Risk Management

Early Reporting of Claims Benefits All Insureds

Digest, Fall, 1995

Allegation

The insured ophthalmologist allegedly failed to properly advise a patient of the nature and risks of a surgical procedure and performed surgery to remove a right lower lid lesion in a negligent manner.

Disposition

Claim was dropped by the patient during the prelitigation stage and case was resolved without an indemnity payment.

Background

Early reporting of a claim allowed this OMIC insured to avoid being named as a defendant in a lawsuit. Because the insured gave OMIC the opportunity to respond to the plaintiff attorney before suit was filed, the physician avoided many of the frustrating and time-consuming efforts involved in preparing a full-blown legal defense. At the same time, the insurer was able to avoid expensive defense costs.

Case Summary

The patient was a 77-year-old male referred to the insured for evaluation of a lesion on his right lower lid. The patient reported that the lesion had been growing slowly for approximately a year. Upon examination, the insured described the lesion as a firm, fixed tumor at the lid margin umbilicated with pearly borders. She diagnosed probable basal cell carcinoma and recommended excision.

Several days later, the insured performed an excision of the tumor and reconstruction of the lid defect with a full thickness skin graft. Five days postoperatively the surgical wound completely dehisced. The insured removed all the sutures and offered the patient a Hughes flap reconstruction. The patient agreed to the Hughes flap, and it was performed the next day.

Postoperatively, the Hughes flap took well and the wound was healing nicely. After two postop visits, the patient suddenly informed the insured that he was changing physicians and had decided to be followed by a plastic surgeon rather than an ophthalmologist. The plastic surgeon subsequently performed a division and inset of the flap without complication, but a revision was later required to correct some residual contracture.

Analysis

Prior to filing a lawsuit, the patient’s attorney wrote to the insured physician alleging that the insured had provided negligent care and suggesting an out-of-court settlement. The insured promptly notified OMIC of the situation, and the claims representative opened a file and began an investigation accordingly. OMIC consulted with an oculoplastic specialist, who reviewed the pertinent medical records and opined that the surgical technique employed by the insured for both the initial tumor excision and the subsequent Hughes flap was within the standard of care. Armed with this supportive expert opinion, the claims representative was ultimately able to convince the patient’s attorney to drop the case before a lawsuit was filed.

The discussions between the OMIC claims representative and the patient’s attorney did not resolve this case overnight. The attorney had reviewed cases in the medical literature which recommended techniques somewhat different from that employed by the insured, particularly in literature authored by plastic surgeons rather than by ophthalmologists specializing in oculoplastics. Based on this research, the patient’s attorney was initially quite confident about the case and formulated a long laundry list of technical criticisms. It took several months of phone calls and correspondence to convince the attorney that the insured had not deviated from the standard of care and that OMIC was fully prepared to defend the case.

Risk Management Principlesand Commentary

Some physicians mistakenly believe that the only time they should call their insurer is when a Summons and Complaint arrives at their door. While it is true that a lawsuit does not commence until a Complaint has been filed in court and served upon the defendant, the prelitigation stage of a claim should be taken seriously and used as an opportunity to try to avoid litigation.

It is not always possible to derail an impending lawsuit. However, OMIC does have the trained staff and procedures in place to deal with claimants and their attorneys directly in an effort to forestall a lawsuit. For these efforts to succeed, insureds must report potential lawsuits early. When successful, this early intervention benefits all policyholders by reducing defense costs that ultimately impact premiums.