Risk Management

Nips, Tucks and Lawsuits

By Paul Weber, JD

Digest, Summer 1998

Everyone involved considered the bilateral upper and lower lid blepharoplasty a cosmetic procedure, including the 54-year-old patient who presented to the OMIC insured with complaints of difficulty driving. Three weeks post-op, the patient had epithelial defects, was unable to wear his contact lenses and could not fully close his eyes. He developed corneal ulcers and subsequently sought a repair of cicatricial lower lid ectropion by a subsequent provider. In his suit, the patient claimed that in addition to improperly performing the blepharoplasty, the insured had misrepresented the number of lid surgeries he had performed.

Inflammatory statements such as these are not uncommon in a lawsuit and although they raise credibility issues, these often can be overcome. What could not be overcome in this case, however, was the allegation of poor pre-op examination. The ophthalmologist had failed to take any pre-op photos, had not tested lower lid horizontal laxity, and had not performed a Schirmer’s test. Although he claimed to have measured horizontal laxity during a slit lamp examination, there was no documentation to support this. This lack of thoroughness in performing the pre-op examination bolstered the plaintiff’s claims that the insured lacked the necessary experience to properly perform the procedure. The case settled with a large indemnity payment.

Perhaps it’s the elective and/or cosmetic nature of many oculoplastic procedures that makes proper patient selection and documentation of the patient’s history, physical, pre-op examinations and diagnosis so essential to a good patient outcome and successful defense if a claim is filed. Since many of these patients are experiencing little, if any, demonstrable functional impairment, documentation of the nature of the patient’s problem, both subjectively and objectively, is critical.

Likewise, lack of informed consent is often added to claims of improper performance. Besides a thorough written consent form signed by the patient well in advance of surgery, there are other approaches the ophthalmologist should employ to ensure that the patient is aware of the goals and possible outcomes of the proposed surgery and understands how he or she will be cared for throughout the process.

Be a Teacher

At a session on documentation and patient selection at the annual meeting of the American Society of Ophthalmic Plastic and Reconstructive Surgery, John W. Shore, MD, presented a history and physical form he has developed in his practice. The form includes sections for measuring “eye protective mechanisms” (tear film, basal tear secretions) and horizontal laxity measurements of the lower lids. Had the OMIC insured in this case used such a document, he would have been prompted to document important information that would have made it difficult for the experts and plaintiff to criticize his preoperative evaluation and dispute whether a critical part of the exam was performed.

Dr. Shore describes his approach to patients considering oculoplastic surgery as that of teacher. Beginning with the first visit and continuing throughout, anytime the patient is given patient education materials, it is documented in the chart. Dr. Shore conveniently does this while writing his Impression and Plan for the patient. From a list of nine handouts, Dr. Shore circles those that are given to the patient. Directly below the Handout section of his H&P is a Discussion section. Again, Dr. Shore selects from a list of six possible discussions the one he has with the patient. Logically, the Handout and Discussion sections come at the end of the H&P near Impression and Plan since only after a thorough exam is it possible to determine which discussion to have and which handout to give to the patient.

During discussions with the patient, Dr. Shore finds it helpful to use a diagram of the face and eyes as a “chalkboard” to explain the goals of surgery (see above). He dates and places the diagram in the medical record and gives a copy to the patient. Sometimes it may be necessary to use more than one diagram to explain a procedure, but these diagrams will go a long way toward helping negate claims that the physician did not take the time to discuss and explain the surgical goals and objectives in a manner the patient could understand.

Family Ties

Often, it is just as important to establish rapport with the patient’s family as it is with the patient. Throughout the treatment process, include in your documentation any time a family member is present; e.g., “reviewed goals of surgery with family and patient once again,” “answered all questions; offered to meet with patient and family once again prior to surgery.” Document if the family member also received and was encouraged to read handouts and other written material provided to the patient. This will be helpful because often it is a concerned family member who encourages the patient to seek legal representation when there is a real or perceived problem arising from surgery.

Ensuring that the prospective patient has reasonable expectations should be foremost in the ophthalmologist’s mind throughout the course of treatment. It is important not to overstate expectations. This cannot be emphasized enough given the public’s growing demand for cosmetic oculoplastic procedures such as CO2 laser skin resurfacing, liposuction and laser hair removal. Many patients come to the physician with very high expectations for these cosmetic procedures based upon advertisements featuring glowing patient testimonials or the recommendation of a friend who was pleased with the results of a particular procedure or the skill of a particular surgeon.

The ophthalmologist needs to explore the patient’s motivation and prior understanding of what the procedure can and cannot accomplish, not only as part of the informed consent process but also as part of the patient selection process. Does the patient understand that while most cosmetic procedures will help improve one’s appearance, there are no guarantees? That even when the procedure is executed well, results may not be apparent for months? Or that additional procedures may be necessary to achieve results the patient will be satisfied with? One defense attorney has suggested that patients considering cosmetic procedures be tested following the informed consent process to determine their understanding of the risks and goals of surgery similar to the tests now given to refractive surgery patients.

Damage Control

Complications sometimes arise even when the most meticulous surgical technique and care are provided. When an adverse event occurs, it is important to promptly discuss the problem with the patient and family. Be empathetic and answer their questions. Significant delays in reporting problems will only make the patient and family suspicious. When another health care provider has caused the complication (e.g., an anesthesia mishap), it is important not to lay blame, but to ensure that the patient is kept fully informed by the responsible party about what has occurred and what is being done to remedy the problem.

Document the date and time when complications were disclosed. This disclosure of complications will start the clock ticking with respect to the statute of limitations within which a patient may file a lawsuit. Even when the complication is one that the patient has been informed about prior to surgery, it is important to give greater attention and consideration to this patient. Inform staff that the patient has had a complication and should not be kept waiting for appointments. If a wait is unavoidable, the ophthalmologist should be alerted and personally handle the matter. Calls from these patients and their family members should be given the highest priority. Efforts to keep the patient satisfied with the ophthalmologist’s service is another way of showing empathy for the patient and family. Empathy and understanding will not be construed as an admission of negligence.

Avoid complications by giving patients detailed postop instructions and seeing them as soon as possible when they call with complaints. Remember that postop patients often need support and encouragement because they are still taking medication or are in the healing stage of their treatment, which could have an impact on their final outcome.

Document all telephone conversations with the patient or other health care professionals concerning a patient’s problem. One oculoplastic case had to be settled with a large indemnity payment because the OMIC insured allegedly refused to respond to a call from the ER about a patient who was having postoperative bleeding following bilateral levator aponeurosis repair. Although the insured maintained that the information given to him was not significant enough to warrant an ER visit, he had no documentation to support what had been said.

In summary, oculoplastic surgery must be approached in a thorough and meticulous fashion from pre-operative examination through postoperative follow-up. Good documentation and an ongoing calm, reassuring attitude on the part of the surgeon and the staff will go a long way toward minimizing claims and avoiding adverse outcomes.

Mr. Weber gratefully acknowledges the generous help of oculoplastic specialists John W. Shore, MD, and Michael J. Hawes, MD, for their contributions to this article.