Risk Management

OMIC’s Trial Record Favors Ophthalmologists

By Paul Weber, JD
Mr. Weber is OMIC’s Risk Manager.

[Digest, Winter 2000]

Being sued for malpractice can be a shocking as well as depressing experience. When a lawsuit is served, an ophthalmologist’s worst fear is the threat of an adverse jury verdict. This fear of a public judgment is certainly understandable, but it is important to realize that most medical malpractice lawsuits never go to trial and adverse jury verdicts are rare.

Throughout OMIC’s 12-year history, insureds have been served with over 650 lawsuits, 464 of which have closed. The OMIC insured prevailed in 326 of these closed suits, including 32 defense verdicts out of 41 jury trials, a 78% trial win record. Eight of the jury trials resulted in a plaintiff verdict, approximately 2% of all closed lawsuits filed against OMIC insureds since 1987.¹

More than 40% of OMIC cases that went to trial, as well as one-third of all closed claims, were related to the treatment of cataracts. This is due, in part, to the high number of cataract surgeries performed each year by ophthalmologists (approximately 1.6 million based on 1994 HCFA data). Furthermore, the cataract patient is at risk of incurring an injury before, during, and after the procedure. For example, three cataract patients filed suits against OMIC insureds for improper administration of retrobulbar anesthesia and five others alleged substandard postoperative care resulting in failure to diagnose endophthalmitis.

Other trials resulted from lawsuits arising from patient office exams (8), retinal procedures (6), oculoplastic procedures (3), minor procedures (2), and “other” surgeries (5), including RK, glaucoma, muscle exploratory and biopsy, corneal transplant, and strabismus.

The majority of OMIC insureds whose cases go to trial are general ophthalmologists, not surprising given the fact that general ophthalmologists represent the largest segment of OMIC insureds. Other insureds with a different practice focus that OMIC has represented at trial include cataract/IOL, vitreoretinal, oculoplastics, cornea, pediatric, and glaucoma. Twenty-four trials involved allegations of improper performance of surgery, while alleged failure to diagnose and delayed or wrong diagnosis accounted for twelve trials. The remaining five trials resulted from allegations of delay in performance of surgery, failure to refer, unnecessary surgery, and failure to monitor or treat.

Severity and Damages

Plaintiff attorneys prefer to represent clients who have suffered a significant loss of vision or other catastrophic injury because they are more likely to stir jury sympathy and drive up awards. Severity by itself, however, does not determine whether a case is settled or goes to trial. OMIC has tried cases where the injury was truly catastrophic and won. One such case, brought on behalf of a bilaterally blind baby, had strong jury sympathy and high exposure to potentially large damages. Nevertheless, OMIC felt the case was defensible and won at trial thanks to good documentation, strong expert witnesses, and the credibility of the insured ophthalmologist.

That said, OMIC’s trial data does suggest a relation between the extent of the injury and the dollar amount awarded by a jury. In five of the eight plaintiff verdicts, the patient’s final vision was count fingers or worse and the average award was $452,000. In the three cases where the patient’s final vision was less catastrophic (20/60, 20/40, and reduced range of motion/diplopia), the average award was $283,000.

Trial Costs

The average lawsuit costs approximately $17,887 to defend. Lawsuits that go to trial cost an average of $83,267. A number of factors influence the cost of a trial: type of case, venue, defense counsel, and number of experts and other witnesses who will testify. Defense attorney fees are generally the most expensive item in a case and will rise according to the complexity of the case and the number of expert witnesses and subsequent treating physicians involved, which can be significant in a medical malpractice case. Economists, psychologists, and rehabilitation experts also may be called as witnesses – sometimes from out of state – and each must be paid for their time and travel expenses. In some jurisdictions, the defense must reimburse hourly or half-day fees when deposing plaintiff’s experts and subsequent treating physicians. A case with multiple experts and treating physicians, such as the one involving the bilaterally blind baby, can become quite expensive, although it is money well spent if it averts an even costlier plaintiff verdict.

Settlement or Trial?

The decision to settle or try a case is reached by consensus between the insured, defense counsel, and OMIC and is based on the advice of counsel, information developed during discovery, and the case analysis by retained experts. OMIC never settles a case without first seeking the insured’s consent, but before taking a case to trial, the defense team must believe the insured has a reasonable probability of prevailing. Several factors influence this decision:

Venue. How have juries in this particular county or geographical location decided similar cases? How high or low are the awards when a defendant loses?

Pretrial discovery. Do the medical records and other facts and evidence support the defendant’s course of treatment?

Analysis of expert witnesses. What are the strengths and weaknesses of the insured’s case?

Sympathy for the plaintiff. Is this a severely injured pediatric patient or a bilaterally blind head of household?

Strength of key witnesses. Will the plaintiff make a good impression on the jury? Is the insured able to withstand tough cross-examination?

There have been some instances where OMIC deemed a case to be defensible, but the insured wanted to settle. Sometimes an insured fears that personal assets will be exposed if there is a verdict above policy limits. Other times there is fear of exposure at a public trial and possible loss of reputation in the community. While these fears are reasonable, they should not be the deciding factors in whether to settle or go to trial. If a case does proceed to trial, OMIC’s defense team will work closely with the insured to build the confidence and skills needed to make an effective witness. Insureds also can participate in OMIC’s physician support network where they can confidentially discuss their anxieties and concerns related to their lawsuit with colleagues who have been through the litigation process themselves.

While every lawsuit and trial is unique, OMIC’s access to the educational resources of the American Academy of Ophthalmology and its own experience gleaned from hundreds of ophthalmic claims ensures the best possible defense available to ophthalmologists.

Notes:

1. Only lawsuits were reviewed for this article. It should be noted that as of year-end 1999, OMIC insureds had incurred a total of 1,124 claims and lawsuits. Approximately 630 (77%) of these claims and lawsuits were closed with no indemnity payment to the plaintiff. Claims occur when no formal lawsuit is filed but the patient (or representative) demands money for alleged injuries arising from professional services.