Codefendant Ophthalmologist Testifies Against OMIC Insured at Trial
by Ryan Busci, OMIC Senior Claims Associate
Digest, Winter 2005
ALLEGATION Negligent cataract surgery and displaced intraocular lens, resulting in endophthalmitis and enucleation.
DISPOSTION Defense verdict for OMIC insured. Codefendant settled with an indemnity payment.
Case Summary
An OMIC insured ophthalmologist performed a cataract procedure on a 73-year-old male patient. During the procedure, there was a posterior capsule rupture with some corneal edema. The insured performed a Weck cell vitrectomy, an “open sky” procedure that uses a cellulose sponge to hold the vitreous as it is cut with scissors. The following day, he noted that the patient still had blood in the eye and visual acuity of hand motion. Seven days postoperatively, the insured concluded that there was still blood in the eye but no sign of infection. Visual acuity had improved to count fingers.
Approximately two weeks later, another ophthalmologist saw the patient in the emergency room. This ophthalmologist diagnosed a dislocated intraocular lens. He admitted the patient to the hospital and removed the intraocular lens; no antibiotics were administered during this procedure. He discharged the patient on the second postoperative day despite examination evidence of increased inflammation, which was left untreated.
One day after discharge, the patient presented to this ophthalmologist’s office with additional signs and symptoms consistent with an infection. The ophthalmologist administered topical antibiotics but took a “wait and see” approach and had the patient return in 24 hours. When the patient returned the following day, he was diagnosed with endophthalmitis.
The patient underwent a vitreous tap and injection of antibiotics by a third ophthalmologist but ended up with no light perception in the operated eye. Eventually, the patient required an enucleation and later developed orbital cellulitis, which required removal of the implant.
Analysis
Taking a case to trial, much like performing a surgical procedure, has its risks and potential for complications. In this case, OMIC had what it believed to be a unified defense for its insured going into trial but recognized the difficulties facing the codefendant ophthalmologist’s case.
During the first day of trial, the codefendant ophthalmologist settled with the plaintiff. He then testified that the insured’s Weck cell vitrectomy had created areas and grooves, which had allowed bacteria to land and grow, thus providing a tissue environment for the subsequent infection. This was new information that the codefendant had not offered in his deposition. Had OMIC and defense counsel known that the codefendant was going to be critical of the insured’s care, this may very well have changed the pre-trial evaluation of the defensibility of this case.
However, upon cross examination, OMIC counsel was able to get the codefendant to admit that it was not below the standard of care for the insured to have had the complication of the broken capsule or to have used the Weck cell for the vitrectomy in the initial cataract surgery. In fact, there were absolutely no signs of infection during the insured’s treatment of the patient and no signs of infection detected until after the codefendant’s removal of the intraocular lens.
The plaintiff and codefendant could not dispute these medical facts or OMIC’s strong expert witness support for the insured. The jury agreed and rendered a defense verdict on behalf of the OMIC insured.
Risk Management Principles
Statements criticizing the care of another treating physician are often the root cause of malpractice claims and lawsuits. It is imperative to exercise great caution when commenting on another physician’s care in front of a patient. Concerns about the care of a treating physician are more appropriately discussed with the physician, not with the patient.
Going into trial with a unified defense is extremely helpful to the overall defense of a case. Finger pointing among defendants is usually not well received by a jury. When codefendants criticize one another, they are essentially testifying for the plaintiff. Shifting blame or criticizing someone else does not guarantee that you will not also be named in the lawsuit nor will it necessarily help you at trial.
Fear and Loathing of Malpractice Litigation
By Paul Weber, JD
Mr. Weber is Vice President of OMIC’s Risk Management/ Legal Department.
Digest, Fall 2003
To the view the tables referenced in this article, go to http://www.omic.com/new/digest/DigestFall_03.pdf
Media coverage of the impact of malpractice litigation typically focuses on multimillion dollar jury awards, skyrocketing insurance premiums,and physicians who decide to relocate or retire early because an unfavorable malpractice climate has made it too expensive to continue practicing in their state. Regrettably, scant coverage is given to the pervasive negative impact that fear of litigation has on the decision making of physicians and the delivery of health care services.
In March 2002, a Harris poll was conducted by phone and online of more than 300 physicians to provide insight into the impact that fear of litigation has on the practice of medicine and the delivery of medical care. (The results of the Harris poll, as well as other polls relating to the medical liability crisis, can be found on the Common Good web site at http://www.commongood.org/blog/c/health-care)
OMIC interspersed many of the Harris poll questions throughout its recent Mock Litigation interactive presentation before more than 230 ophthalmologists in Anaheim. The results of OMIC’s informal “poll” are strikingly similar to the Harris poll. Both polls indicate that fear of litigation influences all aspects of health care decision making, from ordering tests, prescribing medications, and making referrals to a reluctance to discuss adverse events with colleagues.
That many medical professionals’ behavior is clearly influenced by their fear of litigation can perhaps be explained by the finding that the overwhelming majority of physicians (85% in the OMIC poll and 83% in the Harris poll) do not believe they can trust the current system of justice to achieve a reasonable result if they are sued. This widespread mistrust contributes to feelings of apprehension of possible lawsuits and encourages the practice of defensive medicine rather than care based on medical need.
The Harris and OMIC polls asked the following question concerning three areas of medical care: “Based on your experience, have you noticed fear of malpractice liability causing physicians to (1) order more tests; (2) prescribe more medications; and (3) make more referrals than they would based on professional judgment of what is medically needed?”
As Figure 1 shows, both polls overwhelmingly demonstrate that the omnipresent fear of having to deal with litigation results in excessive treatment. Not surprisingly, physicians were nearly in unanimous agreement in both polls (99% of OMIC respondents; 94% of Harris respondents) that these extra tests, medications, and referrals contribute in a significant way to health care costs. The fact is that every time a test is ordered or a treatment is rendered that is not medically necessary, health care funds are diverted away from a patient who really needs the care, while the patient undergoing the test or receiving the treatment is exposed to an unnecessary risk.
A paradox can be observed here. Even though physicians are increasingly using tests and referrals to avoid malpractice litigation, claims and lawsuits continue to rise. As Figure 2 shows, OMIC claims frequency has been rising steadily and substantially since 1998.
Apparently for OMIC insureds, more treatment does not result in fewer claims. Indeed, as Figure 3 demonstrates, some of the OMIC claims that have resulted in the largest payouts to patients are in fact related to allegations of failure to order a test leading to failure or delay in diagnosis or allegations of failure to make a timely referral leading to delayed treatment. The number of large payout cases ($500K and above) has increased severely since 1998. From the company’s inception in 1987 to 1998, there were only five large losses; there have been ten large losses in the ensuing five years.
The increase in frequency and severity of OMIC claims is not due to a decline in the quality of ophthalmic care. It remains constant that year after year, the vast majority of OMIC claims (over 78%) are disposed of without an indemnity payment to the patient. It is commonly accepted that most claims and lawsuits are attributable to a combination of unmet patient expectations regarding a procedure or course of treatment and poor doctor-patient communication. Throw the following technological and societal dynamics into the mix and you have a recipe for claims:
- Improved outcomes leading to unrealistic patient expectations.
- A large population of lawyers practicing in a litigious society.
- HMOs and other managed care entities contributing to real and perceived perceptions of problems with access to health care.
As a result of the current dysfunctional litigation system, there is an unfortunate sense of futility among physicians that there is little they can do to avoid being named in a malpractice suit. This sentiment is often expressed by OMIC insureds in surveys conducted by the Claims Department after a claim or lawsuit has been closed. One of the comments most frequently heard by insureds is that the claim was frivolous and there was nothing they could have done to avoid it. The following comment by one insured sums up the frustration felt by many with a tort system that seems unjust. “It appears that plaintiffs have unlimited rights and the accused have no rights. In the eyes of Medicare, state licensing boards, and hospital boards, doctors are presumed guilty and must prove their innocence. Reports of staggering malpractice jury awards add to the fear that regardless of the facts, regardless of guilt or innocence, doctors are at risk of losing everything they own with any lawsuit brought against them. These outrageous awards also encourage a ‘win the lottery’type of mentality on the part of plaintiffs and a feeding frenzy for lawyers hungry for cases. The current liability system is terribly unfair to doctors and in no way helps us take better care of our patients, which should be our primary goal as physicians.”
Physicians in both the OMIC and Harris polls agree that 95% of malpractice claims arise as a result of adverse results rather than actual error. However, in a litigious society, the priority is to find “fault” and not to be unduly concerned with whether it was an “adverse result” or an “error.” An emerging patient safety movement is critical of the current system of health care delivery for being overly complex,ineffective, and intrinsically hazardous. It proposes shifting the focus of malpractice litigation from finding fault to scientific and analytical review of medical errors with the goal of preventing such errors in the future.
The patient safety movement understands that as medical care becomes increasingly complex, there are many opportunities to improve quality and safety and reduce costs. Failures of the system occur as a result of a combination of multiple small failures, each individually insufficient to cause an accident but when combined, capable of leading to catastrophic injuries. Since fault is not the focus of the patient safety movement, it fosters among health care providers an open and ongoing analysis of the latent and active errors that contribute to incidents and near misses. There already exists in medicine a collaborative inclination to openly discuss and consider ways to reduce errors. Both polls found that physicians strongly agree that open communication and analysis of incidents, adverse events, and errors helps them avoid similar mistakes. However, a significant barrier to information sharing among physicians is the fear that this information will somehow be used to prepare a lawsuit against them.
There is no one quick fix to remedy the negative impact and detrimental effects that fear of litigation has wrought on health care providers and, consequently, on patient care. Reversing this trend will require a strong, sustained effort to raise awareness among patients and providers of the seriousness of the situation and the efforts being made in health care to improve patient safety.
Figure 3
State Indemnity Year Allegation
RI $500K 2003 Failure to diagnose brain tumor
CT $500K 2003 Failure to diagnose retinal melanoma (patient died)
IL $1M 2002 Steroid mismanagement (joint degeneration)
TX $850K 2002 Failure to diagnose lung cancer
TX $500K 2002 Negligent retrobulbar to treat pain
TX $500K 2002 Numbness OS post retrobulbar to treat pain
AZ $1.8M 2001 Failure to diagnose/treat pediatric glaucoma
IL $1M 1999 Failure to treat pediatric corneal ulcer in the ER
MA $1M 1999 Stroke post strabismus surgery
AZ $740K 1999 Negligent administration of marcaine via catheter (patient died)
GA $575K 1996 ROP lost to follow up
TX $735K 1995 Failure to diagnose endophthalmitis post cataract surgery
FL $656K 1995 Corneal perforation during blepharoplasty
FL $500K 1995 Garamycin toxicity causing blindness
FL $790K 1993 Failure to diagnose pituitary tumor (patient died)
A Medical Board Investigation Handled Perfectly
By Ryan Bucsi, OMIC Senior Litigation Analyst
Digest, Winter 2007
ALLEGATION: Complaint to state medical board of loss of vision following laser treatment for diabetic macular edema.
DISPOSITION: Medical board did not pursue investigation following defense attorney’s letter of response.
Case Summary
A patient presented to an OMIC insured’s office with a visual acuity of 20/40 in the right eye and 20/60 in the left eye. The physical examination revealed clinically significant diabetic macular edema in both eyes with foveal lipid in the left eye. The ophthalmologist subsequently performed laser treatment on each eye on separate dates. At the follow-up examination, the patient did not exhibit any change in visual acuity or complain of any loss of vision. The diabetic macular edema resolved in the right eye but persisted in the left eye, so the surgeon performed another laser procedure.
The insured’s associate evaluated the patient at her follow-up visit two months later. Although the patient had never called to report any visual acuity loss, she now said that she had not been able to see well since the second procedure. Her visual acuity was 20/400 in the right eye and count fingers in the left eye. She was diagnosed with severe diabetic macular edema in both eyes with possible macular ischemia. The associate recommended a repeat fluorescein angiography to assess the perfusion status of the maculae and to evaluate the vascular status of the retina in each eye.
The patient chose not to return to the insured. The insured then advised her in writing that the advanced state of her condition required that she either come in for a follow-up appointment or see another ophthalmologist; he warned that lack of care could further jeopardize her vision. The patient reportedly sought care with another ophthalmologist as advised.
Analysis
The patient filed a complaint with the state medical board alleging that her compromised vision in both eyes was a result of the second laser treatment. The insured and his attorney worked together to craft a response to the medical board complaint and an expert witness was retained to evaluate the care. The physician’s letter to the medical board started out by admitting that the laser treatment did indeed cause destruction of the macular retinal tissue responsible for central visual acuity but that it could do so only in the treated eye. Notably, the patient had complained of delayed bilateral visual loss, for which another cause needed to be found.
The retained expert supported the physician’s care, opining that the procedures were indicated and appropriate for the patient’s macular condition and that there was no objective or significant change in her visual acuity immediately following either of the treatments. The expert felt that the most likely cause of the patient’s vision loss was her underlying diabetic retinopathy, which had progressed rapidly due to other factors such as duration of her diabetic condition, degree of blood sugar control, underlying vascular disease, compromised renal function, and anemia. This worsening of the patient’s diabetic retinopathy may have led to macular ischemia and progressive leakage of fluid and lipid from incompetent diabetic macular blood vessels.
Risk Management Principles
This case exemplifies how a medical board investigation should be handled. Even though the ophthalmologist was confident that he had met the standard of care, he immediately reported the matter to OMIC’s claims department. The OMIC litigation specialist for the insured’s state promptly referred the case to an attorney, who in turn retained an expert. Within one month of the date of the medical board letter of investigation, the OMIC attorney had worked with the insured to draft a response. Furthermore, the expert signed an affidavit supporting the physician’s care; this affidavit was attached to the letter of response. The medical board decided not to pursue the matter and concluded its investigation. The insured’s willingness to cooperate and work with the OMIC-appointed attorney to craft an effective response was a key factor in averting a potentially costly and time-consuming medical board investigation.
Delay in Diagnosis Key to Endophthalmitis Claims
By Kirk H. Packo, MD
Argus, July 1997
Although endophthalmitis is an accepted rare complication of cataract surgery, it remains a common cause of malpractice claims. Of all claims related to retina-vitreous complications of cataract surgery, endophthalmitis heads the list over other problems, such as dropped lens nuclei and IOLs, expulsive hemorrhage, needle perforation, vascular occlusion, and cystoid macular edema. Endophthalmitis claims filed with OMIC over the past 10 years universally were associated with a poor visual outcome. While it is true that a poor visual result following an accepted complication does not automatically imply malpractice, it definitely invites a closer look from a plaintiff’s attorney.
The Endophthalmitis Vitrectomy Study (EVS), a randomized trial studying the treatment of postoperative bacterial endophthalmitis, showed that management of postcataract infection can result in a reasonable visual outcome. Indeed, 74% of patients managed in the EVS obtained a final visual acuity of 20/100 or better, with 53% achieving 20/40 or better. Still, 26% of patients ultimately ended up with poor final vision, and it is this group that presents the greatest potential liability for the ophthalmologist. (Archives of Ophthalmology, December 1995; 113: 1479-96.)
Initial Acuity Important Predictor
An important predictor of poor visual outcome for all treatment groups in the EVS was the initial presentation acuity. Eyes with worse initial acuity ultimately ended up with worse final vision regardless of the treatment method employed. One-quarter of the eyes managed in the EVS presented with light perception only vision, and this group as a whole ultimately did worse than the remaining 75% presenting with acuity of hand motion vision or better. It stands to reason that from a risk management standpoint alone, one would want to diagnose and treat patients before they have dropped to the light perception only level. The EVS was set up to compare the efficacy of vitrectomy with injection of intravitreal antibiotics vs. vitreous tap/biopsy alone with injection of intravitreal antibiotics. Vitrectomy was found to be superior to tap/biopsy only in the group presenting with light perception only vision. A less invasive vitreous tap/biopsy was equally effective as vitrectomy for the larger group presenting with hand motion or better initial acuity. The EVS thus demonstrated that a more aggressive vitrectomy procedure should be utilized in light perception only patients which, as previously noted, is the group with the largest potential liability.
Delay in Diagnosis Key
The time delay from onset of symptoms to referral to a retinal specialist also correlated with bad initial acuity. Of patients enrolled in the EVS, 26% presented without pain and another 14% presented without hypopyon, two usual “hallmarks” of endophthalmitis. Delaying the diagnosis, particularly in patients who have no pain or hypopyon, “hoping that the postop inflammation will go away” can have disastrous implications for the patient’s final vision. Most OMIC endophthalmitis claims that have settled with indemnity centered on delay in diagnosis as the key element.
Many patients enrolled in the EVS had the use of various routes of preop and intraop antibiotics such as topical, subconjunctival, and within the infusion fluid. While the EVS was unfortunately not set up to determine risk factors for endophthalmitis, it is clear that the use of pre- and intraoperative antibiotics does not totally prevent the occurrence of postop infection. Individual surgeons still must establish their own standard of care for the use of prophylactic antibiotics. The EVS has clearly demonstrated, however, that the use of intravenous antibiotics as utilized in the study is unnecessary in the management of post cataract endophthalmitis.
Endophthalmitis is a potentially devastating complication of intraocular surgery. The mere occurrence of endophthalmitis alone, despite its acceptance as a recognized complication of cataract surgery, still may invite an attempted malpractice claim. The key to success in avoiding liability in these cases is to try to obtain the best final visual outcome possible. The EVS has given ophthalmologists several key risk management principles in this regard.
When Should You Call The Claims Department?
By Paul Weber, JD
OMIC Risk Manager
Digest, Winter 2002
The OMIC Claims Department frequently receives questions from insureds about when it is necessary to report a claims-related matter and what impact such a report will have on their policy, particularly if the patient does not demand damages. Another area of concern for insureds is the need to report claims to regulatory agencies and hospitals.
Q Why should I report a claims-related matter to OMIC if I have not been served with a summons and complaint?
A When you call OMIC immediately after an incident occurs, we may be able to advise you of steps you can take to keep the situation under control. OMIC’s claims and risk management staff have handled hundreds of ophthalmic claims and are available to assist you and answer questions regarding any matter that you think might have the potential of arising into a claim.
Q What matters must I report to OMIC?
A Your OMIC policy states that you shall report any claim. A claim is defined in the policy as a written notice, demand, cross-claim, or lawsuit (including an arbitration proceeding) which the insured receives resulting from a medical incident. Your OMIC policy is claims made, meaning you are covered only if the policy is in force both on the date the incident causing the claim occurs and on the date the claim is first reported. Therefore, you should report any matter to OMIC as soon as possible to protect your insurance coverage.
Q Should I report an incident if there is no lawsuit or other written notice or demand from the patient?
A Your OMIC insurance policy also states that you shall report, as soon as practicable, any medical incident that may reasonably be expected to result in a claim. A medical incident is defined as any act or omission in the furnishing of professional services. A report of a medical incident will be deemed notice of a claim and will trigger your insurance coverage for this event. Again, by reporting a medical incident, you are protecting your OMIC insurance coverage.
Q If I report an incident before it becomes a claim, will it affect my record and cause my premium to go up?
A No. Reporting a patient problem or incident (an occurrence with the potential of developing into a claim) that does not develop into a claim will have no effect on your premium. Early notice of an incident shows that you are proactive and risk management conscious.
Q How does OMIC categorize reports from insureds?
A Each matter is unique and how a file is set up, with the exception of a lawsuit, will depend on the nature of the incident or medical event. The status of a file may change over time, and a matter set up as an incident may later become a lawsuit if the insured is served with court papers. It bears repeating that regardless of how a file is set up, insurance coverage is extended only if the policy is in force both on the date the incident causing the claim occurs and on the date the claim is first reported.
Q What duty does OMIC have to report claims to regulatory agencies such as the National Practitioner Data Bank (NPDB), state medical board, and state insurance department?
A OMIC must report a claim to the NPDB if an indemnity payment is paid on an insured’s behalf. When such a report is made to the NPDB, a copy must be sent to the appropriate state medical board. In addition, a very few state medical boards and insurance departments (e.g., Texas) require that all claims be reported regardless of whether an indemnity is paid. By definition, matters set up by OMIC as incident or miscellaneous files need not be reported to these agencies. OMIC staff will advise and consult with an insured before a report is made to any agency.
Q What matters are reported to hospitals and HMOs for credentialing?
A Because OMIC encourages policyholders to report all potential incidents on a precautionary basis, OMIC reports loss history only if a case closed with an indemnity payment or an actual lawsuit was filed. The insured must give written authorization before OMIC sends a loss history report to a hospital or HMO.
This article is for informational purposes only and is not intended as a modification of the terms and conditions of your OMIC insurance policy. Please contact the Claims Department at (800) 562-6642, ext. 629 or claims@omic.com if you have other questions about reporting a claims-related matter to OMIC.
