Risk Management

Subsequent Treaters’ Criticism Spurs Unhappy Patient to Sue

 By Mary Kasher, MSN, JD

OMIC Claims Manager

Digest, Fall 2002

ALLEGATION  Negligent performance of blepharoplasty, resulting in ectropion.

DISPOSTION  Defense verdict on behalf of insured ophthalmologist.

Case Summary

A 56-year old TV reporter presented to the insured ophthalmologist for a cosmetic bilateral lid repair to maintain a more youthful appearance. Uncorrected vision was OD 20/30 and OS 20/40. A bilateral upper and lower lid blepharoplasty for dermatochalasis and herniated orbital fat was performed with no reported complication other than a slight ectropion on the right lower lid, which persisted in the first postop visit. Over the next month, the ectropion persisted, but the insured felt that given time the eye would progress on its own. The patient, however, was upset with his appearance and insisted on surgery.

A right lower lid tarsal strip was performed; postoperatively, the patient appeared to have good lid contour, symmetry, and correction. On the first postop visit after the tarsal strip surgery, a small amount of ectropion of the right lower lid was noted, but the insured wanted to give the lid a chance to thoroughly heal. The patient was impatient, however, and demanded further surgery to correct this “disfigurement.” The insured recommended a second opinion and set up an appointment with another oculoplastic specialist. Instead the patient sought a second opinion from a plastic surgeon who was critical of the insured’s procedure and recommended repair of the ectropion with a full thickness skin graft. Fortunately, the patient proceeded to the office of another oculoplastic surgeon who convinced him to undergo a bilateral subperiostial SOOF lift. This procedure was successfully performed with an excellent result.

Analysis

The patient filed suit against the insured ophthalmologist alleging that he removed too much skin during the original blepharoplasty. The plaintiff expert maintained that in the hands of an experienced surgeon, blepharoplasty should not result in an ectropion unless there is unusual scarring. Yet no unusual scarring was found at the time of the final surgery. It was this expert’s opinion that a tarsal strip procedure is indicated only if the ectropion is due to skin laxity, not to other causes such as excess removal of tissue.

The defense expert countered that even if the insured did remove too much tissue, this is a known risk of the procedure and can occur in the best of hands. In fact, it is the most common complication from lower lid blepharoplasty from an external approach. This expert stated at trial that the surgeon is in the best position to decide the best course of action for the patient and that the insured’s exercise of judgment was not negligence but necessary for the proper management of the patient.

During the trial, defense counsel continually made the point that each person heals differently and that it was not the insured’s fault if the patient did not heal in the ideal manner. He reiterated that the insured demonstrated great care with the details and follow-up of the patient. On the stand, the insured presented himself as a caring and competent practitioner while the plaintiff appeared angry and blinded by unrealistic expectations of what cosmetic eyelid surgery would do for his career. He even complained about his present excellent result.

After just three hours, the jury came back with a defense verdict. In post-trial interviews, jurors said that they were swayed by defense counsel’s argument that people heal differently and by the insured’s sincerity and honesty on the stand. On the other hand, they found the plaintiff “unlikable” and believed he was exaggerating his injuries.

Risk Management Principles

Unfortunately, one of the common triggers in medical malpractice is a subsequent treating physician who criticizes a previous caregiver. In this case, the patient’s dissatisfaction with the original surgery was fueled by the harsh criticism leveled against the insured by the plastic surgeon and the second oculoplastic specialist. Instead of helping the patient deal with the complication of the previous surgery, the subsequent treating physicians complicated the situation by criticizing the previous surgeon, thus assuring that a lawsuit would follow. Had they been more skilled in their communications with the patient, a lawsuit might have been avoided.