Dos and Don’ts Following Notice of a Claim

 By Jerome W. Bettman Sr., MD

Digest, Fall, 1995

A chilling letter arrives at your office:

Dear Doctor:

My client, who has been under your care for the past 10 months, has suffered loss of vision and pain in her right eye due to your neglect, improper therapy, and medical negligence. It might be possible to reach a settlement of this matter if you telephone my office promptly.

Very truly yours,

Plaintiff’s attorney

What should you do if you receive such a letter? First, do not go into shock. These allegations are probably not a reflection of your ability to practice ophthalmology or your character. You are one of a large group of ophthalmologists, the majority of whom are excellent practitioners, who have had a claim brought against them. Approximately one in six physicians are sued every year in this country. Among OMIC insureds, 6 to 7% will incur a claim over the next year.

Second, do not think that you are going to lose your life savings or that your children will not be able to attend college. The vast majority of claims against physicians never come to trial and those that do are usually won by the defense.

However, it is important to realize that certain imprudent actions by a physician after receiving notice of a claim may actually encourage a plaintiff’s attorney to proceed with a claim that otherwise might have been dropped, and it may make defense of the case more difficult.

Notify Your Insurance Carrier

The most important first step you can take is to contact your insurance carrier immediately. It is a good idea to make this contact even if there is only a threat of a claim. Your insurance company will not penalize you for this; in fact, all carriers encourage their insureds to contact them early so they can provide advice and support. Speak to your carrier’s attorney or claims agent; their advice and services can be invaluable.

If and when a lawsuit is filed, your carrier will be responsible for assigning a medical malpractice defense attorney to your case. Upon reporting a claim or lawsuit to OMIC or your carrier, insureds will be asked to forward a complete copy of the patient’s medical record. This is necessary so the records can be reviewed to determine if there is any basis to the patient’s claims.

Do not discuss any aspect of the case with anyone other than a representative of the carrier or, if a law firm has been assigned to handle the matter, to the attorney representing you.

Do not contact the patient’s attorney. If an attorney representing the patient attempts to contact you, refer him or her to your insurance carrier. The attorney knows what he or she wants; you do not. Do not contact the patient. After a formal claim is filed, the patient becomes a legal adversary. If the patient contacts you, the best approach is to simply state in a friendly manner that in light of the fact that a claim has been made, your attorney advises you not to discuss the case. The patient might even request that you proceed with his or her care. It is probably better to decline, although there are some defense attorneys who believe that continuing the physician-patient relationship can be advantageous. The better decision, however, is to offer to give the patient the names of other ophthalmologists who can provide care and to make a summary of the patient’s records available to the new ophthalmologist upon proper request.

If you must discuss the case with subsequent or current treating physicians, limit your discussions to the medical facts surrounding the patient’s care and treatment, and refrain from discussing any medical-legal issues.

Never Alter the Medical Record

The plaintiff’s attorney no doubt will request a copy of your records. It is mandatory that you comply with this request, but be sure that you have the patient’s signed permission to release the records. Take the records out of the file yourself and go through them to be certain no extraneous material is included. Maintain, absolutely, the integrity of the patient’s medical record. Under no circumstances should you alter the records in any way. Even though you might think that a change made in the most skillful manner will not be detected, it will be. Most records have been copied previously for insurance purposes. If the plaintiff’s attorney gets a copy of these original records and can prove that the records were later altered, you will most certainly lose your case.1

After the record has been copied for the plaintiff, start a new one. Keep the original record in a safe and secure location. Do not place correspondence from OMIC or your attorney in the patient’s medical record. Start a legal file which you maintain separately from the medical record.

Do not investigate the medical literature relevant to this case unless advised to do so by your attorney. Such an investigation can bring unfavorable literature into evidence. An article or book may state something favorable to your case on one page but something unfavorable on another page. Literature is considered hearsay in the law and is not admitted into evidence unless you refer to it. You will probably be asked by the opposing attorney what literature you have read in conjunction with the case.

Do not talk or write about the case to other physicians, your office staff, or acquaintances. They really are not that interested in the specifics of the case, and if the matter does come to trial, there is potential embarrassment if you have to admit that you discussed it with third parties who may be called to testify.

Seek Support for Malpractice Stress Syndrome

Do speak to medical colleagues and others who are significant figures in your life about the stress you are feeling if you perceive that you are emotionally troubled by the suit. This is a time to benefit from sources of support within your family, church, and friends.2 A malpractice stress syndrome has been recognized. Defendant physicians may develop a negative self-image, feel misunderstood, or have decreased self-confidence. A lawsuit has great emotional impact, and the physician may experience anger, tension, depression, irritability, insomnia, decreased appetite, and difficulty in concentration. In some areas of the country, self-help groups have been organized for physicians involved in litigation. The sharing of experiences with others who have been involved in suits can be helpful.3

OMIC’s claims staff works closely with insureds during the course of a claim or lawsuit. Insureds are encouraged to contact their OMIC claims representative if they have any questions or need assistance. Additional support and guidance during this trying time can be found in the recently published Litigation Handbook for The Ophthalmologist. Jointly created by OMIC Claims Committee members and defense attorneys, this booklet gives a comprehensive overview of the litigation process. A complimentary booklet is sent to OMIC insureds who incur a lawsuit or who request a copy. Others may obtain the booklet by contacting the OMIC Risk Management Department at 800-562-4652. The cost is $10 for members of the American Academy of Ophthalmology and $15 for nonmembers.

Notes:

Bettman JW and Demorest BH. Practice Without Malpractice in Ophthalmology. Ophthalmic Mutual Insurance Co., San Francisco. 1995: 73-76.

Anderson RL. Discovery and Deposition, in Bettman & Tennenhouse (eds.), Medicolegal Aspects of Ophthalmology. Int. Ophthal. Clinics: Little, Brown & Co., Boston. Winter 1980: 68-69.

Richards B. Doctors Seek Crackdown on Colleagues Paid for Testimony in Malpractice Suits. Wall Street Journal. Nov. 2, 1988: B1.

Motion for Summary Judgment

OMIC Digest, Summer, 1991

ALLEGATION: Insured ophthalmologist allegedly breached the standard of care in treating a patient later diagnosed with maxillary sinus carcinoma.

DISPOSITION: Dismissed.

Background

Just as a disappointing medical outcome does not necessarily indicate physician malpractice, the filing of a lawsuit against a physician does not always mean years of litigation and court proceedings. The burden of proof still rests with the plaintiff to prove that there was a breach in the standard of care. There are times when defense counsel can have the matter dismissed by filing a Motion for Summary Judgment.

A Motion for Summary Judgment is a device designed to obtain a disposition of a case on its merits without resorting to a long trial. In American jurisprudence, the jury is responsible for weighing the facts and the judge is responsible for deciding the legal issues. In essence, the Motion states that there are no issues of fact for a jury to decide and that only questions of law are involved, allowing the judge the latitude to make an independent decision.

OMIC has been successful in having a number of lawsuits dismissed against insured physicians by securing a Summary Judgment.

Case Summary

The plaintiff was a 66-year-old woman with a history of heart disease and sinusitis. She was referred to the insured ophthalmologist by her family practitioner for evaluation of headaches and numbness around the right cheek. Examination revealed a definite impairment of sensation on the right side probably secondary to previous sinus disease. The left eye, however, had a pterygium which was excised. The patient failed to return for follow-up and never returned to the insured’s care. Instead, she saw an ENT specialist who cleaned her left ear and prescribed medication. Five months after the pterygium excision, she saw an otolaryngologist who ordered a CT scan which revealed maxillary sinus carcinoma. Surgery was performed to remove the right eye and part of the jaw and roof of the mouth.

The plaintiff filed suit against the ophthalmologist, the family practitioner and the ENT specialist.

Outcome

OMIC filed a Motion for Summary Judgment accompanied by affidavits from experts setting forth the standard of care for the ophthalmological treatment of plaintiff’s medical condition, defendant’s compliance therewith and plaintiff’s alleged damages. In addition, the Motion argued that the plaintiff had failed to submit any expert testimony suggesting that the insured breached the standard of care or to raise any fact issues against the insured.

The court granted the Motion and ruled that the defendant ophthalmologist was entitled to judgment as a matter of law. The plaintiff elected not to appeal the ruling and the case against the OMIC insured was dismissed.

Risk Management Principles and Commentary

Instrumental in obtaining a dismissal was the patient’s chart which documented that the patient told the insured she was being followed by another physician for her sinusitis. This was critical in establishing that the OMIC insured acted within the standard of care and eliminated any issue of fact that he should have referred the patient to an ENT specialist. In addition, the insured charted the failure of the patient to return for a follow-up visit which also provided support for the granting of the Motion for Summary Judgment. The rules for Summary Proceedings to dispose of cases prior to trial vary from jurisdiction to jurisdiction. In most cases, a Motion for Summary Judgment is not a viable option for the defense because the parties do not agree on the factual situation. However, in those instances where the issues of fact have been determined and the evidence supports the defendant-physician’s care, a Motion for Summary Judgment can dispose of a case and conclude the matter once and for all.

Failure to Prove Negligence in Treatment of Macular Degeneration

Digest, Spring, 1993

ALLEGATION  Insured ophthalmologist allegedly failed to properly assess and treat a subretinal bleed. In addition, there were allegations that the insured negligently performed laser surgery, and failed to warn patient of the potential risks and complications of surgery.

DISPOSITION  Charges were dismissed by the plaintiff during trial.

Background

To prevail in a medical malpractice suit, the plaintiff has the burden of proof of demonstrating the following four elements for a finding of negligence:

• That a physician-patient relationship existed (i.e., a legal duty existed);
• That the physician breached the relationship by rendering treatment which did not fall within the standard of care;
• That it was the physician’s treatment which caused the patient’s injury;
• That the patient did indeed suffer damages as a result of the physician’s care.
• Failure by the plaintiff to prove any one of these four elements usually results in a finding in favor of the defendant.

Case Summary

The patient was an elderly female who saw the insured, a general ophthalmologist, with the complaints of decreased vision in the left eye of three weeks’ duration. Vision was hand motion only. The patient had suffered from poor vision in the other eye for many years as a result of a perforating injury. The ophthalmologist noted age related maculopathy in both eyes, and performed laser treatment.

Four months later, the patient presented with an active blood vessel membrane that appeared to extend through the center of the fovea of the left eye, and a subretinal hemorrhage of the left eye. The patient was treated for conjunctivitis and referred to a macular photocoagulation study group; however, the blood vessel membrane was too large to place the patient in the study. A month later, a retinal specialist diagnosed macular degeneration and referred the patient to a vision rehabilitation center. The patient sued the general ophthalmologist.

Outcome

During the trial, it was the plaintiff’s contention that the ophthalmologist had misdiagnosed macular degeneration and had incorrectly performed laser surgery without the patient’s informed consent. The defense countered that the diagnosis was correct, that the treatment was appropriate, and that the ophthalmologist had informed the patient of the potential risks and complications of laser surgery. As the trial progressed into its fifth day, and it appeared that the testimony was favoring the defense, the plaintiff was informed by her attorney and the judge that she would be responsible for trial and mediation costs if her case was lost. The plaintiff agreed to dismiss all charges.

Risk Management Principlesand Commentary

Had a verdict been rendered in this case, it is unlikely there would have been a finding of negligence. Of the four elements necessary to establish medical malpractice, the plaintiff was able to demonstrate only that a physician-patient relationship, a legal duty, existed.

The defense, on the other hand, was able to demonstrate that there was no breach in the standard of care because the diagnosis was correct and because the laser surgery was acceptable treatment falling within the standard of care for subretinal neovascularization. Furthermore, the defendant-ophthalmologist testified convincingly that the patient was informed of the risks of surgery.

Finally, the defense was able to show that the patient’s vision loss was caused by macular degeneration and subretinal neovascularization, not by the ophthalmologist’s treatment. Since the plaintiff could not demonstrate that the ophthalmologist’s treatment was what caused her alleged injury, she thereby failed to prove another of the essential four elements for a finding of negligence.

Workers’ Compensation Coverage and the Law

By Jillian Brandt, CIC
OMIC Insurance Agency and Group Products Manager

[Digest, Winter 1998]

Loss of income due to accidents on the job has been a major problem for workers since the industrial revolution. Employers’ liability laws, adopted first by Britain in 1880 and later by most other European nations, held employers responsible for injuries caused by defective machinery or by negligence on the part of management. In the United States, workers’ compensation coverage increased greatly after Congress passed the Federal Employees’ Compensation Act of 1916, which provided benefits for certain federal civilian workers or their survivors in connection with injuries or death on the job. Today, most states require employers, including ophthalmic practices, to provide compensation coverage if they employ more than a minimum number of workers (usually three).

Who is Covered?

Employers are required to provide workers’ compensation coverage for all full-time permanent employees and for leased temporary and contract employees, unless separate insurance is provided elsewhere. Usually the leasing or temporary employment agency will provide coverage for employees they lease and charge the employer an inclusion fee. Contract workers can be treated either as a consultant in which the worker is responsible for his or her own coverage, or as a short-term employee in which the employer provides the protection. Additionally, executive officers of a corporation (defined as the president, vice president, secretary, treasurer or spouse) are covered under workers’ compensation laws unless, as some states allow, they elect not to be. On the other hand, a sole proprietor or partner is usually not subject to the law but can elect to be covered in most states.

What is Covered?

The purpose of workers’ compensation coverage to provide pay and medical benefits to workers who suffer an occupational injury or to their dependents in cases where death occurs. “Occupational injury” is defined in many statues as an injury “arising out of and in the course of employment.” Generally translated, this means that for an injury to be compensable, it must arise out or a risk reasonably related to employment or occur while the employee is at work, during work hours and while engaged in work he or she has been employed to do. Injuries that are deliberately self-inflicted or the result of deliberate failure to use safety equipment or of intoxication are not compensable. Claims alleging any type of discrimination are also excluded, as such coverage would be provided under an Employment Practices Liability Insurance policy.

There are four categories of compensation benefits payable to the injured worker or the workers’ dependent: medical, disability, rehabilitation and death. Each state has its own valuation method to determine coverage benefits; however, all states share one common goal: to return the injured worker to health and work as quickly as possible. Injured workers normally receive about two-thirds of their salary while disabled and may be eligible for job training if their injury makes it impossible to return to their previous line of work.

Hazards in the Medical Office

Although medical offices present fewer occupational hazards then many other workplaces, certain types of on-the-job injuries do tend to recur and to constitute the basis of most claims. Typically, these involve repetitive stress injuries such as carpal tunnel syndrome (CTS), back strains, slips and falls, and needle stick injuries. CTS occurs when there is chronic pressure on the median nerve in the wrist area and is most common in workers whose work involves repetitive hand movements such as computer keyboard operators. Because computers are an integral part of the office environment, it is important to take steps to safeguard workers from injury:

• Make sure each computer terminal and workstation is ergonomically designed.
• Educate employees on the importance of posture while sitting at the computer.
• Rotate job duties to allow breaks from data entry.

Most back strain injuries and slips and falls can be avoided if the office is kept clean, organized and free of clutter. Make sure supplies are easily accessible. Stacking items on top of file cabinets might work for long-term storage but is not a good idea for daily supplies. Minimize opportunities for slips and falls by putting everything in a designated place – stress organization so workers are not injured because of carelessness. Needle stick injuries are usually the result of haste. Allow adequate time and care during these procedures to ensure employee and patient safety.

How are Rates Determined?

Insurance companies determine rates for workers’ compensation coverage on the basis of an employers’ estimated payroll, claims history and anticipated exposure during the current policy period. This information allows the carrier to establish an estimated premium at the beginning of the year. At the policy’s expiration, the insured’s actual payroll records are audited to determine the final premium, and the insured either pays an additional premium or receives a refund. In most states, payroll is defined to include all remuneration, which means all wages, salaries, commissions, bonuses and paid time off. The average ophthalmic practice spends an amount equal to less than 2% of its payroll.

When employers of like kind come together to insure the exposures of all the group’s members, it is called group self-insurance. Group plans are subject to stringent regulatory requirements and can be arduous to set up. An alternative, known as a safety group, also provides group self-insurance but is easier to structure because it requires nothing more than participation of the group’s members. OMIC is currently developing a workers’ compensation safety group for ophthalmologists through The Hartford Insurance Group. If the group gains wide enough participation among ophthalmologists, it may be able to set rates based on the group’s experience along, resulting in lower average premiums than most ophthalmologists now pay.

In 1997, OMIC and the American Academy of Ophthalmology teamed up with The Hartford Insurance Company to offer the first workers’ compensation program for ophthalmologists. The program provides coverage for workers’ compensation and employers’ liability plus loss prevention and claims cost containment services.

For information on OMIC’s program, please contact OMIC at (800) 562-6642 or via email, omic@omic.com.

Delay in Performance of Retinal Detachment Surgery and Associated Nonmedical Issues

Digest, Summer, 1993

ALLEGATION  Insured ophthalmologist allegedly delayed retinal detachment (RD) surgery because patient was unable to pay for the surgery in advance. Plaintiff also alleged that the insured improperly performed RD surgery on the first eye and overtreated the second eye.

DISPOSITION  Jury verdict award for the plaintiff for an amount exceeding $500,000.

Background

During a medical malpractice trial, the professional ethics and credibility of the physician are under intense scrutiny by the jurors. Not only does the physician need to possess irreproachable ethics, but any perceived lack of credibility may doom defense of the case.

Case Summary

The patient was a 48-year-old highly myopic female who presented to the insured’s office with complaints of flashing lights, lines and floaters of two days’ duration in the left eye. An examination revealed a rhegmatogenous retinal detachment with a giant tear and multiple other retinal tears OS. The insured performed a minor laser surgery procedure. The next day, the patient was admitted to the hospital for bed rest and bilateral patching prior to surgery scheduled for the following day, which coincided with a holiday. Surgery was postponed a day, at which time the patient underwent scleral buckle with cryopexy, vitrectomy, air/fluid exchange, laser photocoagulation, and C2F6 gas injection OS. According to the insured’s records, the postponement of surgery was due to a shortage of qualified operating room personnel on a holiday. However, the patient later alleged that surgery was delayed because the insured demanded to be paid before he would perform the surgery, and the patient was unable to get the money on a holiday.

The following month, an examination revealed a retinal detachment in the patient’s right eye. When laser treatment proved unsuccessful in repairing the detachment, the insured performed a scleral buckle, pars plana vitrectomy, retinal cryopexy, endolaser photocoagulation, air/fluid exchange and gas injection. The patient was referred postoperatively to a retinal specialist who confirmed that both retinas were attached. When the specialist last saw the patient four months later, both retinas were flat and attached. V.A. was 20/25 OD and 20/60 OS.

Five months later, the patient was examined by another ophthalmologist who found the patient’s visual acuity to be 20/40+3 OD and 20/80+ OS. A 22 to 23 prism diopter deviation was measured, which the ophthalmologist opined could cause significant double vision and make driving difficult, especially at night. Strabismus surgery was recommended.

Outcome

In her suit against the operating ophthalmologist, the plaintiff’s most damaging claim was the insured’s alleged demand for prepayment of the first retinal surgery, an allegation supported by the testimony of the plaintiff’s father and boyfriend. The insured denied that the delay was financially motivated and maintained that he delayed surgery until after the holiday because he could not obtain a surgical team experienced in vitrectomy procedures. However, the nurses who assisted in the patient’s surgery following the holiday testified that they did not have special training in retinal and vitreous surgery either.

During the trial, the plaintiff presented psychiatric evidence of major depression resulting from her fear of losing vision. Plaintiff also presented testimony from a vocational expert that she was unable to return to her previous employment as a computer salesperson following surgery.

Risk Management Principles and Commentary

Typically, “nonmedical” reasons came into play when a jury awards a large verdict against a physician in the absence of convincing evidence of actual injury to the plaintiff. In this case, although the defense was able to argue that the ophthalmologist followed the standard of care in performing the two RD surgeries, plaintiff’s counsel successfully attacked the defendant’s credibility and judgment on two issues:

• The alleged demand for prepayment.
• The reason for the delay in surgery.

This case might have been successfully defended on clinical issues alone; however, the associated nonmedical issues probably were seen by this particular jury as extremely damaging to the defense and most likely contributed to the high jury award.