Elderly Patient Falls from Wheelchair Following a Dilated Exam
By Ryan Bucsi, OMIC Senior Litigation Analyst
ALLEGATION: Failure to assess fall risk and to warn patient of effects of dilating drops on visual accuity.
DISPOSITION: Case dismissed following patient’s death from causes unrelated to injuries sustained in fall.
Case Summary
An elderly patient underwent a dilated examination by an optometrist at an OMIC insured ophthalmology group. She was unaccompanied and used an electric wheel- chair. As she was leaving the building following the exam, staff gave her a pair of sunglasses and asked if she required assistance to her car; she declined. Shortly thereafter, some staff members were eating lunch outside the office when they heard a loud crash. They found the patient lying on the steps with her head bent into the stairs. Apparently, she had misjudged the stairs for the wheelchair ramp upon exiting the building.
An ambulance was called, and the patient was admitted to the ICU where a CT scan displayed a small intra-parenchymal contusion. She remained neurologically intact and was not felt to be an appropriate candidate for rehabilitation service at the hospital. Instead, she was discharged nine days later and admitted to a long-term skilled nursing facility where she received care for a rotator cuff tear on her right shoulder. She was subsequently discharged from the skilled nursing facility and was followed by a neurologist. The neurologist noted that her double vision had gradually subsided and that her memory for recent and remote events was unaffected. The patient remained independent in all activities of daily living. She died of an unrelated illness during the investigation of her claims.
Analysis
Staff at the OMIC-insured facility certainly did the right thing by providing sunglasses, offering assistance, and documenting the patient’s refusal of it. In retrospect, however, it is clear that the patient was a poor judge of her own need for help. Moreover, the offer of help did not prevent the plaintiff attorney from alleging that more proactive care in the form of a fall risk assessment was required. Indeed, this patient had several risk factors, including her advanced age, wheel- chair use, unaccompanied status, and a decline or alteration of vision due to dilating drops.
Furthermore, the wheelchair ramp and stairs leading out of the building were the same color, and it was arguably difficult to distinguish between the two, even with good vision. The lawsuit also alleged a failure to warn since the patient was not told of the risk of a fall or the danger of operating machinery, i.e., driving a motorized wheelchair, while her vision was impaired.
Risk Management Principles
Falls are the most common type of accident in the hospital setting and the fifth leading cause of death among persons over age 65.1 Ophthal- mologists routinely treat elderly individuals with physical limitations, motility impairment, and poor visual acuity. When these same individuals are administered dilating drops, the known side effects—decreased visual acuity, photophobia, lack of accommodation, glare, blurred vision, and decreased contrast threshold and contrast visual acuity—can prove to be much more than they can safely handle.
Fall prevention requires assessment, assistance, supervision, and surveillance. Assistance to and from the office and when getting up from a chair should specifically be offered or supplied to the elderly, handicapped, and/or visually impaired. Thorough evaluation of all of a patient’s risk factors as well as an evaluation of the general surroundings should be performed in assessing each patient’s risk for an accident following a dilated examination. Utilizing color schemes that maximize the differences between floors, steps, walls, and ramps can decrease the likelihood of a patient fall and injury.
In addition to assessing patients for fall risk, ophthalmologists and/or their staff should also obtain informed consent for dilating drops and offer patients sunglasses. While this case involved a fall, patients and other injured parties have also sued ophthalmologists when patients whose eyes were dilated were involved in motor vehicle accidents after leaving the ophthalmologist’s office. See the Risk Management Hotline article in this issue as well as OMIC’s risk management recommendations and sample consent form at www.omic.com.
Personal Relationship with a Physician-Patient Clouds Judgment on Documentation
By Ryan Bucsi, OMIC Senior Litigation Analyst
Digest, Summer 2009
ALLEGATION: Failure to educate patient on the symptoms and urgency of treatment for a retinal detachment.
DISPOSITION: The case was settled for $300,000 at mediation.
Case Summary
An OMIC insured examined a physician colleague he had known professionally for several years. The examination took place in the insured’s office. Indirect ophthalmoscopy revealed a “definite small vitreous hemorrhage,” but no holes or tears were noticed OS. A follow-up examination was scheduled for three weeks. Exactly two weeks after the initial exam, the patient was out of town when he experienced a progressive decrease in vision and total vision loss OS. He did not report the vision loss until six days later when he returned to the insured’s office one day prior to his scheduled appointment. The patient was seen by a partner of the OMIC insured, who diagnosed a retinal detachment involving the macula with a large circumferential tear along a vessel. Surgery was performed the same day and the retina was successfully reattached; however, the patient was left with 20/70 corrected visual acuity OS, which was deemed the maximum medical improvement. As a result of his decreased vision, the patient retired from medical practice and sought recovery under two disability insurance policies.
Analysis
The patient sued the OMIC insured over standard of care issues. At question was whether the insured discussed the symptoms of a retinal detachment and if he relayed the importance of immediate treatment if the patient experienced a loss of vision. There were no concerns about the insured’s examination of the patient; however, a record keeping issue directly impacted the standard of care. The patient informed the insured, after the fact, that one day before his initial visit he had hit his head on a heavy flower pot while gardening. The patient thought this was most likely responsible for his vision loss, and, under one of his disability policies, a “sudden or accidental” injury would allow him to collect more money.
The insured stated that the patient had drafted a written narrative about striking his head as this would likely benefit him with regard to obtaining the disability monies and had requested that the narrative be placed in his medical record. unfortunately, the insured then removed his initial documentation and created a second chart note of the visit. This note included the patient’s narrative and added that the patient was told to immediately contact the insured if there were any signs of a retinal detachment, such as a sudden loss of vision.
This presented a problem for the defense in that the original chart note did not make any mention of the insured explaining the symptoms of a retinal detachment to the patient, while the second note, which the patient allegedly requested, did. The insured maintained that he did not intentionally fabricate or in any manner embellish the findings of his examination, but had changed the record as an accommodation to his colleague. The plaintiff contended that he did not ask the insured to make any changes to the record and that the insured was covering his tracks and had altered the record in order to boost the defense’s position. Defense counsel advised OMIC and the insured that his story about trying to help out a colleague would not be well received by a jury and that alterations or additions to a chart, especially ones perceived as self-serving, usually reflect unfavorably on the defense. The insured agreed to settle.
Risk Management Principles
This case illustrates how physicians can get into trouble when they let personal relationships cloud their professional judgment. It is vital that ophthalmologists treat and keep records on patients they know (friends, family, or office staff) just as they would any other patient. Often, documentation is sparse or nonexistent when a physician has an outside relationship with a patient. In this case, the collegial relationship between the insured and the patient led to a breakdown in record keeping such that vital information about what was said during the initial visit was not recorded in the original documentation. When the insured then attempted to change the record after the follow-up visit, he dealt a death blow to his later defense of this claim.
Dispute Over Informed Consent with Elderly Patient
By Ryan Bucsi, OMIC Senior Litigation Analyst
Digest, Fall 2010
ALLEGATION: Failure to provide adequate informed consent resulting in the loss of peripheral vision.
DISPOSITION: The case was tried and a defense verdict was returned.
Case Summary
At the time of this incident, the plaintiff was 80 years old with a significant history of macular degeneration Ou with central vision loss OD. The insured’s exam, which included a fluorescein angiography and an explanation of advanced macular degeneration, revealed that the patient had developed neovacularization OS causing a sudden drop in visual acuity from 20/70 to 20/200 with a large amount of submacular blood. The insured recommended evacuation of the blood to prevent the development of scar tissue and to preserve central vision. The insured documented in the patient’s record that he “Advised vitrectomy with evacuation of subretinal blood and risk of subretinal blood involved.” However, no procedure-specific consent form was obtained. Approximately two weeks after this examination, the insured performed a vitrectomy and membrane peeling OS to evacuate subretinal blood, which was a relatively new treatment at the time. Postoperatively, the patient had two retinal detachments OS and eventually lost both central and peripheral vision OS.
Analysis
The main dispute in this case was over informed consent. Both the plaintiff and her daughter, who was present during the insured’s examination, claimed the ophthalmologist never told them that a postoperative retinal detachment could lead to peripheral vision loss. The insured adamantly denied the allegation and specifically recalled discussing these risks with the patient; however, his documentation outlining the risks of surgery was cursory. The defense was also compromised because the only consent form signed by the patient was a general surgical consent form in the hospital chart. Furthermore, the plaintiff was a sympathetic witness and her daughter verified her testimony. Defense counsel reported to OMIC that there was a 50% chance for a defense verdict in a somewhat conservative venue. There was little question that the retinal detachment occurred because surgery had been performed.
No one disputed that if the insured had not performed the surgery, this patient’s retina would not have detached and she would still have peripheral vision OS. However, without the surgery, the patient would have lost the chance to regain any useful central vision OS.
Just prior to trial, the plaintiff attorney, who was married to the plaintiff’s daughter, withdrew as counsel. Defense counsel warned OMIC prior to trial that the new plaintiff attorney was more formidable and that if a jury returned a plaintiff verdict, it was likely to be significantly higher. During the trial, plaintiff counsel approached defense counsel to initiate settlement discussions. The insured remained confident in his care and continued to oppose any settlement. A 7–1 defense verdict was returned in favor of the insured. The defense was able to convince the jury that the informed consent process took place even though the insured’s consent documentation was minimal. The defense was strengthened by the insured’s extremely credible testimony coupled with the fact that surgery was the only hope for saving the patient’s central vision. By the time this case went to trial, the plaintiff had some memory problems and was only able to recall the facts that supported her claims, which may have diminished her credibility. Following the jury verdict, OMIC defense counsel commented that it was very likely that this case would not have even been litigated if the OMIC insured had obtained a procedure-specific consent form from the patient.
Risk Management Principles
Informed consent is a process that requires more than simply obtaining the patient’s signature on a consent form. Detailed documentation of the indication for the procedure as well as documentation of all of the risks, benefits, and alternatives to the surgery are vital components of the informed consent process. Documentation of the consequences for delaying or refusing treatment is also advisable. In this case, the insured should have discussed and clarified with the patient and her daughter the ultimate goal of surgery—preservation of central vision—and documented in the chart that they were all in agreement with that goal and understood why surgery was being performed. The insured should have required the patient to sign a procedure- specific consent form and documented the patient’s understanding that this was a relatively new procedure.
ROP Case Defines Legal Duty of Care to Patients
By Anne M. Menke, RN, PhD, and Paul Weber, JD
Anne Menke is OMIC’s Risk Manager. Paul Weber is OMIC’s Vice President of Risk Management/Legal.
Digest, Summer 2005
“When does a physician’s duty to a patient end?” It is a question frequently asked by the medical profession and debated by the legal profession. In a retinopathy of prematurity case involving blind twins that initially resulted in a $15 million plaintiff verdict against an OMIC-insured pediatric ophthalmologist, two pediatricians, and one of the pediatricians’ practice group, OMIC learned just how difficult it can be to answer that question. This article provides an overview of the facts of this case and the many legal hurdles faced by the OMIC defense team before an appellate court reversed the plaintiff verdict and made a final determination that the ophthalmologist had no duty to the patient.
In December 1996, twins were born at 30 weeks gestational age in a hospital with a well-established protocol for screening and treating retinopathy of prematurity (ROP). In early February 1997, the hospital’s neonatal intensive care unit (NICU) nurse met with the twins’ mother and told her to schedule an outpatient ophthalmic appointment for both babies. A few days later, before the babies’ discharge, the neonatologist determined that Twin B met the in-hospital screening criteria and asked the OMIC-insured pediatric ophthalmologist to examine the baby. The insured determined that the baby’s retinas were not fully vascularized and noted the presence of Stage I ROP, for which no treatment was indicated. He wrote a follow-up order for a repeat evaluation by a screening ophthalmologist in two weeks to monitor for the development of threshold ROP. The NICU nurse and neonatologist met with the mother at different times to inform her of the results of the ROP examination and to explain the importance of follow-up evaluations; the mother was given a copy of the hospital’s letter to parents explaining ROP (“Dear Parent” letter).
As part of the hospital’s discharge process, the neonatologist contacted the twins’ pediatrician and told him he was referring two premature infants for outpatient care. At the time of the pediatrician’s first outpatient visit with the mother and infants, he addressed the babies’ numerous medical problems and reviewed the neonatologist’s referral letter with the mother. This letter indicated that the mother had made an appointment with an ophthalmologist.
Soon thereafter, on February 16, 1997, the day before the ophthalmic appointment, the mother contacted the pediatrician’s office and requested insurance authorizations for a circumcision, hernia repair, and tongue clipping. When she came to pick up the authorizations the next day, she asked, for the first time, for an insurance authorization for the ophthalmologist. The pediatrician’s office staff informed her that they could not process her request that day. The authorization form was never sent to the OMIC-insured ophthalmologist. In any event, the mother did not bring the children to the appointment; in her deposition, she claimed that she was told by the insured’s staff that the twins could not be seen without an authorization. The insured denied this.
The mother scheduled another appointment with the insured ophthalmologist for February 28, 1997 but again did not show up, this time because the babies were hospitalized for other health problems under the care of another physician. The twins were scheduled to return to the pediatrician for follow-up after discharge, but were never brought in. Instead, the mother sought treatment from a second pediatrician and told this doctor that there were no concerns about the babies’ eyes. When this pediatrician reviewed the first pediatrician’s records, she noted the concern about ROP and the absence of ophthalmic follow-up; she referred the twins to a different ophthalmologist, not the insured. By that time, June 1997, both babies were blind.
Gaps in the Process of Care
The insured ophthalmologist had only seen Twin B once in the hospital. He had never been asked to see Twin B again in the hospital or in his office and was initially bewildered when he was served with a lawsuit in March 1999 alleging negligent care of twins with ROP whose name he did not recognize. Only after reviewing the complaint did he realize that the plaintiff was the mother of Twin B and that she had scheduled an outpatient appointment with him for both twins in mid-February under a different last name. He checked his appointment records and found that his office had placed a reminder call before the appointment but that the mother did not bring the twins to that appointment or to one that she rescheduled for the end of February. Per office policy, his staff did not follow-up with new, self-referred patients who did not keep appointments, assuming they had decided to seek care elsewhere. The first pediatrician noted that appointments had been made for follow-up of the ROP during the initial visit, but he did not have a system in place to ensure that he received consultant reports. The second pediatrician was given falsely reassuring information by the parents and only later learned of the ROP after asking for and reading the medical records of the first pediatrician.
The Trial and Verdict
Efforts to dismiss the OMIC insured from the case were successful for Twin A since the insured had never examined that infant. OMIC’s Claims Committee and expert witnesses believed the insured had met the standard of care in his treatment of Twin B, and they challenged the existence of an ongoing physician-patient relationship. OMIC and the insured ophthalmologist accordingly decided to take the case to trial. After a five-week trial, the jury awarded the plaintiffs $15 million (plus prejudgment interest) according to the breakdown of fault in the chart on page 5.
The jury assumed that the insured’s relationship with Twin B did not end after his consult in the hospital but followed him after Twin B was discharged. The percentage of fault the jury assigned to the parents ignored the undisputed evidence and the following facts:
• The mother played a significant role in the delay in diagnosis and treatment of ROP by not informing the ophthalmologist of the twins’ name change, not keeping the outpatient appointments with him, and not providing accurate information to the second pediatrician when asked about the condition of the babies’ eyes.
• Her noncompliance occurred despite conscientious efforts to educate her: she was counseled about ROP by the neonatologist and NICU nurse; she received a letter from the hospital about ROP; and she spoke to the first pediatrician about the babies’ health problems. During her testimony, however, she denied understanding the significance of the problem, and her lawsuit blamed the care providers for inadequate follow-up.
Both OMIC and the trial counsel for the insured strongly believed that there was no legally sufficient evidence to support the jury’s finding that an ongoing physician-patient relationship existed between the insured and Twin B. Additionally, when polled after the verdict, the jury cited concern for the infants as the primary factor in its decision-making process. This presented a very compelling case to appeal.
Standard of Review for Appealing a Case
Typically, under a “no evidence” review, the court of appeals (or supreme court) must adhere to what the jury found unless there is no more than a scintilla of proof to establish a particular issue, “scintilla” being shorthand for that virtually indefinable quantum of proof that makes the reviewing court comfortable enough to say, “there is sufficient evidence to support the jury’s verdict.”
In the OMIC insured’s case, the defense argued primarily that there was no legally sufficient evidence – no more than a scintilla – to establish that the insured had an ongoing physician-patient relationship with Twin B. If no physician-patient relationship existed, there could be no duty, and therefore no malpractice, regardless of how badly the patient may have suffered.
Specifically, the insured argued, and the state court of appeals accepted, that the various pieces of evidence – the “Dear Parent” letter, the missed appointments, the participation in the twin’s health plan, the alleged referral from the first pediatrician – did not constitute legally sufficient evidence that the insured had an ongoing physician-patient relationship with Twin B. The plaintiffs argued the opposite interpretation of that same evidence.
Rendered in February 2004, the opinion of the majority of the state court of appeals explained: “We believe, however, that none of these facts, either individually or combined, are evidence of the actual continuation of the physician- patient relationship.” The appellate court was concerned about expanding the duty of continued care and stated: “If we were to expand the duty of continued care to all patients who are seen at hospitals by consulting physicians beyond the hospital setting based solely upon the fact that they were seen by the physician in the hospital, there would be no end to the physician- patient relationship.”
Supreme Court’s Final Review
The case was by no means over after the appellate court’s opinion. Over the following eighteen months, the plaintiffs petitioned for an en banc rehearing, in which the full eight members of the court of appeals would review the case, but their petition was denied. They appealed the rehearing denial to the state supreme court, arguing that the court of appeals did not apply the appropriate standard of review in a “no evidence or legal sufficiency” case. The state supreme court denied a rehearing. OMIC was delighted with this decision in the ophthalmologist’s favor and felt that the $730,000 it cost to defend this insured’s care was money well spent.
This case illustrates both the complexity of providing medical care to premature infants and the intricacies of the legal process. The appellate court’s decision was based on the particular facts of this case and may not apply generally to ophthalmology consultants. Additionally, this case was state specific and may or may not be used as precedent for other states. The detailed risk management recommendations for hospital- and outpatient-based ROP care that OMIC developed in response to this case, however, have proved generally useful to pediatric ophthalmologists and retina specialists. This sample protocol better protects physicians and premature infants by standardizing the nonclinical aspects of care and assigning responsibility for all steps in the treatment process. This document, “ROP: Creating a Safety Net,” can be found in the Risk Management Recommendations section of www.omic.com.
Alleged Negligent Placement of Crystalens
Ryan Bucsi, Senior Litigation Analyst
A 45-year-old female patient was diagnosed with cataracts OU and underwent an uncomplicated cataract surgery OD with placement of a Crystalens. The insured ophthalmologist recommended the Crystalens implant because it might allow the patient to be free of glasses and have fewer starbursts and halos. At the first postoperative examination, the patient’s uncorrected vision was 20/20 OD. At the second visit, the patient’s uncorrected visual acuity remained 20/20 OD, but she complained of blurry, tunnel vision, and poor distance vision.
At the third followup examination, uncorrected visual acuity decreased to 20/50, corrected to 20/25 OD, with complaints of halos and starbursts. The insured recommended a second opinion, which revealed an uncorrected visual acuity of 20/30 corrected to 20/20 OD near, with the Crystalens in good position. The patient self referred to another ophthalmologist whose examination revealed uncorrected 20/30, 20/20 corrected distance vision with J3 at near with the Crystalens in good position. The patient consulted an attorney and was referred to an ophthalmologist he utilized as an expert in medical malpractice cases.
This ophthalmologist’s exam revealed 20/50 uncorrected visual acuity and 20/20 OD corrected. The plaintiff expert ophthalmologist performed a lens exchange procedure and placed an AMO model ZA9003 posterior chamber intraocular lens OD. During trial, the plaintiff’s vision was 20/30 uncorrected, corrected to 20/20 at distance OD, with 20/25+1 corrected at close distance.
Analysis
The plaintiff expert testified that he did not recommend a lens exchange; rather, the patient requested it due to continuing complaints of blurry vision from “jiggly lines,” glare, halos, and tunnel vision. The patient reported that the lens exchange procedure improved her visual acuity but did not alleviate the halos and starbursts. The plaintiff expert testified that during the lens exchange the Crystalens was in the sulcus. He opined that the lens must have been incorrectly placed there by the OMIC insured although this expert admitted he did not use and had no experience with Crystalens implants. The OMIC insured and both subsequent treating ophthalmologists maintained that the Crystalens was in the capsular bag when they examined the patient. OMIC’s defense expert testified that it was possible for a lens to move from the capsular bag to the sulcus, and he noted that the plaintiff’s vision was correctable to 20/20 OD postoperatively. OMIC believed the insured’s care was defensible. First, there was support from an expert with significant experience using Crystalens implants and from two subsequent treating ophthalmologists that the lens was properly positioned, while the plaintiff expert was a “hired gun” with no experience using Crystalens. Second, the OMIC insured would relate well to a jury as “an expert” on behalf of his own defense, and the defense counsel had previously and successfully tried cases against this plaintiff attorney. The only hesitation in taking this case to trial was the venue, which had a reputation for plaintiff-oriented juries. Nevertheless, OMIC was confident that a jury would return a defense verdict, and the case proceeded to trial. After two days at trial and 90 minutes of deliberation, the jury returned with a unanimous defense verdict for the OMIC insured.
Risk Management Principles
In addition to a signed written consent form for cataract surgery with a Crystalens, the insured documented his conversations with the patient regarding the Crystalens. The informed consent specifically mentioned double vision or ghost images, shadows in the peripheral vision, floaters or flashes of light, and halos or reflections from lights. The insured’s records were complete and it was easy to follow his thought processes throughout his treatment of this patient. When he could find no objective reason for the patient’s postoperative complaints, he referred the patient for a second opinion, which confirmed a good result and proper positioning of the Crystalens.
During litigation, the insured set aside adequate time to meet with defense counsel in preparation for deposition and trial testimony. Although a well-qualified defense expert was hired by OMIC, it was defense counsel’s opinion that the insured’s trial testimony had the greatest impact on the jury. As this case demonstrates, active participation by the insured in defense of a medical malpractice case can significantly contribute to a favorable outcome.
