Responsibilities of a Consulting Ophthalmologist
Digest, Fall, 1991
ALLEGATION Insured consulting ophthalmologist allegedly failed to adequately monitor, order and apply appropriate restraints on a psychiatric patient admitted through the emergency room.
DISPOSITION Settled out of court.
Background
Ophthalmologists are routinely asked to render emergency services and/or surgery to patients admitted through the emergency room. However, often the duties and responsibilities owed the patient seen on consult are not clear, particularly when there is an attending physician involved.
Case Summary
The patient was a 30-year-old female with a history of schizophrenia who presented to the hospital with a ruptured right globe. Upon admission, the parents indicated to the emergency room physician that their daughter had stopped taking her psychotropic medications, had not eaten for the past two days and had fallen in the bathroom. The patient’s attending psychiatrist was notified but did not come in to see the patient. The patient was ultimately admitted under the psychiatrist’s service and the insured was called in to repair the right eye. Postoperative orders included restraints if necessary.
Soft restraints were applied. However, shortly after the patient returned to her room, she self-enucleated her good left eye. She was taken to the OR where the insured again performed surgery. Unfortunately, the patient had avulsed the optic nerve which left her blind in both eyes.
Although the insured did not call or speak to the psychiatrist directly, the medical record revealed that he had ordered the patient’s psychiatrist be contacted for medications if necessary to sedate her. In addition, restraints were ordered “to keep hands from eyes.”
Medical records from past admissions revealed the patient had suicidal tendencies which her psychiatrist was aware of and which should have prompted him to take appropriate measures for her safety during this admission.
Outcome
The hospital settled out of court for $10,000. Although the OMIC insured said he did not suspect that the initial injury to the eye was self-inflicted, the insured and carrier believed the emotional issues and publicity surrounding this incident would compromise defense of the claim. The ophthalmologist agreed to a nominal settlement. The psychiatrist ultimately settled out of court for $250,000.
Risk Management Principlesand Commentary
This case offers a number of suggestions for ophthalmologists who are called in as consultants:
- Familiarize yourself completely with your hospital’s policy for admitting patients under the name of another physician.
- Communicate directly with the attending physician. Do not delegate this responsibility to the ER or nursing staff.
- Thoroughly document all conversations with the attending physician and nursing staff.
- If the emotional or psychiatric status of the patient is at question, take appropriate measures to insure the patient’s safety.
Failure to Diagnose Pseudomonas Infection
By Stacey Meyer
OMIC Assistant Claims Manager
Digest, Spring 2002
Allegation
Delay in diagnosing and treating pseudomonas infection.
Disposition
Case settled on behalf of ER physician with a nuisance amount contributed by insured ophthalmologist.
Case Summary
A 62-year old male with a history of contact lens wear presented to the ER with complaints of pain, redness, and itching in his right eye. The ER physician examined the patient and found a tearful, hyperemic right eye and a central corneal abrasion. He irrigated the eye and treated it with Gentamicin and a patch. The patient was asked to return the following day, at which time he presented with severe pain, discharge, sensitivity to light, and inability to see. The same ER physician performed a slit lamp examination, which revealed that the corneal abrasion had doubled in size. He did not perform a visual acuity exam. The ER physician contacted the on-call ophthalmologist, who gave instructions for the patient to keep the eye patch on for 24 hours and either return to the ER the following day, which was Sunday, or follow up at his office on Monday.
The patient self-referred to another ophthalmologist on Monday and was found to have a severe, advanced inflammation of the cornea and markedly reduced vision. A culture of the eye was positive for pseudomonas. The patient underwent a corneal transplant but subsequently lost all vision in the right eye.
Analysis
The plaintiff alleged that the ER physician performed an inadequate eye examination, failed to suspect corneal infection, and failed to ensure that an ophthalmologist examined him when he returned the following day. His expert opined that the on-call ophthalmologist was equally at faulty for failing to appreciate the seriousness of the patient’s complaint and for not coming into the ER to examine the patient on Saturday when he received the call, regardless of whether the ER physician requested such an examination. According to the plaintiff’s expert, the ophthalmologist should have been suspicious of the corneal ulcer given the history of the patient’s condition, his failure to improve, and the fact that the corneal abrasion had doubled in size overnight.
OMIC’s defense expert countered that the insured ophthalmologist made a reasonable assessment that this was a non-urgent situation based upon the description provided by the ER physician. Further, lack of any evidence of a corneal infiltrate or inflammatory response effectively ruled out a significant infectious or inflammatory process of the cornea and was compatible with a traumatic corneal abrasion. Since the insured was not asked to see the patient but only to make suggestions for the patient’s care, the defense maintained that the insured’s recommendation to continue treatment with cycloplegics and re-patching was reasonable.
OMIC’s defense team filed a Motion for Summary Judgment on the legal issue of whether there was in fact a physician-patient relationship between the insured and the plaintiff. Unfortunately, the court denied the motion and held that a factual legal issue did exist. The defense team and the insured agreed this would be a difficult case to argue before a jury and settled on behalf of the ER physician with a nuisance amount contributed by the insured ophthalmologist.
Risk Management Principles
It is common practice for an on-call specialist to rely on the examination of the ER physician. Yet, as this case demonstrates, while the ER physician retains primary responsibility for the patient’s care, the on-call physician also can be held accountable and responsible for the patient’s outcome. It is up to the on-call specialist to elicit enough factual information to ensure that the ER physician has thoroughly examined the patient and that the signs and symptoms reported by the ER physician are complete and accurate.
Often in such cases, a dispute arises over what was said by the two physicians. Documenting the details of a telephone conversation with an ER physician is an important as documenting the findings of an office examination. Recollections of what was discussed weeks and months later are unreliable and open to dispute, especially when the liability of either party depends on these details.
Traumatic Eye Injury and Patient Abandonment
By Ryan Bucsi, OMIC Senior Litigation Analyst
Digest, Fall 2006
ALLEGATION: Failure to go to ER to see patient and failure to wait for or reschedule a missed office appointment.
DISPOSITION: Case settled for $10,000 prior to litigation.
Case Summary
A 25-year-old female presented to an emergency room after accidentally stabbing herself in the left eye with a knife while she was picking up her child. The emergency room physician performed a slit lamp examination and noted an intact pupil, a partial-thickness laceration in the lower tangential cornea touching the sclera, specks of blood in the laceration, an intact anterior chamber, and normal fundus. He contacted the on-call ophthalmologist to set up a follow-up appointment for the next day. The patient was discharged with instructions to apply Erythromycin ointment and a double patch for a period of 24 hours. The next day, the patient failed to show up at the ophthalmologist’s office for her 9 am appointment. At 9:40 am, she contacted the insured as he was driving back home to say she had just woken up, would need to find a sitter for her child and a ride to his office, and could arrive there in an hour and a half. The insured became angry and instructed the patient to proceed to the ER or seek treatment from another physician. At 10:35 am, the patient presented to a different ER and was diagnosed with a full thickness corneal laceration with hypopyon. She underwent multiple procedures, was twice readmitted to the hospital, and ended up with a VA of 20/40 OS, correctable to 20/25.
Analysis
When he telephoned the ophthalmologist, the ER physician informed him that the patient had suffered a laceration that had not entered the anterior chamber, and assured him that he was comfortable performing the eye exam and didn’t need the ophthalmologist to see the patient in the ER. Experts who reviewed the records felt the ER physician failed to diagnose a full-thickness laceration and the ophthalmologist did not ask enough questions to verify the diagnosis (e.g., is the anterior chamber clear or are there white or red blood cells?). Moreover, if the insured had seen the patient in the ER, he probably would have sutured the laceration and prescribed antibiotics, thereby substantially reducing the patient’s subsequent problems. An attorney retained by OMIC to review the defensibility of this case prior to formal litigation feared the plaintiff might successfully argue that by agreeing to examine the patient the day after the ER visit, the insured had established a physician-patient relationship. Therefore, his refusal to return to the office to examine the patient might constitute abandonment and arguably could have contributed to the subsequent complications that required multiple procedures. The attorney’s main concern, however, was that the potential venue in which the case would be tried was an urban center known to be plaintiff-oriented. The insured agreed that the best course would be to settle the case, which OMIC was able to do for an amount far below the plaintiff’s demand.
Risk Management Principles
There were several things the ophthalmologist could have done to promote patient safety and reduce his liability risk. First, knowing the risk of a full-thickness corneal laceration, he should have taken a more active role in the phone conversation with the ER physician and then carefully documented the call. If the answers to his questions raised concerns, or he couldn’t rule out a full-thickness laceration, he should have evaluated the patient himself. Although his anger at the patient’s delay in presenting to his office was understandable, especially on a Sunday, it did not relieve him of his duty to provide ongoing care to a patient with an acute condition whom he had agreed to treat. Once a physician-patient relationship has been established, a physician has an ongoing responsibility to the patient until the relationship is terminated by one of the parties. In order to terminate the relationship, the physician must give the patient written notice sufficiently in advance to allow the patient to secure the services of another physician. Before sending such notice, however, acute problems must be resolved. All ER patients referred for follow-up arguably have unresolved acute problems, so the on-call physician must either continue to treat the patient or arrange for another physician to do so. In this case, the insured should have carefully queried the patient about her condition; this likely would have revealed the need for urgent care, and he could have offered to meet her at the ER to provide it. See “Terminating the Physician-Patient Relationship” at www.omic.com.
Medication Error Underlines Importance of Informed Consent
Digest, Summer, 1992
ALLEGATION Insured ophthalmologist was charged with negligence as a result of prescribing Betagan to an asthmatic patient which allegedly resulted in worsening of her asthma.
DISPOSITION Case was settled prior to instituting a lawsuit.
Background
The practice of ophthalmology calls for the use of very specific ophthalmic medication for the treatment of various eye conditions. However, it is important to consider a patient’s preexisting medical condition before prescribing some of these medications. Several OMIC claims have been identified where the ophthalmologist prescribed a beta-blocker for glaucoma therapy without considering its effect on the patient’s preexisting asthmatic condition. In these cases, the potential for the worsening of the asthma was alleged to have never been discussed with the patient prior to instituting a trial run of the medication.
Case Summary
The patient was an elderly female with a history of asthma which was noted by the OMIC insured on the first visit. On one visit, the insured noted elevated intraocular pressures of 29 OS and 16 OD and prescribed Betagan. The patient returned a month later complaining that her asthma had worsened since using the Betagan. The insured discontinued the medication and the patient improved. Later, the patient claimed she sustained “substantial” lung damage as a result of being on the medication for one month.
Outcome
Although the patient was never able to show “substantial” lung damage from the one-month use of the Betagan, it was believed that the drug aggravated her condition. Because there were no discussions with the patient indicating her asthma might be exacerbated while on this medication, the case was settled for a nominal amount.
Risk Management Principles and Commentary
This case demonstrates two very important principles in medication-error related claims and informed consent:
- Always review a patient’s medical history for preexisting medical conditions prior to prescribing any medication.
- Discuss the risks and adverse reactions associated with any prescribed medication.
If the patient is at least informed of the risks and complications associated with a particular medication and consents to try it, the ophthalmologist’s exposure is diminished.
Lack of Informed Consent for Use of Research Drug
By Mary Kasher, MSN, JD
OMIC Claims Manager
Digest, Fall 2000
Allegation
Lack of informed consent for use of investigational drug during cataract surgery.
Disposition
Plaintiff dismissed insured ophthalmologist from suit.
Case Summary
The plaintiff was a 57-year-old woman who had been a patient of the insured for several years during which time her refraction had changed every two or three years. At one visit, she complained of glare and a starburst effect along with a continued decrease in vision. VA OD was 20/70 and OS 20/80. After a discussion of the treatment options available (which included cataract surgery or continuing to adjust her refraction), the patient chose cataract surgery. She also agreed to participate in an ongoing research study on the effects of an experimental drug for cataract surgery after discussing the possible risks and complications of the drug with the ophthalmologist. The consent form was signed and witnessed and the patient was given a copy to take home.
The surgery was uneventful. Intraocular pressure in the surgical eye was normal at the end of the procedure in the surgical eye after the experimental solution was instilled. At the first postoperative visit the following day, intraocular pressure was again normal and vision was improved. Later, the patient recalled going to church and being amazed at how well she could see. About a week after the surgery, the patient began to notice that it took a long time for her eyes to adjust from bright outdoor light to dim indoor light and that her right eye appeared much hazier that the left one. She called the insured’s office the next morning. Upon examination, the insured found peripheral vision in the right eye to be extremely decreased. The patient was experiencing complete darkness or blindness from her outer vision to the center of her vision where she had a small “hole” of vision that appeared to be in focus. The dark area has not improved since this evaluation. The actual cause of vision loss was never determined, although there was conjecture that it was the result of an injury to the retina related to the investigational drug or transport solution.
Analysis
Every medical research project varies in purpose and design, but two areas consistently surface as primary issues under legal analysis: lack of informed consent and any breach in the research protocol. Anytime a procedure involves an experimental substance or process, the patient must be fully informed of the risks involved and sign the “approved” informed consent form for that particular program. Instructions for obtaining informed consent in a research situation must be followed without variation or the consent will be considered flawed and challenged for validity. The research protocol setting out the criteria by which patients are eligible for study and how the procedure is to be conducted also must be followed without exception.
In this case, the insured followed the consent protocol meticulously. All designated forms were signed and placed in the record, and the testimony of the office staff and the patient herself supported all signed informed consent documents. In addition, the insured made an exceptionally strong appearance at his deposition. He was well prepared and presented the facts and circumstances clearly and with appropriate concern. The plaintiff attorney was so impressed with the insured’s performance and clarity of his records that he decided it would be better for the plaintiff’s case to dismiss the insured.
Risk Management Principles
The insured’s dismissal from this legal quagmire demonstrates some sound legal principles for medical practice. When participating in a research study, it is extremely important to follow the protocols with particularity. If any patient harm develops from the study, the entire process will be scrutinized. Medical research study cases present unique documentation challenges since the record can give the plaintiff attorney many avenues for finding noncompliance. It is the completeness of the documentation that will prevail in proving that research protocols were followed as directed.
