Failure to Diagnose Bilateral Acanthamoeba Keratitis
By Randy Morris, JD
OMIC Claims/Litigation Associate
Digest, Summer 1999
ALLEGATION Failure to diagnose acanthamoeba keratitis in a timely manner.
DISPOSITION Defense verdict at trial.
Case Summary
A 35-year-old woman was seen by the insured ophthalmologist on an emergency referral from an optometrist. The patient had been in a car accident and reported that her contact lenses had broken in both eyes and were causing her irritation and pain. The optometrist had placed the patient on Vira-A ointment, Viroptic, and Tobrex. The insured diagnosed bilateral keratitis, discontinued the Viroptic and Tobrex, and started the patient Blephamide ointment.
The patient returned two days later and was seen by another optometrist in the insured’s office. The optometrist diagnosed bilateral keratitis with unknown etiology and asked the insured to confirm the diagnosis. The insured confirmed the diagnosis and continued the Blephamide. The patient returned three days later with diffuse keratitis in the right eye as noted by the optometrist. The insured instructed the optometrist to dilate OU with Hyoscine and patch the right eye with Maxitrol ointment. The patient was to continue using Blephamide in the left eye.
The patient returned the next day complaining that her right eye was very painful and that she was having difficulty driving. The optometrist spoke with the insured’s partner about taking a culture, but the partner did not feel it was appropriate and recommended that all medications be stopped. Two days later, the insured’s partner saw the patient and diagnosed bilateral keratitis deteriorating in spite of treatment. He referred the patient to a nearby university, where specialists diagnosed bilateral acanthamoeba keratitis. The patient eventually underwent two corneal transplants and a cataract operation.
Analysis
Defense experts argued that acanthamoeba keratitis is a very difficult diagnosis to make and can often masquerade as another type of infection. Most cases are not diagnosed for several months so they felt the minimal delay in this case was acceptable. They pointed out that the insured attempted several treatment approaches and, when there was no improvement, appropriately referred the patient to specialists.
The plaintiff’s expert countered that steroids are contraindicated in the absence of a specific diagnosis and that the insured should have cultured the eye sooner. The defense was able to call into question the credibility of this expert because he had never been involved in the study of acanthamoeba nor was he familiar with the disease process.
Risk Management Principles
This case was well positioned for trial with excellent defense experts, relatively low damages, and a 70 percent probability of prevailing, but there remained a potentially significant complication. The insured was quite emotional about being the target of a lawsuit and defense counsel was concerned that he might appear uncomfortable and nervous in front of the jury. To make matters worse, the plaintiff was an attractive likable woman who could easily win the jury’s sympathy.
OMIC assigned a skilled witness preparation coach, who worked with counsel to help the insured rein in his emotions at trial and come across as a competent physician. When the insured took the stand, he appeared patient and was able to explain the situation to the jury in layman’s terms. The jury understood what the insured said and believed in his ability as a physician. In the end, the jury delivered a verdict in his favor.
While being the defendant in a medical malpractice lawsuit is never a pleasant experience, this case illustrates the importance of not letting the emotional stress of the situation impact the defense of the case. It is important to remember that a physician’s demeanor and appearance often are the factors that “make or break” a case in the eyes of the jury. Patience, reason, and dedication to the defense of one’s care are not simply helpful platitudes. They are absolute necessities to a successful outcome in a medical malpractice action.
Failure to Obtain Informed Consent for Vitrectomy
By Delphine Cherewick, JD
OMIC Claims Associate
Digest, Fall 1999
ALLEGATION Failure to obtain informed consent for vitrectomy, negligent surgery resulting in endophthalmitis, and negligent postop care.
DISPOSITION Defense verdict a t trial on behalf of insured.
Case Summary
The patient was a 43-year-old woman who had been experiencing flashers and floaters for several months. She consulted a retinal specialist who injected steroids, and although her visual acuity remained good, the floaters continued to progress. For this reason, she sought a second opinion from the insured.
On the initial visit, there was no iris neovascularization in either eye. The fundus examination of the left eye showed 2+ vitreous cells and a very prominent posterior vitreous detachment (PVD). The insured diagnosed uveitis and PVD of the left eye and offered the patient the option of an elective vitrectomy. The insured explained that there could be serious complications associated with a vitrectomy, including the development of cataracts, infection, retinal detachments or hemorrhage, but he did not specifically mention loss of vision and he did not document this conversation in the medical record. The only consent form signed by the patient was a general hospital surgical consent.
The procedure was performed by the insured without apparent complication, and Vancomycin and Aristocort were injected subconjunctivally. The following day, the insured noted mild ptosis, redness, and edema of the eyelid. The patient complained of occasional sharp pains to her left eye. Later that night, the patient began to experience dull aching pain in her left eye and by morning she had greatly diminished visual acuity in her left eye. She was immediately seen by the insured and hospitalized for probable bacterial infection. The insured performed a vitrectomy wash out and injected appropriate antibiotics. Cultures grew out coagulase negative staphylococcus, and despite the insured’s treatment, the patient’s vision continued to decrease. Vision loss progressed to no light perception and the patient was ultimately informed that she would likely require an enucleation.
Analysis
Postoperative infection leading to endophthalmitis is a concern in any surgery involving the eye. It happens to the best of surgeons in the most optimum of circumstances, often with devastating results. Until recently, endophthalmitis cases were extremely difficult to defend because the injury was usually severe and the experts could be counted on to disagree on the administration of antibiotics specifically and postoperative care generally. Presented with conflicting and confusing medical facts, juries generally sided with plaintiffs who had clear evidence of injuries.
This case, on the other hand, benefited from an evolving medical-legal approach to endophthalmitis cases that has been increasingly successful in the courtroom. Citing findings from the 1994 Endophthalmitis Vitrectomy Study commissioned by the National Eye Institute, defense experts were able to support the insured’s course of treatment and show the jury how and why certain approaches to infection are used. This defense tactic also had the effect of discrediting plaintiff experts if they disagreed with the “established” experts who conducted the study.
Risk Management Principles
The most troublesome aspect of this case was the lack of informed consent documentation. It is important to document informed consent in any surgery, but it is imperative in an elective surgery. The decision to have surgery is not as clear cut when it is elective and it is easier for the plaintiff attorney to argue that the plaintiff would not have had the surgery had he or she known of all the risks.
In this case, the insured failed to document his conversation with the patient because of two very common occurrences in the medical office environment: a hectic schedule that does not allow sufficient time for accurate documentation, and complacency with repetitious documentation, such as the risks of surgery. Fortunately, the patient had signed a hospital consent form. This enabled the defense attorney to successfully argue that based on the insured’s usual and customary practice, it was more likely than not that he had instructed the patient on the risks of the procedure.
Unnecessary Surgery for Pterygia
By Mary Kasher, MSN, JD
OMIC Claims Manager
Digest, Winter 2000
ALLEGATION Unnecessary pterygium surgery and lack of informed consent.
DISPOSITION Defense verdict at trial on behalf of insured.
Case Summary
A 46-year-old woman presented to the insured with a growth on her right eye of three months’ duration. Visual acuity was 20/20 OU. Slit lamp exam showed a 1.8 mm pterygium OD and a 1.2 mm pterygium OS. The insured diagnosed growing pterygia OU. He instructed the patient to use hot compresses six to eight times a day and prescribed Vasocidin eye drops four times a day in the right eye and Tobradex ointment at bedtime for two weeks. Five days later, the patient called the insured to complain that her job as an attorney did not allow her to take time to apply compresses and eye medications throughout the day. She complained that her eyes were constantly bothering her and insisted on having the pterygia removed.
Soon after, the patient underwent a superficial keratectomy OU. Visual acuity was 20/20 OU on her first postop visit, and the wounds were healing well. Over the course of the next three visits, the incisions continued to heal, but the patient complained of redness in both eyes and was treated with Opcon-A. She did not return until one year later when she again complained of redness in both eyes. Slit lamp exam showed the pterygia had returned and now measured 1.4 mm OD and 1.2 mm OS. The insured suggested possible repeat surgery and prescribed three types of eye drops to try to eliminate the redness. The patient did not return and soon filed a claim charging that the insured had performed unnecessary surgery, without informed consent and without exhausting conservative remedies.
Analysis
That the plaintiff’s attorney was highly skilled and well known for courtroom victories and the patient was a credible and sympathetic plaintiff were significant concerns in an otherwise defensible case. The plaintiff probably would have accepted a small settlement, and in fact, the plaintiff’s attorney did offer to settle at one point for $9,999. Even though this would have provided an “easy way out,” the insured, OMIC, and defense counsel all agreed to proceed to trial rather than settle.
At trial the case was ably presented by both sides, and after a short deliberation, the jury came back with a defense verdict. On final analysis, the case was won on the strength of the medical record, which showed the insured had obtained informed consent for surgery, and on the presentation skills of the defense expert, who was able to support the insured on the medical issues. The insured was well prepared for his testimony and impressed the jury as concerned and responsible by being present in the courtroom throughout the trial.
Risk Management Principles
The decision to take a case to trial or not is a serious matter. Ask yourself the following questions before you decide:
What are the chances of obtaining a defense verdict? Even if there is no medical negligence, as in this case, there are other factors that must be weighed in determining the overall chances of success in a courtroom. Is there likely to be a battle of the experts that will confuse a jury? Will a sympathetic plaintiff or charismatic plaintiff attorney sway the jury? How effective will you be as a witness and will you hold up under the stress of cross-examination?
Will the verdict be reported? A defense verdict does not usually need to be reported; however, a plaintiff verdict must be reported to the National Practitioner Data Bank and the appropriate state agency. The amount of the verdict is often used to determine the severity of the case.
How much time will a trial take from my practice? Most trial attorneys will request that the physician be present throughout the entire trial or at least for most of the major testimony before the jury. This could involve a time commitment of anywhere from five days to five weeks, depending on the complexity of the case.
Is there a chance that the verdict could exceed my policy limits? If there is a possibility of a large verdict, it is wise to consult with a personal attorney as to what options are available to protect personal assets.
Failure to Diagnose Retinal Detachment
By Stacey Meyer
OMIC Claims/Litigation Associate
Digest, Spring 2000
ALLEGATION Failure to provide a prompt examination resulting in delayed diagnosis and treatment of retinal detachment.
DISPOSITION Case settled on behalf of insured ophthalmic group.
Case Summary
A 53-year-old female patient who had been seen by the insured ophthalmologist for a number of years called the insured’s office with complaints of seeing streaks and black spots. She was given an appointment in three weeks even though she later claimed that she told the receptionist it was an emergency and she needed to be seen immediately. Three days later, the patient called the insured’s office to report seeing spots and showers of stars and asked to be contacted if any appointments became available before her scheduled appointment in three weeks. Five days later, she again contacted the insured’s office to report seeing black over one-third of her vision in the affected eye. She was given an appointment in seven days. The patient presented to the insured’s office one day before her scheduled appointment and was diagnosed with a retinal detachment. She was immediately referred to a retinal specialist to reattach the retina. The surgery was successful but the patient had a minor loss of vision and diplopia.
Analysis
This case centered around a factual dispute between the plaintiff and the receptionist who took the telephone calls regarding the urgency of the plaintiff’s medical complaints. The plaintiff alleged that the office staff ignored her complaints and thus did not treat the situation as an emergency. She also maintained that had the staff brought her complaints to the ophthalmologist’s attention, an appointment would have been obtained in a timelier manner, and she would not have suffered a retinal detachment with subsequent diplopia and vision loss.
In depositions, the insured’s office staff all testified that if the patient reported the symptoms she claimed, they would have scheduled her for an immediate appointment. Although the practice had a written protocol for scheduling office visits based upon patient symptomology, the staff had not documented their conversations with this patient. The receptionist who fielded the plaintiff’s calls stated that it was his practice to ask patients who were experiencing severe symptoms, such as floaters or loss of vision, to come in immediately. Given the symptom described by the patient (blurry vision), the receptionist did not feel the situation presented an emergency.
Our experts contended that if a patient calls with complaints of blurry vision, setting an appointment at a later date is within the standard of care; however, a patient complaining of showers should be seen immediately. Phone records confirming the plaintiff’s calls to the insured’s office on three separate occasions indicated that she was concerned about her condition. On one occasion, the insured’s staff had recorded the symptoms reported as blurred vision but had not recorded any other information, ruling out any additional problems such as loss of vision, black spots, etc. Thus, the only information available to the defense to work with was the staff’s memory of the events weeks later. Lacking the benefit of documentation of the phone conversations between the patient and office staff, a jury would have been likely to base its decision solely on the credibility of the parties involved. In light of this, the defense team and the insured agreed it would be difficult to argue with the plaintiff’s contention that the sooner one seeks and receives medical attention, the better the outcome.
Risk Management Principles
Improper triage is a source of potential malpractice claims, which is why it is critical that individuals answering the telephone be trained to recognize possible emergencies and schedule such patients appropriately. Documenting the details of a telephone conversation with a patient is as important as documenting the findings of an office examination. Recollections of what was discussed weeks and months later are unreliable and open to dispute without notations in the patient’s record to back them up. There are many products available to assist ophthalmologists and office staff record information from telephone conversations and transfer it to the chart, such as OMIC’s Patient Care Phone Call Record pads. Please contact the Risk Management Department to order.
Jury Education Averts Potentially Large LASIK Verdict
By Richard Isom
OMIC Claims Associate
Digest, Winter 2003
ALLEGATION Negligent LASIK from decentration and resulting in multiple images.
DISPOSITION Plaintiff verdict refunding cost of surgery.
Case Summary
A 46-year-old female was interested in having LASIK surgery. She presented to the insured with complaints of cloudy and blurry vision, particularly in the right eye. VA with correction was 20/30+2 OD and 20/25-2 OS. The patient returned a week later to complete the surgical workup, including preoperative studies and informed consent. Three weeks later, she underwent LASIK on the right eye. On the first postop day, the patient complained of cloudy and blurry vision. On the second postop day, she reported seeing triple images. Her vision was less cloudy but continued to be blurry. Uncorrected VA OD was 20/200. The patient was seen frequently by the insured over the next week. On the twelfth postop day, when there still was no improvement in vision, the insured sent the patient for a second opinion. Corneal topography later that same day determined that the ablation zone was decentered temporally.
The patient returned to the insured for surgical enhancement. Prior to the enhancement, VA was 20/60. Six weeks following the initial LASIK, the patient underwent surgical enhancement by the insured. In the immediate postoperative period, VA was 20/80 with triple images. One month later, VA was 20/60 with multiple images. Last reported VA was 20/30, but the patient continued to complain of multiple images.
Analysis
The patient eventually filed suit against the insured, alleging negligent LASIK from decentration and resulting in multiple images. Experts for the plaintiff alleged that the insured lacked the expertise to perform the procedure and most likely misaligned the beam causing decentration. They were critical of the insured for inadequate charting.
The defense countered that the decentration was most likely caused by the patient’s failure to fixate properly because even very subtle eye movement, undetectable by the physician, can cause decentration. Further, the defense argued that decentration is a known complication of LASIK, that it can occur in the absence of negligence, and that it was more likely to occur given the technology available at the time of the plaintiff’s surgery. The jury was advised that every procedure has risks, that there is no guarantee of success as stated in the informed consent, and that recent advancements in technology are now able to track a patient’s eye movements and help reduce the likelihood of this particular risk.
Risk Management Principles
LASIK surgery continues to undergo frequent advancements in technology and technique. Available technology at the time of this surgery did not allow for detection of subtle patient eye movement, whereas current technology has made it possible to detect minor eye movements and avoid most alignment problems. Additionally, new technology has made correction of unsatisfactory results a possibility, thus potentially reducing the damages a plaintiff is likely to be awarded.
At trial, experts, witnesses, and attorneys on both sides were prepared and well received by the jury. A battle of the experts might have ensued had the defense not presented a timeline charting available LASIK technology and potential complications at the time of and subsequent to the surgery in question. This refuted the plaintiff’s claim that the insured ophthalmologist was negligent in not detecting the eye movement that caused misalignment of the beam and resulted in decentration. As a result, and because of the education they had received during trial about the potential risks and benefits of LASIK and available enhancements to correct poor results, the jury was disinclined to award a large verdict and decided the plaintiff was entitled only to the cost of surgery.
That LASIK is now perceived by the general public to be a relatively benign procedure was apparent in a local newspaper article about the trial. The article reported that 70% of LASIK procedures are completely successful and that less than 5% of LASIK patients suffer negative side effects. Given the number of successful procedures and the advancing technology, the average juror may no longer view LASIK as the frightening and dangerous procedure it once was thought to be.
