Risk Management

Allegation of Consumer Deception Following Flap Complication

 By Randy Morris, JD

OMIC Claims Associate

Digest, Summer 2002

ALLEGATION Negligent performance of LASIK, resulting in wrinkled flap and vision loss.

DISPOSTION  Defense verdict on behalf of insured ophthalmologist.

Case Summary

A friend of a 47-year-old female patient arranged for her to have LASIK surgery by the insured. The patient resided in a different state and flew to the insured’s region for the surgery. Upon arriving at the insured’s office, the patient filled out the necessary forms and perused the brochures about LASIK in the waiting room. One of the brochures was from the laser center where the insured performed LASIK and contained a statement to the effect that doctors at the center had performed the first excimer laser surgeries in the area and were instrumental in training hundreds of other ophthalmologists. On the back of the brochure was a sticker with the insured’s name, address, and telephone number.

The patient had surgery on both eyes the following afternoon. During a post-op visit the next day, the plaintiff complained of blurry vision in the right eye. Slit lamp examination disclosed wrinkles involving the right flap. The insured had the patient return to the laser center the same day where she relifted and reseated the flap. At the second postoperative visit, the insured learned that the patient planned to return to her home state the following day. Arrangements were made for follow-up by an ophthalmologist in her area.

One week later, the patient was seen by the local ophthalmologist who found vision in the right eye to be 20/60 with some edema. Approximately four months later, another ophthalmologist diagnosed a wrinkled flap and gave the patient the option of wearing a contact lens or undergoing further surgery to treat the flap.

Analysis

The plaintiff’s case originally focused upon informed consent and the management of the wrinkled flap complication. Although the plaintiff had signed a three-page bilateral consent form, watched a video describing the procedure, and filled out a true/false questionnaire, she maintained there was no discussion between herself and the insured regarding the risks of LASIK. The insured disputed this version of the facts, and the plaintiff’s friend reluctantly testified that he had heard the insured discuss the risks with the plaintiff. On the issue of the flap complication, the defense had strong expert support that the insured had handled it appropriately.

In a troublesome turn of events after litigation was well under way, the plaintiff was allowed to amend her complaint to allege violations of the state’s consumer protection statutes and to add a demand for punitive damages. Because the insured’s name and address appeared on the laser center’s brochure, the plaintiff alleged that she believed the insured had participated in the accomplishments listed in the brochure and would not have agreed to the surgery had she known that was not the case. The defense team fought hard to get the intentional and punitive allegations excluded prior to trial because it was clear that the plaintiff attorneys were attempting to manufacture a much more egregious lawsuit than the facts supported. A verdict for the plaintiff would have potentially exceeded the insured’s policy limits and placed her personal assets at risk. Unfortunately, the judge allowed the plaintiff to proceed to trial with her new allegations intact.

After two weeks of intense trial proceedings, the jury returned a verdict for the defense. The jury felt there was no negligence on the part of either the insured or the laser center concerning the flap complication and its management. Additionally, the jury was skeptical of the plaintiff’s claims of deception under the consumer protection statute.

Risk Management Principles

This case illustrates how a standard medical malpractice lawsuit can sometimes metamorphose into a far more serious case with potentially grim consequences professionally and financially. Fortunately, OMIC had strong expert support for the insured’s underlying medical care and felt it was important to fight the additional allegations as a matter of principle. Nonetheless, physicians should be mindful of the materials that are available to patients in their waiting room and realize that statements made in those materials can have a tremendous impact on how patients perceive their care and outcome.