Risk Management

Criticism Aimed at Colleagues Can Prompt Malpractice Litigation

By William D. Noonan, MD, JD

Argus, January, 1996

One of the legal dangers in a managed care environment is that eye patients are sometimes given inadequate or inappropriate eye treatment by primary care physicians and nurses before they are referred to ophthalmologists for definitive care. As a result, eye specialists are more likely to see advanced cases or inadequately treated patients who are at greater risk for an unfavorable outcome that could result in malpractice litigation.

The specialist’s initial reaction may be smug satisfaction that primary care physicians and nurses will have to bear the legal consequences of providing specialized eye care without specialized training. This satisfaction evaporates, however, when the ophthalmologist is also named as a defendant in a lawsuit even though his or her only role may have been to improve the situation as best as possible. When lawsuits are filed, almost every professional person who participated in the care of the patient may be named as a defendant. Hence, it can be an act of self-preservation to resist the urge to share with any patient your opinion that a previous treating physician provided substandard care.

This is illustrated by the case of a 39-year-old woman who was hammering a nail into a bookcase when the nail flipped back against her left eye. A primary care physician evaluated her that same day in an emergency room. The physician instilled fluorescein in her eye and diagnosed a corneal abrasion. Visual acuity was not determined. She was treated with gentamicin ointment, a cycloplegic and a narcotic analgesic, and told to consult an ophthalmologist if the eye was unimproved the following day.

The next afternoon she was seen in an ophthalmology clinic, complaining of unremitting left eye pain and visual loss. Visual acuity in that eye was count fingers at one foot, and she had marked periorbital edema, chemosis and conjunctival injection. On slit lamp exam, there was a corneal laceration and a clear defect in the iris at 5 o’clock. The lens was completely opaque, intumescent appearing, and 5mm thick by ultrasonographic examination. The corneal wound was Seidel positive, and there was 1+ cell and flare in the anterior chamber. Intraocular pressure in that eye was 28. The patient underwent cataract extraction with repair of the corneal laceration. Her postoperative recovery was uneventful with eventual visual acuity of 20/25.

The primary care physician had incorrectly diagnosed the patient’s ruptured globe as a corneal abrasion, in spite of an obvious hole in the iris. This oversight delayed primary closure of the wound and exposed the patient to an increased risk of endophthalmitis. Although the patient was fortunate to have a favorable visual outcome, there was a risk of unnecessary blindness. At first it would seem that the ophthalmologist could best be insulated from liability by informing the patient that her injury had been misdiagnosed, but that everything possible would now be done to save the vision in her eye.

That kind of candor, however, only tends to promote malpractice litigation. Many patients who would not otherwise consider litigation are prompted to sue when a physician criticizes the care previously provided by a colleague. Once litigation is initiated, even the “blameless” specialist who fixed the problem may be named as a defendant.

Hence, the safest course for reducing one’s risk of litigation and legal liability is to carefully document the patient’s condition on presentation, provide high quality care with a realistic assessment of probable outcomes, and accurately present the facts of the situation to the patient while refraining from criticizing a medical colleague. Not all diagnostic errors are ipso facto negligence; therefore, it is always best to limit discussions with the patient to findings supported by objective data and to avoid speculation. If the patient questions the care of another health care provider, encourage the patient to talk directly with that provider.

It is naive to believe that less criticism of colleagues will eliminate or even substantially reduce medical malpractice litigation. A patient with postoperative endophthalmitis who undergoes enucleation knows something went wrong and will not need prompting to consider legal action.

But a variety of other conditions (such as missing an early diagnosis of glaucoma or overcorrecting a radial keratotomy) are within the realm of competent, but less than optimal, ophthalmic care. Patients may be dissatisfied with such an outcome but reluctant to consider litigation until given “permission” by a critical subsequent ophthalmologist. Under these circumstances, it is important to refrain from criticizing a colleague and to help maintain civility in medicine even as the profession is increasingly turned into a business by health care companies.