goes with the patient to the specialist’s office.

Those ophthalmologists who do not see their own post-complications on day one should take similar advice. Numerous lawsuits have involved ophthalmologists and optometrists covering for a peer. In these situations, the covering professional either fails to communicate with the patient properly or takes the position that they are merely reporters of conditions, instead of providing needed treatment. We see incomplete assessments or no treatment, and patients communicate to us their dissatisfaction in feeling abandoned at a critical time. When ophthalmologists aren’t confident in the competence and dedication of their potential back-up, they are better off rearranging their schedule to see their own postops. No one can provide better care to your patient than you, especially after a complication; a certain level of hand-holding at these times can strengthen the physician-patient relationship.

USE THE INFORMED CONSENT PROCESS

When an ophthalmologist uses a tailored informed-consent discussion and document that speaks to the complication that occurred, the chance that a plaintiff’s attorney will take the case is greatly reduced, regardless of what happened during the surgery or the skill of the surgeon. Good informed consent can reduce two separate actionable claims: medical malpractice and lack of informed consent.

Ophthalmology surgery usually is an elective procedure that requires a traditional and individualized litany of risks. Do not rely solely on the consent documents of the ASC or the hospital, since those protect the institution and are generalized — you need a customized discussion and document. Both should cover the standard five topics:

  • current condition
  • proposed treatment
  • risks
  • benefits
  • alternatives of the proposed treatment.

Your customized form should include standard risks and any other risks that occur via your hands due to your level of skill or technique, with the proviso that the list is not complete (“…including, but not limited to…”). You can draft such a consent form for every variety of invasive and noninvasive procedure that exposes the patient to potential complications; you cannot “over-consent.” Surgeons are concerned about frightening away patients who need surgery, but, in every state, the surgeon has the legal obligation and the ethical requirement of providing this information. Moreover, when handled properly and with appropriate estimates of risk remoteness, patients should view your manner as more professional.

The oral discussion that takes place between physician and patient before the document is read and signed can also solidify a physician-patient relationship. While this might sound superfluous to the high-volume surgeon, our experience with patient-plaintiffs leads us to conclude that poor communication, unrealistic expectations and lack of one-on-one risk discussions are common patterns for cases in suit. Rarely does the plaintiff testify at deposition or trial that she was told about the risks; sometimes because she forgot, sometimes because she is lying and sometimes because the information was never properly communicated. A customized form listing the five areas above, signed and dated by the patient before the date of surgery, eliminates this issue and significantly reduces your risk of getting sued. Do not forget to document the initial oral informed consent discussion on the chart or in the EMR.

STRATEGIES TO REDUCE THE RISK OF LITIGATION POST-COMPLICATION

Your operative report

Malpractice cases often commence years after the events leading to the alleged harm to the patient. The trial lawyer’s job is to reconstruct from records, from custom and practice, and from memory the physician’s decisions taken at the time the patient was treated. With a well-drafted operative report, this task becomes easier. Malpractice verdicts are less uncommon when good notations can help show the reason for the judgments made, and that the physician followed standard of care.

SOME OF LARGEST LOSSES AGAINST OMIC-INSURED YOs (1987-2014)
Indemnity Payment Claim Description YO’s Age (Gender)
$750,000 Failure to diagnose hemorrhage post blepharoplasty 35 (M)
$675,550* Complications following retinal detachment surgery 35 (M)
$575,000 Delay in diagnosis/treatment of retinopathy of prematurity 32 (M)
$430,000* Fire in operating room during ptosis surgery 35 (M)
$425,000 Orbital hemorrhage post-ptosis surgery 31 (F)
$375,000 Failure to treat endophthalmitis post-cataract surgery 32 (F)
$350,000 Improper treatment of glaucoma 34 (M)
$350,000 Improper performance, LASIK surgery 34 (M)
$350,000 Negligent orbital fracture repair 33 (M)
$325,000 Failure to diagnose foreign body resulting in enucleation 34 (M)
$300,000 Macular hole due to negligent retinopexy 35 (M)
* Juries determined two decisions; the rest were settlements. A young ophthalmologist discusses her experiences with being sued in A defendant's manifesto: Forewarned is forearmed. This chart, and the chart on A defendant's manifesto, were derived from the OMIC’s Risk Management Digest. 2015; 25;4:4-5.

When I try a case, I blow up the operative report on a board or project it on a screen, and the defendant physician and I review it line by line in front of the jury. The surgeon stands with me as I ask the questions I know the jury is thinking, such as:

  • Why didn’t you attempt to retrieve the nucleus from the vitreous?
  • Why didn’t you place an IOL in the capsular bag?
  • When did you see the dark red shadow behind the capsule that made you abort the procedure and close the corneal wound?
  • Why did you wait several days to remove the blood from the choroid?

Plaintiff’s experts create malpractice theories from errors or gaps in the operative report. Therefore, the operative report should, along with customarily required information, accurately describe the following:

  1. chronology of events
  2. basis for the surgeons’ decisions
  3. complications
  4. accomplishment of all tasks.

The last is particularly important, to avoid the allegation that some unfinished task precipitated the complication; for example, “all Healon was removed” or “the IOL was dialed into position.”

I recently defended a surgeon who used a posterior-assisted levitation technique in an unsuccessful attempt to prevent the entire nucleus from falling into the vitreous. The dropped nucleus and a bleed from the sclerotomy he created necessitated referral to a vitreoretinal surgeon, who in turn performed two vitrectomies and got more hemorrhage and vision loss. Fortunately, the reasoning for his actions was well-documented in the operative report, as was the informed consent for this mature cataract. The jury understood the need to take measures to prevent the entire nucleus from falling. The defendant surgeon described the complications forthrightly, documenting the reasoning for his maneuver and telling the patient and family what happened. The plaintiff argued to no avail that the lens already slipped into the vitreous by the time the sclerotomy commenced 3 cm from the limbus.

If the operative report shows any irregularity, the plaintiff will allege that it is intentional. Examples include a delayed dictation, leaving out a significant maneuver or technique, inadequate description of the complication or if the document appears to be purely boilerplate. The surgeon must make time to dictate a careful and complete report, even if complications can upset the surgeon’s routine and result in delayed dictation. While complications are defensible, sloppy paperwork will make the defense difficult.

Postop day one

A significant number of suits we see involve a covering physician evaluating the patient on postop complication day one. The plaintiff’s depositions in these cases reveal a variety of awkward interactions.

The covering physician is required to diagnose the complication, document it and communicate it to the patient. These responsibilities are difficult to accomplish for the surgeon, let alone a covering physician. Inappropriate or insufficient discussions can lay the groundwork for a suit. Therefore, the operating surgeon should see his complications postop day one and as often as necessary thereafter.

Close follow-up and referral

Patients who have complications often require closer follow-up than routine patients. Physicians risk litigation when they fail to accommodate patients who desire more frequent examinations and discussions. Because vision or cosmetic appearance is a frequent issue, the complication patient wants a quick solution. It’s the surgeon’s job to explain the need for delay, healing and, sometimes, referral.

Once the surgeon refers a worried patient to a specialist, the risk of a suit increases. Physicians should not refer patients for inappropriate reasons, such as eliminating a high-maintenance patient post-complication. Appropriate referrals should be made when, among other valid reasons, the surgeon requires expertise or knowledge that he/she cannot deliver to the patient competently.

I recently defended a bilateral ptosis surgery case in which the claim was overcorrection in one of the operated eyes. The surgeon performed two suture removal procedures before referring the patient to a former instructor and mentor. The latter performed a subsequent exploratory procedure but otherwise treated the patient conservatively.

The patient then received three more surgeries on the same eyelid by another oculoplastic specialist. The trial included the issue of when referral is appropriate. In this case, the surgeon attempted to correct his own complication before referring out to a specialist for help reducing the overcorrection. The surgeon’s referral timing was appropriate, as were the consultant’s notes and comments to the patient. Nevertheless, the defendant surgeon advised that, if he had a do-over, he would have held on to the patient longer and insisted on a more aggressive massage regimen for the upper eyelid — the degree of overcorrection was minimal, and massage softening and gravity would eventually have brought the lid down.

The outcome here was a defense verdict. Surgeons need to be mindful of referring away their complications too early, often because patients want a quick fix. In our case, the surgeon made the referral to appease the patient.

Keep in mind that referrals made to remove a problem patient from the office calendar can bring the charge of abandonment and, if reported, can stir the interest of the state disciplinary body.

CONCLUSION: COMMUNICATE AND DOCUMENT

It should come as no surprise to most ophthalmologists that physician-patient interaction and good charting are key elements to litigation risk reduction. Yet physicians with successful practices occasionally fail to control what is said about their treatment to patients by other professionals.

The risk of litigation increases when another professional treats your patient, particularly when a complication has occurred. Keeping complication patients close to you reduces risk, as does charting your communications, especially informed consent.

We routinely defend complications to defense verdicts, but defending complications becomes more difficult when the informed consent is not documented and the operative report fails to disclose key judgement decisions. When complications occur, communicate and document! OM

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