Delayed Referral for Progressive ROP

By Mary Kasher, MSN, JD
OMIC Claims Manager

Digest, Summer 2001

ALLEGATION Failure to convey urgency and seriousness of infant’s ROP disease caused a delay in referral to a retinal specialist.

DISPOSITION  Defense verdict at trial on behalf of insured.

Case Summary

An infant boy was born at 27 weeks gestation, weighing 1247 grams and suffering from intracranial hemorrhages due to prematurity complicated by several neurological injuries. Following a three-month struggle, the baby was discharged from the hospital and referred by the pediatric neurologist to the insured, a pediatric ophthalmologist, to evaluate and follow for ROP. The insured’s impression when she examined the infant two weeks later was apparent grade I to grade II active phase retinopathy of prematurity OU. She recommended further evaluation by a retinal specialist. The baby was still on oxygen at home.

Three months later, examination by a retinal specialist showed grade IV ROP OD. Cryopexy was performed. The left eye demonstrated some dragging of the optic nerve temporally but no evidence of active neovascularization. Over the next two months, the retinal specialist noted some peripheral fibrosis temporally OD but no significant dragging of the retinal vessels. The left eye demonstrated temporal cicatricial changes with dragging of the macula temporally but no evidence of retinal detachment or active proliferation. At the time of the last examination, the retinal specialist believed the baby had full field vision OS but probably some central impairment associated with retinal dragging. Visual acuity OS was in the range of 20/200 to 20/400. The right eye demonstrated light perception only, and the baby’s general activity indicated total blindness in that eye.

Analysis

There were two central issues in the plaintiff’s case against the insured ophthalmologist: (1) Could vision in the baby’s right eye have been saved with earlier treatment by the retinal specialist? (2) Did the insured stress to the mother the seriousness of the baby’s eye condition and the importance of a timely referral to the retinal specialist?

Plaintiff experts argued that the progression from grade I to II to grade IV OD was a direct result of the delay. Defense experts argued that even if the child had been referred in a timely manner, the end result would have been the same. The mother testified that although the insured did tell her about changes in her son’s eyes, she was never told of the urgent need for follow-up. The insured maintained that she instructed the mother to make an appointment with the retinal specialist within the week, but her records did not support this. She also claimed to have dictated a report of the baby’s condition in front of the parents and to have sent a copy to the retinal specialist, but the specialist’s records did not contain this report.

Fortunately, defense counsel found several neonatal nurses from the hospital where the baby was born to testify that the parents of a premature infant with neurological problems would necessarily have been informed of the seriousness of their baby’s condition before discharge and would have been instructed in the importance of follow-up visits. This instruction was well documented in the hospital’s records and helped discredit the mother’s testimony that she was never informed of the seriousness of her baby’s condition. In addition, the retinal specialist was able to reconstruct from his office records a timeline showing that the first call by the mother to make an appointment was more than a month following the last visit with the insured. His records also indicated that the first appointment was a no show and had to be rescheduled, resulting in yet another delay.

Risk Management Principles
This case demonstrates the importance of medical record details. Although the insured’s medical records were well documented in many respects, plaintiff attorneys zeroed in on the absence of a note regarding the conversation with the mother along with the missing copy of a letter dictated to the specialist. Fortunately, the thoroughness of the preceding and subsequent treatment records provided the jury with sufficient evidence of the mother’s noncompliance. This, along with the overall good quality of the insured’s records in general, enabled defense counsel to sway credibility back to the insured. Had the insured documented her instructions to the mother and her referral to the retinal specialist, this case probably would not have gone to trial and the insured would have been spared the expense of time and courtroom anxiety.

Orbital Fracture Missed During Eye Exam

By Mary Kasher, MSN, JD

OMIC Claims Manager

Digest, Winter 2002

ALLEGATION  Failure to diagnose orbital fracture in child, resulting in reduced range of motion and double vision.

DISPOSTION  Plaintiff verdict at trial.

Case Summary

A five-year-old boy was referred to the insured ophthalmologist by his pediatrician for a post-trauma eye exam. The child had been fighting with his brother and was pushed to the floor, rubbing his face on the carpet. Examination revealed normal VA in both eyes. The right eye was normal in appearance and movement; the left eye revealed a superficial abrasion to the corneal surface (2+ injection at inner aspect). Palpation elicited no complaints. Observing no restriction of movement, the insured decided not to perform a forced duction test. Antibiotic drops and a firm patch were applied to the left eye, and a follow-up visit was scheduled for the next day.

The following day, the child presented with increased pain and a “pinching” sensation. He would not allow an examination due to the pain. Suspecting a foreign body and wanting to examine the eye carefully, the insured performed an exam under anesthesia. No foreign body was discovered, but a notation was made that the corneal abrasion was healing. The patient continued to improve until five months later when the pediatrician again referred him to the insured because the left eye was not moving properly. The insured confirmed that the left eye did not elevate properly and referred the child to an oculoplastic specialist.

The specialist noted severely restricted movement OS and ordered a CT scan, which showed a fracture of the orbit. On exam, the upward gaze was almost nonexistent and downward gaze was moderately restricted. The eyeball itself was 2 mm depressed. Surgery to release the entrapped muscle was successful, and improvement in both double vision and movement was noted, although the child continued to experience slight double vision in upward and downward gaze. Neither the child nor his parents reported any problems or restrictions in his activities.

Analysis

The central issue in this case was whether the insured’s examination met the standard of care and whether the delay in diagnosing the orbital fracture affected the outcome. The plaintiff expert and three defense experts stated that with the presenting history and symptoms, they would have suspected an orbital fracture and conducted a forced duction test, either at the office visit or under anesthesia. They also felt it was substandard not to order a CT scan or schedule a follow-up visit after the hospital exam. OMIC was able to find one expert who agreed with the insured that the child did not present with characteristics of an orbital fracture because there were no signs of trauma around the eye and no restriction of movement. Also, the child’s persistent pain was more indicative of a corneal abrasion, which the insured diagnosed, than a fracture. This expert further felt it was not unreasonable that the insured did not perform a forced duction exam under anesthesia since his focus was to examine the cornea and retina. Unfortunately, this expert could not say that the delay in treatment had no effect on the final outcome.

Risk Management Principles

OMIC’s Claims Committee recommended a reasonable settlement to avoid what looked to be an almost certain plaintiff verdict; however, the insured insisted on going to trial because he believed his care was appropriate for the child’s presenting symptoms and that the final result was very good given the injury. Unfortunately, the jury did not agree and came back with a plaintiff verdict.

It is important to remember that when a case goes to trial it is not tried before a jury of the physician’s medical peers but before lay people who have little or no medical knowledge or experience. The jury did not appreciate that the child had an excellent overall result and that the measure of damages was very small, or that the insured’s care was reasonable at the time the child presented. The plaintiff attorney, who had the benefit of hindsight, was able to successfully argue that “if only the doctor had done a duction exam or a CT scan, the child would have better sight today.” It created a scenario in the minds of the jurors that was difficult to overcome.

Poor Results from Bilateral Upper Lid Blepharoplasty

Digest, Winter, 1993

ALLEGATION  Insured ophthalmologist allegedly failed to advise claimant to discontinue use of an antiplatelet medication prior to surgery. Additionally, there were allegations of failure to obtain proper informed consent and failure to refer to a plastic surgeon.

DISPOSITION  Settled with indemnity payment for subsequent repair surgery.

Case Summary

The patient was a 55 year-old male. A short-term patient of the insured ophthalmologist, he presented with ptosis and dermatochalasis OU, and elected to have a bilateral upper lid blepharoplasty. Visual acuity was not a significant factor. The risks and complications were discussed, and informed consent obtained. Past medical history revealed the patient had been on antiplatelet therapy due to a history of circulatory impairment.

Two days postoperatively, the patient demonstrated excessive swelling and ecchymosis below OU. He had not applied ice postoperatively and had not stopped taking his antiplatelets pre or postoperatively. One month later, the patient still demonstrated swelling of the lower lids and discoloration. At his six-month postoperative exam, a second opinion was obtained from a plastic surgeon who was critical of the insured’s surgery.

By this time as well, the patient’s health insurance carrier had denied coverage of the surgery on the grounds that it was elective in nature and did not meet the guidelines of medical necessity. Dissatisfied with his outcome, the patient refused to pay the insured and efforts on the part of the office staff to collect prompted the patient to seek an attorney.

Outcome

In reviewing the records, it became evident that there were documentation deficiencies which impeded the defense. There was no indication that the ophthalmologist had advised the patient to discontinue the antiplatelet preoperatively. Continuing the antiplatelet delayed postop healing. The operative report indicated a manipulation of the lacrimal glands which, according to claimant’s counsel, had not been discussed in the informed consent process. These factors, coupled with the bill dispute, led the insured to consent to settle the claim, which included compensation for the claimant’s “second repair surgery” with improved results.

Risk Management Principles and Commentary

Patient dissatisfaction with the result does not necessarily obligate the surgeon to compensate the patient. Each case warrants evaluation of its own merits. Often, oculoplastic procedures do not meet the medical necessity criteria for third-party reimbursement. This, combined with the risk of imperfect results, can strain the physician-patient relationship.

The following risk control measures on the part of the ophthalmologist and staff may help prevent or reduce the severity of a claim:

• Although an ophthalmologist’s focus is specific, a complete review of systems and discussion of medical history should be part of the patient’s medical record.
• A thorough discussion of the procedure as well as photos taken prior to surgery (preferably as part of the informed consent process) may be prudent, particularly when the surgery may not meet “medical necessity guidelines.”
• A procedure- and patient-specific postop instruction sheet with a copy filed in the medical record undermines the credibility of a patient who claims “ignorance” following a bad result. If the hospital provides the instruction sheet, as is often the case, the ophthalmologist should add any specifics relevant to that patient’s medical history.
• Continued rapport between ophthalmologist and staff and the patient is important, particularly with dissatisfied patients. Avoiding “difficult” patients only fuels the situation. A “no-charge visit” to discuss options with the dissatisfied patient may preclude the costs associated with the filing of a claim. If there is difficulty establishing rapport with the patient from the outset, it may be a cue to the physician to recommend a second opinion.
• Finally, bill abatement or adjustment may be considered. This is not necessarily an admission of liability, but rather a courtesy gesture and should not be practiced as a general rule. However, if the facts of the case merit it, waiving the fee can go a long way toward averting or mitigating a claim.

Charges That Inadvertent Orbital Biopsy Caused Permanent Ptosis

Digest, Fall, 1993

Allegation

Minor plaintiff, through a guardian, alleged that the insured ophthalmologist negligently performed an exploratory orbital surgery and tissue biopsy of the right eyelid, which damaged the levator muscle and caused permanent ptosis, resulting in dense amblyopia.

Disposition

Plaintiff’s counsel demanded $750,000 prior to trial. No settlement offer was made. Jury verdict in favor of the OMIC policyholder.

Background

A common catalyst of medical malpractice suits is an unintentional critical comment by a colleague. Even though the colleague may not mean to indict the other physician’s treatment, the statement often takes on a life of its own when a claim is pursued by a dissatisfied patient.

Case Summary

The patient was a 10-month-old girl who was first seen by the insured, a pediatric ophthalmologist, in his office upon referral from the emergency room at a nearby hospital. The patient had a rapid onset of proptosis of the right eye. The ER physicians and the insured concurred in the initial differential diagnosis of intraorbital tumor, possibly a rhabdomyosarcoma or lymphangioma, based upon the patient’s clinical history and CT-scan.

The insured performed exploratory orbital surgery four days after the initial exam for the purpose of taking a biopsy of the orbital tissue to rule out rhabdomyosarcoma and ascertain the nature of the tumor. The orbital tissue biopsy (frozen section) was found to be benign and the insured reentered the orbit in a further effort to determine the cause of the proptosis. A 5-centimeter cyst was located behind the globe near the optic nerve. Semi-clotted blood was aspirated from the cyst, resulting in an immediate reduction of the marked proptosis.

The patient had an expected postoperative partial ptosis of the right eyelid, which improved, then worsened with subsequent recurrences of orbital swelling. Based upon this subsequent clinical history, it appeared the patient had a lymphangioma.

A subsequent treating ophthalmologist performed a sling operation. The operative report, which was dictated by the assisting resident, stated that “a large gap of levator muscle was missing centrally due to inadvertent biopsy.” Minor plaintiff’s parents contacted an attorney and initiated a claim soon thereafter.

Outcome

The plaintiff’s attorney’s strategy in this case was twofold:

• Dispute the suspicion of rhabdomyosarcoma as a proper differential diagnosis.
• Allege that the insured failed to identify and isolate anatomical structures, thereby negligently damaging the levator muscle when performing the biopsy. The critical comment of “inadvertent biopsy” in the operative report of the subsequent treatment ophthalmologist fit neatly with the plaintiff’s strategy of showing that the levator muscle was damaged by the insured.

The patient’s grandmother tried to bolster the point of the insured damaging the levator muscle by testifying that after the sling operation the assisting resident stated to her and the baby’s mother that the surgeon had been unable to locate both ends of the eyelid muscle centrally. He allegedly stated that “the baby did not remove the muscle herself.” From this purposed statement of the resident, the grandmother and mother assumed that the insured had removed that portion of the muscle.

During the deposition of the ophthalmologist who performed the sling surgery, he testified that there were a number of errors, inconsistencies and unfortunate word choices in the operative report dictated by the resident such as the characterization that the gap in the levator muscle was “due to previous inadvertent biopsy”. He supported the insured’s decision to do the biopsy and had no criticism of his treatment of the patient.

Nevertheless, the plaintiff brought in three experts who were willing to testify that the insured negligently damaged the levator muscle. The testimony of these experts conflicted, however, and much of it was discredited during the trial. After a six-day trial, the jury took less than three hours to reach a verdict for the defendant.

Risk Management Principlesand Commentary

This case typifies the situation in which unintentional comment generates a lawsuit. When a plaintiff’s attorney investigates a possible claim for medical malpractice, he or she will have all the patient’s medical records copied and reviewed. A comment by a subsequent treater such as “due to inadvertent biopsy” is a red flag to a plaintiff’s attorney that there may be negligence and helps the attorney to form a theory of the case.

Next, the records are sent to experts who are requested to focus upon the theory of the “inadvertent biopsy.” They review the records and see an “unbiased” subsequent treater opining that the biopsy was “inadvertent.” Thus, they may feel more secure in finding evidence to support this theory of the case.

The sad irony of this case and others is that the ophthalmologist whose operative report was used to bolster the claim against the insured actually had no criticism of the insured’s care of the patient and did not consider the biopsy “inadvertent.” However, his signature as well as that of the resident appeared on the operative report.

Prior to signing records, an ophthalmologist should review them for inconsistencies and incompleteness in clinical facts, findings, test results and the like. Dictated notes and reports, especially those dictated by an assistant, must be proofread to ensure accuracy and completeness. As in this case, what is charted will be considered the opinion of the signing ophthalmologist.

Early Reporting of Claims Benefits All Insureds

Digest, Fall, 1995

Allegation

The insured ophthalmologist allegedly failed to properly advise a patient of the nature and risks of a surgical procedure and performed surgery to remove a right lower lid lesion in a negligent manner.

Disposition

Claim was dropped by the patient during the prelitigation stage and case was resolved without an indemnity payment.

Background

Early reporting of a claim allowed this OMIC insured to avoid being named as a defendant in a lawsuit. Because the insured gave OMIC the opportunity to respond to the plaintiff attorney before suit was filed, the physician avoided many of the frustrating and time-consuming efforts involved in preparing a full-blown legal defense. At the same time, the insurer was able to avoid expensive defense costs.

Case Summary

The patient was a 77-year-old male referred to the insured for evaluation of a lesion on his right lower lid. The patient reported that the lesion had been growing slowly for approximately a year. Upon examination, the insured described the lesion as a firm, fixed tumor at the lid margin umbilicated with pearly borders. She diagnosed probable basal cell carcinoma and recommended excision.

Several days later, the insured performed an excision of the tumor and reconstruction of the lid defect with a full thickness skin graft. Five days postoperatively the surgical wound completely dehisced. The insured removed all the sutures and offered the patient a Hughes flap reconstruction. The patient agreed to the Hughes flap, and it was performed the next day.

Postoperatively, the Hughes flap took well and the wound was healing nicely. After two postop visits, the patient suddenly informed the insured that he was changing physicians and had decided to be followed by a plastic surgeon rather than an ophthalmologist. The plastic surgeon subsequently performed a division and inset of the flap without complication, but a revision was later required to correct some residual contracture.

Analysis

Prior to filing a lawsuit, the patient’s attorney wrote to the insured physician alleging that the insured had provided negligent care and suggesting an out-of-court settlement. The insured promptly notified OMIC of the situation, and the claims representative opened a file and began an investigation accordingly. OMIC consulted with an oculoplastic specialist, who reviewed the pertinent medical records and opined that the surgical technique employed by the insured for both the initial tumor excision and the subsequent Hughes flap was within the standard of care. Armed with this supportive expert opinion, the claims representative was ultimately able to convince the patient’s attorney to drop the case before a lawsuit was filed.

The discussions between the OMIC claims representative and the patient’s attorney did not resolve this case overnight. The attorney had reviewed cases in the medical literature which recommended techniques somewhat different from that employed by the insured, particularly in literature authored by plastic surgeons rather than by ophthalmologists specializing in oculoplastics. Based on this research, the patient’s attorney was initially quite confident about the case and formulated a long laundry list of technical criticisms. It took several months of phone calls and correspondence to convince the attorney that the insured had not deviated from the standard of care and that OMIC was fully prepared to defend the case.

Risk Management Principlesand Commentary

Some physicians mistakenly believe that the only time they should call their insurer is when a Summons and Complaint arrives at their door. While it is true that a lawsuit does not commence until a Complaint has been filed in court and served upon the defendant, the prelitigation stage of a claim should be taken seriously and used as an opportunity to try to avoid litigation.

It is not always possible to derail an impending lawsuit. However, OMIC does have the trained staff and procedures in place to deal with claimants and their attorneys directly in an effort to forestall a lawsuit. For these efforts to succeed, insureds must report potential lawsuits early. When successful, this early intervention benefits all policyholders by reducing defense costs that ultimately impact premiums.