False Advertising and Misrepresentation Hamper Defense in Laser Facial Surgery Case

Digest, Summer, 1996

ALLEGATION  Unsatisfactory results from laser facial surgery due to insured’s substandard technique, lack of informed consent, false advertising, and misrepresentation.

DISPOSITION  Case settled with indemnity payment to include the cost of subsequent repair surgery.

Case Summary

After reading an enticing ad in a local newspaper that suggested “youth was just a minor surgery away,” the plaintiff, a 59-year-old woman decided it was time to have her wrinkles removed. She set up a consultation meeting with the insured ophthalmologist and was assured that the new CO₂ laser technique was extremely safe and that the results were astounding. The insured also assured the patient that she had performed this procedure many times and that all her patients had been very satisfied.

Based on these reassurances and representations in the newspaper ad that this ophthalmologist “teaches other surgeons how to perform laser facial surgery,” the patient underwent a full face CO₂ laser resurfacing. There were no apparent complications during the procedure, and the patient was discharged from the surgicenter in stable condition. Her recovery was unremarkable for the most part; however, she suffered from extreme redness when the new skin appeared, which alarmed her. The insured tried to console her, explaining that this was a normal complication and that the redness could be expected to resolve in another two to three weeks. Unfortunately, the redness continued for three months before the patient was able to adequately conceal it with skin bleaches and makeup. In addition to the redness, the patient complained that the wrinkles under her eyes were not adequately removed and that the smile lines at the corners of her mouth had been altered and now were uneven. The insured offered further surgery to correct the smile lines to the patient’s satisfaction, but the patient declined.

The next communication from the patient was a letter from her attorney stating that she was bringing legal action against the insured for damages suffered by the substandard performance of laser surgery, lack of informed consent, false advertising, and misrepresentation.

Analysis

In the absence of the misleading advertisement, this case could have been defended on the merits of the medical facts. Two oculoplastic surgeons, both experienced in CO₂ laser resurfacing, reviewed the surgery, postop care, and the overall visual results of this patient and were supportive of the insured’s surgical technique and postoperative care. They were satisfied that the redness experienced by this patient was a known and expected complication and that the change in her smile lines was an expected result of the general tightening of the facial skin and would possibly relax over time.

The difficulty in defending this case came with the discovery that the insured actually had not been involved in instructing other physicians in the CO₂ laser technique and had in fact performed only six procedures prior to the plaintiff’s. The ad had been developed by a local marketing company after a brief interview with the insured. When it was presented for her approval prior to printing, the insured questioned the propriety of claiming she was “the surgeon who teaches other surgeons” since she knew she did not instruct other surgeons in this procedure; however, the marketing representative assured her that since she was a university professor she was qualified to make this claim. The marketing representative also pointed out that an eye-catching and enticing ad could be quite effective in attracting patients.

Unfortunately, the plaintiff attorney probed into the insured’s university standing and discovered that while she was indeed an assistant clinical professor in ophthalmology, she had no affiliation with plastic surgery or dermatology, which he erroneously thought was a necessary qualification to teach and perform this procedure. Even though the plaintiff attorney was misdirected in his initial investigation into specialties, it was inevitable that with further probing he would discover that the insured did not in fact teach other surgeons this procedure. Based on the perceived inability to defend the statements made in the newspaper ad, OMIC, in conjunction with the insured, decided to settle the case for a nominal amount rather than face the probable ramifications of further probing by the plaintiff attorney.

Risk Management Principles and Commentary

If the insured had heeded her uneasiness about the wording of the ad and insisted that it be modified, she might have avoided the subsequent legal action taken against her. When publishing an ad about one’s own professional expertise, it is the physician who must decide what can and cannot be said. Stretching the truth in a misleading way can be construed as misrepresentation and may result in a high jury award if a case goes to trial. Likewise, when the stakes at trial are so high, it can be difficult to reach a reasonable settlement.

During the informed consent process, it is extremely important for the physician who performs laser resurfacing not only to fully inform the patient of the known complications, such as excessive redness, but also to be honest about one’s level of experience with this procedure. If at a later date, the patient becomes unhappy with the results, and there has been a less than accurate disclosure of the physician’s actual experience with the procedure, or an overly optimistic promise of the outcome, the case will be extremely difficult to defend.

Negligent Lid Surgery on a Graves’ Patient

By Stacey Meyer
OMIC Claims/Litigation Associate

Digest, Summer 1998

ALLEGATION 

Unnecessary panretinal photocoagulation for proliferative diabetic retinopathy.

DISPOSITION

Case settled on behalf of insured ophthalmologist.

Case Summary

A 52-year-old male presented with a history of severe thyroid disease, which eventually manifested itself through bulging eyes. He was seen by the insured for surgery to correct the proptosis. Prior to performing the surgery in question, the insured referred the patient to an internist for a second opinion. The internist concurred with the proposed surgery, although this was never documented. The insured then performed bilateral tarsorrhaphies and bilateral upper and lower lid blepharoplasties.

Postoperatively, the patient complained of incomplete lid closure, swelling and pain thought to be most likely a Graves’-related autoimmune inflammatory reaction. He was placed on steroid medication, which alleviated the symptoms temporarily. But as soon as the dosage was tapered, the inflammatory symptoms returned. The insured then referred the patient to the Mayo Clinic, where the postoperative inflammation was ultimately stabilized. Prior to stabilization, however, the patient went through a series of unsuccessful attempts to diminish his proptosis through the use of steroids, radiation therapy and two major orbital decompression surgeries, which triggered a severe autoimmune reaction.

The patient claimed he was not informed of the risk of an autoimmune reaction following this type of surgery and if the insured had not performed the original surgery, these subsequent complications would not have occurred.

Analysis

The underlying liability issue in this case was whether or not it was appropriate for the insured to perform lid surgery on this patient given the status of his Graves’ disease at the time. Oculoplastics experts were split in their opinions. Plaintiff experts set forth that the standard of care for Graves’ patients is to do nothing because of the danger that surgery may accelerate the disease. They argued that surgical intervention should not be undertaken unless visual acuity is imminently threatened. Furthermore, if surgical intervention is undertaken, the approach should be decompression or radiation therapy prior to lid adjustment surgery. Defense experts, on the other hand, opined that the patient’s Graves’ ophthalmopathy was stable, that his disease would have worsened with or without surgery, and that the procedures performed by the insured did not cause the disease to accelerate.

A related issue was alleged lack of informed consent regarding the possible complications and poor documentation of the risks of surgery for a patient with Graves’ disease. Causation also was disputed. Experts for the defense opined that the patient’s underlying Graves’ disease caused the claimed damages, whereas plaintiff experts alleged that the lid surgery initiated the long series of medical dominoes that befell the patient.

Riddled with conflicting views on every substantive medical question, the case turned out to be a battle of the experts. Defense counsel cautioned that the sympathetic appearance of the plaintiff, the lack of informed consent documentation regarding possible complications and risks, and a jury’s probable inability to sort through the complex medical facts would likely result in a plaintiff verdict. Because opinions varied so widely and testimony was not decisive on either side, each side would be able to present a plausible argument, leaving a confused jury to decide. It was counsel’s opinion that the jury would have a great deal of sympathy for the plain-tiff, who claimed to be uninformed of the possible consequences of surgery, and award him compensation.

Risk Management Principles

The insured showed good judgment by requesting a medical clearance for surgery from the internist, but by failing to document it, his credibility was called into question and he was left without any defense. After consulting with his private counsel, the insured made the decision to settle rather than be subjected to the ramifications of an excessive plaintiff verdict.

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.

Global Perforation and Vision Loss in High Myopic, Deaf Patient

By Paul Weber, JD

OMIC vice president of risk management

Digest, Summer/Fall 2004

ALLEGATION  Negligent choice of anesthesia and failure to communicate patient history to anesthesiologist, resulting in globe perforation and loss of vision.

DISPOSITION Settled with indemnity payments on behalf of the insured ophthalmologist and codefendant anesthesiologist.

Case Summary

A 36-year-old deaf male was referred to the insured for cataract surgery. He presented with cataracts OU and myopic degeneration. VA was 20/400 OD and 20/60 OS in a dark room and 20/100 OS with the lights turned up to normal. The patient elected to have cataract surgery on the left eye only because there would have been little to gain from surgery on the right eye. The risks and benefits of surgery were discussed using a sign language interpreter with the patient and his wife. They were informed of the risk of complete loss of vision and/or loss of the eye with surgery, including the significantly greater risk of retinal detachment (RD) due to high myopia. The insured maintains that prior to surgery he informed the anesthesiologist that the patient had the longest eye he had ever encountered and that special care needed to be taken with the peribulbar injection.

Delivery of the anesthesia and surgical procedure proceeded uneventfully. On the first day post-op, when a vitreous hemorrhage was noted by the insured, the patient was immediately referred to a retinal specialist. The diagnosis was a posterior perforation in a mid-equatorial staphyloma from the anesthetic injection, resulting in a posterior RD. The RD was repaired the following day, but the patient developed a hyphema, a vitreous and subretinal hemorrhage, and a recurrent detachment postoperatively. Although the second reattachment was successful, post-op VA was light perception only.

The patient claimed that loss of vision resulted in loss of independence. He asserted that prior to surgery he was self-sufficient and independent, but afterwards he could no longer leave the house by himself, ride his bike, or walk to work. As a result of his vision loss, the plaintiff claimed his marriage ended and he was forced to move in with and become completely dependent upon his mother.

Analysis

The medical records reflected appropriate informed consent and no deviation in the insured’s surgical decision-making or technique. The ophthalmologist maintained that the risks of general anesthesia outweighed the risks of local anesthesia because, regardless of the shape of the eye, there is always space to safely place a peribulbar injection without perforating the globe if the physician stays outside the muscle cone. Unfortunately, the anesthesiologist entered the papilomacular bundle during administration of the peribulbar block and pierced the globe.

Several issues made defense of this case difficult. The anesthesiologist alleged that the insured did not fully inform him about the extent of the patient’s eye abnormalities. If he had, the anesthesiologist claimed he would not have performed a peribulbar block. Defense experts argued that the patient should have been offered the option of general anesthesia given the extreme myopia of his eye and the fact that deafness is a relative contraindication to a peribulbar block. Additionally, the patient’s staphyloma was not documented in the medical record and there was a discrepancy between the axial length determined by the MRI (27mm) and the axial length determined by the ultra-sound (35mm). Furthermore, a PAM (Potential Acuity Meter) test was never performed, and there was no evidence that cataract surgery would have benefited this patient.

Risk Management Principles

Documentation of eye abnormalities must be meticulous; discrepancies between test results must be resolved before surgery; and diagnostic procedures must be thorough. The final determination as to what type of anesthetic to use should be made jointly by the anesthesiologist and the ophthalmologist, taking into consideration the patient’s medical sta- tus and any significant ocular abnormalities. Documentation should include the medical reasons for the choice of anesthesia. Discus- sions with a hearing and visually impaired patient regarding the risks and benefits of eye surgery and anesthesia options and the signing of consent forms should take place at least one day prior to surgery. On the day of surgery, the patient should again verify that he/she has made an informed decision.

Orbit Compartment Syndrome Leads to Poor Outcome Following Blepharoplasty

By Ryan Bucsi, OMIC Senior Claims Associate

Digest, Fall 2005

ALLEGATION  Failure to monitor and treat bleeding following an upper lid blepharoplasty, resulting in com- plete vision loss OS.

DISPOSITION  Claim was settled prior to litigation.

Case Summary

A male patient in his late forties presented to an OMIC insured with a complaint of eyelid swelling after a minor injury. The patient was refracted to 20/20 OU, and a visual field test was performed, taped and untaped, revealing severe superior defects, which were completely relieved by taping up the eyelid skin. This confirmed the ophthalmologist’s impression of severe dermatochalasis and the need for a non-cosmetic upper lid blepharo- plasty. Prior to surgery, a platelet function test revealed abnormal EPI and ADP platelet func- tion. The surgical procedure was unremarkable, but the patient needed treatment with several medications for elevated blood pressure in the post-anesthesia recovery room. An hour-and-a-half after surgery, the nurse noti- fied the physician of ongoing bleeding and swelling. Detained in surgery, the ophthalmologist instructed the nurse to apply iced saline gauze and pressure dressings, which stopped the bleeding. Ninety minutes later, the insured examined the patient, found moderate lid edema and chemosis OS, and ordered an orbital CT scan. Three hours later, he reviewed the CT report of a hematoma on STS lateral to the globe with medial and some inferior dis- placement of the globe but no compression or displacement of the optic nerve. The patient’s left orbit was extremely tense with proptosis. Seven hours after he was first notified of the bleeding, the insured performed a left lateral canthotomy and lysis of the inferior crux of the lateral canthal tendon in the operating room, and transferred the patient to a hospital. While the edema had decreased by the following day, the patient’s vision was LP to NLP and never improved.

Analysis

When the insured ophthalmologist reported the claim, OMIC asked two oculoplastic experts to review it in light of the severity of the injury. The first expert felt that even though the patient had undergone previous surgical procedures without excessive bleeding, the abnormal platelet functions warranted a consultation with a hematologist before pro- ceeding with the blepharoplasty. Both experts raised concerns about the postoperative man- agement of the patient. While the insured’s decision not to perform bedside canthotomy and cantholysis when he first saw the patient in the recovery room was acceptable, his failure to closely monitor the patient over the next four to six hours fell below the standard of care. He was faulted for not adequately instructing the nurses on which symptoms to monitor and report to him. Noting that the insured was concerned enough to order a CT, the experts criticized the two-hour delay in reviewing it. Finally, when the insured examined the patient for a second time after surgery, he did not take immediate action to reduce the orbital pressure, such as a bedside canthotomy and cantholysis. Both experts felt that the insured’s failure to recognize and treat an evolving orbit compartment syndrome led to the patient’s poor outcome. Notified of the review, the insured ophthalmologist agreed to settle the claim within his policy limits and avoid the expense and risk of a trial.

Risk Management Principles

Hemorrhage during or following blepharoplasty is a significant vision-threatening risk that warrants prudent preoperative planning and postoperative management. Ophthalmologists should carefully evaluate any aspect of the patient’s condition that increases a particular risk (e.g, hypertension and bleeding disorders), obtain preoperative clearance from the appropriate specialist, and disclose the added risk to the patient during the informed consent discussion. When patients develop a complication, all members of the health care team (and family members if appropriate) should be advised of what to watch for and when and how to notify the surgeon. To avoid allegations of failure to diagnose, ophthalmologists should use the WIT-D approach.¹  “W,” the worst case scenario, is helpful in establishing a prioritized differential diagnosis (here, compartment syndrome); “I” represents the information needed to rule the diagnosis in or out; “T” stands for telling interested parties so they can help monitor the patient; and “D” is, of course, for documentation.

1. Carolyn Buppert, “A Witty (WIT-D) Approach to Avoiding Mistakes,” Gold Street 4(6), 2002.