A review of paid Ophthalmology claims from 2008-2016 revealed that inappropriate surgical technique and failure to diagnose were the most common allegations advanced. Often times the failure to timely diagnose was not the result of lack of clinical judgment or medical expertise, but rather, was the result of the failure to follow up on a test result, missed appointment or telephone message. Consistent systems and processes are part and parcel of practicing good medicine and are crucial to ensure continuity of care.
Inadequate documentation was noted to be present in 60% of the cases reviewed, and was the most prevalent factor contributing to the inability to defend against allegations of inappropriate technique or failure to diagnose. A case in point involved a 39-year-old patient who was referred to the defendant ophthalmologist with complaints of headaches, halos and eye pain. The only significant finding on physical exam was elevated intraocular pressure. The primary diagnosis was migraine with a secondary diagnosis of narrow angle glaucoma “by history”. A follow-up visit was scheduled for 6 months. While the patient was instructed to return to the office if she experienced repeat symptoms prior to the follow-up visit, such was not clearly documented. One week prior to the scheduled follow-up visit, the patient called the office and requested an appointment due to a recurrence of the headaches. She denied any other symptoms so the nurse instructed her to keep the upcoming appointment but to call back if there were any new symptoms or if the headache worsened. Unfortunately, this telephone exchange was not documented. The patient did not keep the scheduled follow-up appointment. The physician would later testify that staff attempted to reach the patient to reschedule, but, again, such effort was not documented. Two years later, the patient self-referred to another ophthalmologist with complaints of increased vision loss and was diagnosed with angle closure glaucoma. The patient filed a lawsuit against the first ophthalmologist alleging failure to diagnose. The doctor argued that there were no objective findings at the time of the patient’s initial presentation to support further testing, and that her failure to keep the follow-up appointment kept him from further treating her symptoms. While his medical judgment to follow the patient’s condition rather than perform diagnostic testing at the time of the initial presentation may have been defensible, the patient’s allegations that she called the office with continued symptoms but was denied an appointment, and the failure of any documented evidence of attempted follow-up of the missed appointment, worked against the physician.
Another example of woefully inadequate records compromising the defense of the case involved a 62-year-old patient with a history of severe diabetic retinopathy and coronary artery disease who suffered a cardiac arrest during a retrobulbar anesthetic block. He was resuscitated but died a few days later from severe anoxic encephalopathy. The family of the patient sued, alleging that improper technique was used during the administration of the block. They alleged specifically that the physician failed to aspirate the needle to check for the possibility that such was placed in a blood vessel before administering the retrobulbar injection. They further alleged that this failure resulted in an intracranial injection of the Lidocaine with epinephrine, likely through the optic nerve sheath, which caused severe respiratory depression and cessation of breathing. Unfortunately, the procedure record was dictated 11 days after the adverse event and lacked the details needed to sufficiently defend the case. Specifically the record failed to indicate: (1) that any aspiration took place prior to the injection; (2) the amount of Lidocaine; (3) the details of the epinephrine mixture; and (4) the type of needle used. The family also alleged negligent resuscitative measures on the part of the physician and staff which was difficult to defend in light of the fact that no code record was completed to reflect interventions with the AED, compressions and oxygen.
Communication issues likewise played a part in the initiation of a number of the claims reviewed as well as the indefensibility. Problems with communication were identified in 29% of the claims reviewed, nearly all of which involved direct physician to patient communication breakdown. The failure of the physician to discuss material and significant risks associated with the procedure, as well as expected outcomes, oftentimes led to unrealistic expectations, patient frustration and dissatisfaction in the face of a complication. Further, the failure to document the process when it did occur left the door open for the plaintiffs to contend that they did not receive the relevant and required information and, if they had, would have sought more conservative treatment or a second opinion.
There were also instances of failing to properly educate patients on the specific risks associated with ocular medications to reduce inflammation, pressure and pain, and of what signs and symptoms would warrant a phone call or office visit.
Although not present in the cases reviewed, national data reflects continued litigation stemming from a failure to warn of the risks of ambulating and operating a motor vehicle following the application of dilating drops. Physicians should engage is a clear discussion about the possible side effects associated with dilating drops such as blurry vision for 4 – 8 hours as well as sensitivity to light. Precautions about driving or operating machinery until the effects wear off and recommendations about protective eye gear should likewise be discussed and documented.
Shelly Weatherly is Vice President, Risk Education and Evaluation Services for SVMIC. Ms. Weatherly graduated from the University of Tennessee School of Law, is a member of the Nashville and Tennessee Bar Associations, and has been with SVMIC for 26 years. Prior to joining SVMIC, Ms. Weatherly served as Law Clerk on the Tennessee Court of Appeals for the Honorable William C. Koch, as well as on the U.S. District Court for the Middle District of Tennessee under the Honorable Charles Neese. Ms. Weatherly leads SVMIC's Risk Education and Evaluation Services. Prior to 2015, she developed and administered the company's Risk Evaluation Services and earlier served as a Claims Attorney. She is a frequent speaker on risk management, liability assessment, and professional liability topics at medical professional association meetings, medical schools and residency programs, and industry seminars.
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