Failure to Provide Urgent Eye Exam

Digest, Winter 1997

ALLEGATION  Failure to provide an urgent eye examination, resulting in delayed diagnosis and treatment of a retinal detachment.

DISPOSITION  Case settled with a small indemnity payment.

Case Summary

The claimant, a 67-year-old male, was first examined by the insured ophthalmologist at a rural satellite office for complaints of seeing floaters and flashes of light for three days. Examination revealed a posterior vitreous detachment with no retinal holes or tears. The patient was instructed to call the insured if the floaters or flashes increased or if there was a vision change. Three weeks later the patient presented with complaints of seeing spiderwebs. A repeat retinal examination was normal, and the patient was told to call immediately if there was any change in symptoms.

A month later, the patient called the insured’s office on a Thursday and told the receptionist he was seeing a dark spot in his peripheral vision OD. He was told that due to a medical convention there would not be any physicians in the satellite office for several days, but his message would be relayed to the practice’s main office in a nearby city and he would receive a return call. The patient’s message was phoned in to the main office by the receptionist and given to one of the nurses. According to the patient, a nurse later called him back and, after discussing his visual complaints, told him there were no appointments available for the remainder of the week, but if his symptoms did not resolve, he should call back the following Monday.

On Friday evening, the patient experienced increased loss of vision and was referred to a local on call ophthalmologist by the insured’s answering service. The on call physician diagnosed a rhegmatogenous retinal detachment and immediately sent the patient to a retinal specialist. Visual acuity at this time was 20/30 OD. By the time the patient reached the specialist’s office an hour later, the detachment involved the macula. Following a retinal procedure, the patient suffered a redetachment and required additional surgery. Ultimately vision could be restored to on the 20/400 level. The patient filed suit against the insured ophthalmologist and the corporate employer of the administrative and nursing staff at the practice.

Analysis

The claimant argued that had he been examined on Thursday, his retinal detachment would have been diagnosed early enough to prevent macular involvement, thereby significantly increasing his chances of regaining good vision. Deposition testimony by two subsequent treaters supported this theory. The defense contended it was the development of proliferative vitreoretinopathy after the initial retinal surgery, not a delayed diagnosis and macular detachment, that caused the claimant’s damages.

Based on the available evidence, experts on both sides were critical of the fact that the patient was not referred to an ophthalmologist when he reported his vision change to the office on Thursday. In the face of this serious standard of care issue, the carrier and insured agreed that a small settlement on behalf of the corporation would be appropriate. The ophthalmologist who was individually named in the suit was dismissed because there was no direct criticism of his examinations and patient instructions prior to the detachment.

Risk Management Principles

Unfortunately, the only documentation concerning the patient’s call was a telephone message stating that the patient was seeing a black spot OD. By the time the suit was filed, none of the nurses in the principal office remembered talking to this patient. Perhaps in part because the chart was located in the satellite office and not immediately available, the unidentified nurse made no notes concerning the oral triage of patient. Thus, the defense was unable to present any testimony or documentation that could challenge the claimant’s version of events concerning the nature of the symptoms reported to the nurse.

This case illustrates that it is good risk management practice to ensure that documentation concerning a patient’s contact with a principal office is transferred to the medical chart located in a satellite office. It is difficult to know in the above scenario whether the nurse’s judgment call that the patient did not have to been seen immediately could have been justified based on the full content of her conversation with the patient. However, with the dearth of documentation and the absence of any independent recollection by the nurse involved, the opportunity to raise such a defense was lost.

An office procedure that includes communicating the ophthalmologist’s findings and plans from the previous examination to staff in a remote office, perhaps via fax or computerized medical records, accessible to both the principal and satellite offices, may have benefited the nurse who triaged this patient. If due to some communication issue, the description of symptoms provided by the patient over the telephone was not clear enough to raise concerns regarding a possible retinal detachment, reference to previous records would have alerted the nurse to the seriousness of the situation.

This case also points out that ophthalmologists should be mindful of what malpractice coverages they have in place for their corporations. Because the nurse was an employee of the corporation, it was the corporation rather than the individual physician who was exposed to liability. At OMIC, coverage for sole shareholder corporations at shared limits with the physician owner is automatically included without additional charge. However, if separate limits are desired, or if the corporation has more than one shareholder, additional coverage may be purchased in order to protect the shareholders against claims directed at the corporation and its employees.

Unfamiliar Procedures in Satellite Office Leads to Failure to Diagnose Retinal Detachment

Digest, Fall 1997

 ALLEGATION  Failure to diagnose detached retina.

DISPOSITION  Claim settled on behalf of insured ophthalmologist.

Case Summary

A 64-year-old woman presented to the insured’s office for the first time in October 1990 complaining of diminished vision in her left eye over a period of six months. Her past history included an eye contusion after being hit by a swing as a child. She reported no specific follow-up for this incident and no loss of sight at the time. Over the years, her eye care consisted of visits to an optometrist for periodic eye exams and treatment for minor eye irritations. She reported wearing glasses for about 35 years. Vision in her left eye was 20/200 with no improvement by pinhole; OD was 20/40 without correction. The left fundus exam revealed minimal macular degeneration; the right exam was negative.

After the insured performed a general ophthalmological examination, he directed the patient to go to the office optometrist for refraction and to return to him for a dilated fundus exam with an indirect ophthalmoscope. To ensure that this sequence occurred and that the patient returned to complete her exam, the insured intended to give the patient an office routing slip; however, there were no routing slips in the exam room so he wrote these instructions on a blank slip of paper and attached it to the chart. Unfortunately, upon completion of the refractive exam, the optometrist failed to see the insured’s note and sent the patient home with instructions to pick up her glasses in a few days. When the optometrist telephoned the patient after she failed to return for her glasses, the patient promised to pick up the glasses within the week and said she also intended to reschedule an appointment with the ophthalmologist.

The patient did not return to the insured’s office and did not have another ophthalmologic exam until March 1991 when she visited another ophthalmologist with complaints of “shrunken vision” over the previous six months. This ophthalmologist diagnosed a detached retina and referred her to a retinal specialist, who successfully performed a scleral buckle. The operative report described a long-standing retinal detachment from 2 o’clock to 9 o’clock with the macula detached. An uncomplicated recovery followed, and the patient’s last recorded visual acuity for the left eye was 20/200. At her deposition, the patient testified that she had some minimal peripheral vision, but that her central field vision was so blurred she could only identify shapes of objects within a few feet and could not read with her left eye.

Analysis

The plaintiff attorney immediately seized upon the theory that the detachment existed when the patient first visited the insured and that had he completed his exam during that visit, the diagnosis would have been made. At the very least, it was alleged, a follow-up exam should have been scheduled for any patient presenting with such a significant drop in vision. The plaintiff attorney blamed the physician for failing to complete his exam, the optometrist for failing to follow the directions in the record, and the office staff for failing to provide the routing slips referenced by the insured. In fact, this particular incident took place in a satellite office that, unlike the main office, had not instituted the use of routing slips to manage a patient’s progression through the various offices. The insured assumed the procedure was in place and wrote a note that in his mind would easily be understood by the staff. Unfortunately, it was not. The patient left the office without a complete exam and without a follow-up appointment, leaving the insured vulnerable to accusations of failure to diagnose and failure to follow up with a patient presenting with severe vision loss. Without an exam to show that the detachment had not existed at this visit and with only minimal macular degeneration as an explanation for the patient’s loss of vision, the defense counsel was unable to counter the plaintiff’s allegations. The case was settled prior to trial.

Risk Management Principles and Commentary

The error that allegedly caused this patient’s injury was a system failure, not an identified error in clinical judgment or treatment. Had procedures been more carefully matched between the home and satellite office, it is quite probable that this problem would have been avoided. If a retinal detachment had been present at the time of the office visit with the insured, a full exam would have revealed it. If not, a full exam would have been documented to that effect.

In a busy practice, particularly one with multiple locations, it is extremely important to maintain consistent patient care systems to manage patients and their data. Although it can be tedious and time consuming to review and standardize office practices, it is vital for consistent and safe quality patient care. To evaluate the effectiveness of your office systems, start with an office audit. This can be an internal collection of data that is later shared and analyzed within the practice, or a more formalized office audit by an outside firm. The important thing is to establish sound and consistent office systems to improve the overall quality of patient care, minimize patient injury, and reduce the risk of malpractice litigation.

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.

Failure to Adequately Inform of Laser Risks

Digest, Fall, 1994

Allegation

Insured ophthalmologist and a retina specialist allegedly failed to warn of the potential danger of total blindness resulting from laser treatment.

Disposition

Charges against the general ophthalmologist were dismissed. The retina specialist settled for an unspecified amount based on the confusion around the informed consent issue.

Case Summary

The patient was a 64-year-old woman who presented to the insured ophthalmologist after experiencing a sudden loss of vision in her right eye. She had a history of hypertension, cataract surgery, and macular degeneration in both eyes. Visual acuity on examination was hand motion at 1 ft. OD, and 20/80+2 OS corrected. Examination of the posterior segment of the right eye revealed an extensive subretinal and subpigment epithelial hemorrhage involving the macula. Both eyes disclosed extensive and severe changes in the macula consisting not only of hemorrhage, but also of drusen and atrophic pigmentary changes. The retinal arterioles were quite narrow in each eye, indicating severe arteriolar sclerosis.

A fluorescein angiogram disclosed the presence of some retinal neovascularization and RPE atrophy in the right eye, but no subretinal blood in the left eye. The recorded diagnosis was huge subretinal hemorrhage OD due to macular degeneration, and beginning subretinal hemorrhage on the left. The insured recommended that the right eye be observed for the next 6 to 12 months and that laser treatment be performed to prevent further breakage and hemorrhaging of the left paramacula. Before referring her to a retina specialist, the insured had the patient sign a fairly general consent form for laser surgery, which listed blurred vision, bleeding, and a hole in the retina as possible complications. The retina specialist also discussed possible complications of surgery with the patient, but since the patient had already signed a release, he did not document the discussion in the record nor did he have her sign a release.

The laser treatment was performed without apparent complication. Three days later, however, the patient noted severe vision loss in the left eye. Examination revealed an extensive subretinal hemorrhage in the left eye similar to that which was present in the right eye. The left eye advanced rapidly from hand movement to no light perception. The patient was left with only light perception in her right eye.

Analysis

The medical experts who reviewed this case were not critical of the technique used during the surgery. They agreed that laser photocoagulation was the appropriate treatment of choice for this patient; however, they were critical of the retina surgeon for failing to adequately document the informed consent process and for relying upon the referring physician’s informed consent. Even though the referring physician had made cursory documentation of the informed consent discussion, it was the surgeon who ultimately was held responsible for ensuring that the patient was adequately informed and for documenting that discussion. Because he did not do this, the plaintiff’s attorney was able to argue that the patient was not adequately warned of the possibility of total blindness following laser treatment. The plaintiff attorney’s final argument was that the patient was not given the pertinent facts to make an intelligent choice about her own vision.

Risk Management Principlesand Commentary

This case illustrates a deviation from one of the primary rules of informed consent: The caregiver who actually performs the procedure is primarily responsible for the adequacy of the informed consent. In the case of a referral, a surgeon cannot make the assumption that the referring physician has discussed the surgery with the patient. Even when the surgeon is certain that detailed information was previously provided to the patient, it is a good practice to review this information, especially in the case of elderly patients, to assist their understanding and allow time for questions.

The issue of adequate consent also comes up under several teaching scenarios where a resident often will secure a timely informed consent prior to a procedure at which the resident is assisting. In such cases, the attending surgeon remains responsible for the quality and completeness of the consent process, and it behooves the surgeon to doublecheck the adequacy of the resident’s consent technique. With the advent of managed care and the interdependence of ophthalmologists, optometrists, physician assistants, nurse practitioners, and others, assuming that another caregiver along the chain of health care has adequately informed or educated a patient is a dangerous practice.

Patient Slip and Fall Following Dilation

By Stacey Meyer
OMIC Assistant Claims Manager

Digest, Spring 2001

ALLEGATION  Failure to provide sunglasses following dilation led patient to fall and hip fracture.

DISPOSITION  Case settled on behalf of insured ophthalmic group.

Case Summary

A 72-year-old male patient was seen by the insured for a routine eye exam during which his eyes were dilated with Neo-Synephrine 2.5% and Mydriacyl 0.5%. Afterwards, as the patient was leaving the office and walking towards his son’s waiting car, he stepped off the curb outside the building and fell down on his right side. He sustained a transverse fracture through the mid-right femoral neck and eventually underwent a bipolar hip replacement. After numerous physical therapy sessions, the patient was ambulating with minimal difficulty.

Analysis

The patient alleged that the insured ophthalmologist was negligent in not providing him with sunglasses or advising him to wear sunglasses after dilating his eyes. He stated that when he left the insured’s office, his eyes were unprotected and blinded by the sun’s glare, which impaired his vision so that he did not see the step from the curb. The plaintiff’s expert opined that it was below the standard of care to allow the patient to leave without providing sunglass protection before the effects of dilation had dissipated.

The insured countered that the technicians in his office who instill dilating drops routinely warn patients that they can cause blurry vision and heightened sensitivity to light, and they keep sunshades at the front desk for patients who request them. However, there was no written office policy or procedure in place regarding this issue. Although the office administrator maintained that she offered the patient sunglasses, there was no documentation to support this, and neither the insured nor other office staff could remember specifically warning the patient of the potential problems associated with dilation. Furthermore, the OMIC Publication Archives advise physicians who administer dilating drops to instruct patients to wear sunglasses and avoid driving or operating dangerous machinery afterwards. In light of this, the defense team and insured agreed it would be difficult to defend the case and settled on behalf of the insured ophthalmic group.

Risk Management Principles
Failure to provide for a patient’s safety has been the basis of many “slip and fall” suits against ophthalmologists. Oftentimes, a slip and fall claim will cross over both a physician’s general liability and professional liability coverage, depending on whether the treatment rendered to the patient contributed to or caused the incident in question. Responsibility for patient safety does not begin and end in the exam chair, but extends to the entire premises, regardless of whether the physician owns or controls the property outside the office

Visual impairment following dilation raises questions of patient safety and establishes a duty on the part of the caregiver to provide for the patient’s safe transport out of the office. Settlements and judgments involving patient falls post-dilation can range a few thousand to tens of thousands of dollars, particularly if the ophthalmologist or office staff are found negligent in supervising an elderly or visually impaired patient.

Providing a safe environment for patients should be a priority in all practices. Conduct periodic audits of the office premises and safety policies. Develop written procedures establishing safety guidelines and practices to be followed by office staff. A routine checklist or mechanism to record that a patient has been warned of potential glare problems and instructed to wear sunglasses can serve to protect the physician and staff from failure to warn allegations.