Risk Management

Comanaging Refractive Surgery Patients (Part 2)

By Paul Weber, JD
OMIC Risk Manager

[Digest, Winter, 2000]

Bilateral simultaneous LASIK surgery is being offered in Canada for as low as U.S. $999, and American citizens are traveling across the border to take advantage of these alleged “savings.” Various scenarios are now arising in which ophthalmologists in the United States are being asked to provide preoperative and/or postoperative care to these patients. This column addresses some of the risks arising from this new form of comanagement.

Q What are the risks of providing preop and postop care to patients who have surgery in Canada?
A Anytime you enter into an arrangement with a LASIK patient to provide preop and postop care, you are exposing yourself to a possible claim for care you provide that may “cause” or “contribute to” a poor outcome or result. Sometimes it is unclear exactly what caused an “injury” or contributed to a poor result in a LASIK patient. The U.S. ophthalmologist may not know details of the actual surgery (flap thickness, residual bed, etc.). Was it poor surgical technique by the Canadian surgeon? Was it an improper work-up and poor patient selection by the U.S. ophthalmologist? In most states in the U.S., a physician who causes or contributes to an injury can be held liable for negligence. Under the theory of negligent referral, an ophthalmologist in the U.S. can be held liable for the surgical error of a Canadian physician or laser center if the U.S. ophthalmologist actively referred patients to the Canadian physician or center.

Q Can a Canadian physician be sued in a United States court for medical malpractice?
A As a practical matter, it is not likely that a Canadian physician will be sued in the United States for medical malpractice. American courts usually have no jurisdiction over foreign citizens residing outside the U.S., and plaintiff lawyers, who sue physicians on a contingency fee basis, are simply not going to spend a great deal of time chasing a foreign defendant if there is a more readily accessible defendant. If a patient has a poor result after LASIK surgery performed in Canada, the U.S. ophthalmologist who provided the preop or postop care is the most likely target defendant.

Q What can I do to minimize my risk of a claim if I see patients pre and postoperatively who are having LASIK surgery in Canada?
A The most important issue to address with these patients is the scope of care that you agree to provide as well as that which you specifically do not agree to provide. To avoid any misunderstandings, there must be a very carefully drafted informed consent document stating that you are only providing pre and postoperative care and delineating what that care entails. Include a disclaimer statement that you take no responsibility for the outcome of the surgery or surgical services provided in Canada and inform the patient that regulatory oversight and safety guidelines differ in Canada. It is important to realize that even though you are not performing the surgery, you are deciding during the preop evaluation whether the patient is a good candidate for LASIK. Therefore, an informed consent discussion should take place in your office and the patient should sign a document informing of the risks, benefits, and alternatives to the procedure. Otherwise, the patient can claim that it was below the standard of care not to warn of these risks since you knew the preop evaluation was specifically for the purpose of LASIK surgery.

Q Am I required to provide postoperative care to a LASIK surgery patient who simply makes an appointment with my office?
A Even if you already have an established relationship with a patient, there is no “duty” to take on the postop care of another surgeon whether surgery was performed in Canada or the U.S. you do decide to see the patient, all the risks discussed above apply and you will need a carefully written informed consent document defining what postoperative care will and will not be provided.

Q Should I treat a patient who has had a complication or poor result from surgery in Canada?
A This situation is more problematic than the patient who simply shows up for routine postoperative care. First advise the patient of the option of returning to the surgeon for treatment of the complication or enhancement. This may not be possible if the patient presents with an emergent problem requiring immediate treatment; however, once the problem is stabilized, the patient should be advised of this option. If the patient prefers to have you provide further surgery, you must have a comprehensive informed consent discussion to evaluate whether the patient has reasonable expectations and is likely to be a cooperative participant in his or her follow-up care.