Risk Management

Early Reporting and Investigation of Potential Claims Averts a Lawsuit

By Ryan Bucsi, OMIC Senior Claims Associate

Digest, Spring 2005

ALLEGATION:  Negligent upper and lower blepharoplasties, resulting in pain during surgery, lid ptosis, loss of eyebrow hair, and scarring.

DISPOSITION: No lawsuit was filed and the case was closed without an indemnity payment.

Case Summary

An elderly female patient presented to the OMIC insured with a chief complaint of ptosis affecting her vision. The patient did not wear glasses and visual acuities were 20/30 OD and 20/20 OS, uncorrected. Upon physical examination, the insured diagnosed right and left upper lid dermatochalasis, acquired myogenic ptosis, and brow ptosis with superior visual field impairment OU. Surgical options were discussed and two months later, the insured performed therapeutic right and left upper lid blepharoplasties and external levator resection ptosis repairs with direct brow lifts. There were no noted operative complications. During several postoperative visits with the insured, the patient’s complaints included lid redness, lid asymmetry, lashes in the visual field, skin bags nasally with soreness, skin above the lids pushing the eyelids down, and pain when rubbing the eyelids. She also complained for the first time of experiencing pain during surgery. She continued to express her displeasure with the results of the surgery on subse- quent visits, complaining of baggy skin by the bridge of her nose, loss of eyebrows, and occasional irritation to her eyelids. Her visual acuities were unchanged at 20/30 OD and 20/20-2 OS.

The insured informed the patient that the strongest local anesthesia had been used during her surgery and that in-patient surgery with general anesthesia might offer better pain management, but she would have to wait a minimum of three months before undergoing any repeat procedure. The insured also informed the patient that her lids were still healing and that the final benefits of surgery might not be seen for four months after surgery. Subsequently, the patient phoned the insured and informed him of additional proce- dures she had scheduled in another state. This was the insured’s last contact with the patient, nearly five months after her initial surgery. Eventually, the patient requested that the insured pay her $100,000 for her dissatisfaction with her outcome. The insured promptly referred the matter to OMIC.

Analysis

OMIC’s Claims Department has access to several ophthalmology consultants who are able to provide a detailed standard of care review within a relatively short time frame. With the insured’s permission, the patient was contacted by OMIC and informed that her case could be reviewed by a board certified oph- thalmologist to determine if there were issues related to the care provided by the insured physician. She accepted the offer. The reviewer felt that the surgery was definitely indicated based upon the physical findings outlined in the chart, that the technical aspects of the surgery were properly performed, and that the postoperative care was appropriate. Fur- thermore, the reviewer indicated that several of the patient’s complaints were outside the scope and purpose of the surgery, in particular, the complaint of fullness and heaviness in the glabellar region with a crowding of the skin in the nasal quadrants of the upper eyelid. Since the only purpose of the surgery was for visual improvement, correction in this area should not have been anticipated by the patient. OMIC openly discussed these points with the patient, including the fact that the reviewer found the insured’s care to be completely within acceptable standards. The patient decided not to pursue a lawsuit and the case was closed after the statute of limitations expired.

Risk Management Principles

OMIC cannot always avert a claim or lawsuit. Ultimately, it is up to the patient and his or her attorney, if one is involved, to decide whether or not to pursue a complaint. However, if an insured is proactive and reports a potential claim when a patient has voiced significant dissatisfaction, the Claims Department may be able to intervene and conduct an early investigation of the claim. If the reviewing ophthalmologist’s opinion on the standard of care is supportive, patients can sometimes be dissuaded from pursuing lawsuits. Conversely, if the consultant cannot support the insured on the standard of care, a settlement might be reached prior to the patient obtaining an attorney and filing a lawsuit.