Risk Management

Surgeon Responsible for Unreported Adverse Event

Ryan Bucsi, OMIC Senior Litigation Analyst

Allegation

Negligent retinal detachment surgery resulting in permanent retinal detachment.

Disposition

Case settled for $190,000.

Case summary

A 49-year-old female patient presented to an OMIC insured on an emergency basis with complaints of a dark semicircle and haziness for five weeks, which she described as a curtain over her left eye. Visual acuity was 20/80-1 with a diagnosis of rhegmatogenous retinal detachment requiring surgery. The patient was referred to another OMIC insured for the surgery. The first contact that the OMIC-insured retinal surgeon and his surgical assistant (another OMIC-insured ophthalmologist) had with this patient was on the day of surgery. This was the assistant’s first day scrubbing in to a case. The surgeon informed the patient that his assistant would participate and assist in the surgery. The patient did not object. The surgeon and his assistant performed a repair of the retinal detachment in the left eye with 23-gauge pars plana vitrectomy, endolaser, cryopexy, and fluid-15% C3F8 gas exchange. The circulating nurse and surgical technician (both insured by the hospital) assisting the surgeon had done so for many years. The assistant introduced the surgical instrumentation into the eye. The principal stages of the procedure were virtually completed, including the trimming of the vitreous and vitreous base and release of traction to the retina breaks, when there was a sudden tugging of the cord connected to the light pipe while it was still positioned inside the eye. This caused the instrument to be dislodged from the assistant’s hand. The full length of the probe ended up inside the eye. An iatrogenic linear retinal break superior to the optic nerve was noted. In a subsequent surgery, the surgeon performed a 28-gauge pars plana vitrectomy, membrane peel, retinectomy, silicone oil endotamponade, and sub-tenon triamcinolone acetonide injection in the left eye. Laser treatment around the retinal break was also performed. Despite the surgeries, at the time of the surgeon’s last examination, the patient’s retina remained detached and her visual field remained limited secondary to loss of blood flow to a large area of the retina encroaching upon the center. Final visual acuity in the left eye was 20/200.

Analysis

There was definite liability in this case but who would be held responsible? After receiving a notice of intent, the surgeon and his assistant claimed that it was the surgical technician who accidentally tugged on the cord, but there was no indication in the record that she precipitated the adverse event. The surgeon claimed that following the surgery he had discussed the event with another nurse at the hospital, but this was not documented and the nurse had no recollection of the conversation. OMIC defense counsel concluded that the two physicians would bear the brunt of liability in this case. Counsel noted that liability would have been clearer if, right after surgery, the event had been documented in the operative report and an incident report had been filed with the hospital. The surgeon claimed he did not want to upset the tech, who he felt would have taken it very hard. Counsel feared that a jury would take a negative view of the physicians’ failure to document the tugging on the cord by the surgical technician until after they received an intent to sue. Both the plaintiff attorney and the hospital attorney could make the argument that blaming the technician was simply a way for the doctors to avoid responsibility. If a jury believed this was true, it could anger the jury and result in a higher than expected verdict. For this reason, the case was settled.

Risk management principles

The physicians could have avoided liability for this injury by documenting the event in the operative note and filing an incident report with the hospital following the procedure. Not doing so prevented the hospital and staff from learning from this adverse event and aroused suspicion when the surgeon later placed blame on the technician. The fact that there was no documentation of the surgeon’s version of events until after a notice of intent was received made this case impossible to defend. Incident reports are generally part of a confidential peer review process; to protect their confidentiality, do not refer to them in the medical record or photocopy them.