Medical Legal Briefs

• American Jurisprudence
• Informed Consent
• Emergency Cases

American Jurisprudence

Each malpractice case is a story that involves multiple players including the plaintiff and their family, lawyers on both sides; insurance companies; the ophthalmologist and his personal attorney or colleagues that might have been confided in.

Sometimes the initial salvo from the plaintiff will be a letter from his attorney outlining the case for malpractice and offering to settle “amiably” or mediate to avoid litigation. The physician will review this complaint with his carrier and decide what course of action to take. The gritty calculus ensues–how much the case might be worth if it goes to trial; what is the likely outcome in percentage terms; how much will it cost to defend the case; and so on.

Many cases are adjudicated based upon what is in the medical record or can be inferred.   I have been involved in many cases in which the first error was compounded by subsequent missteps.   In other cases, there was opportunity to rectify an error but magical thinking or in attention to detail prevented good judgment.

Expert experience does matter.  The preparation for a deposition and trial testimony are rigorous. The ability to recall details and he ability to remain nonplused under cross examination mark the experienced expert.   Being reachable with the ability to churn out work under time deadlines and on budget is another hallmark.

While the malpractice carrier will cover the costs of litigation and the settlement amount up the policy limit, the deposition process is nonetheless stressful.   If the case goes to trial, the ophthalmologist must time take time off from his/her practice to attend the proceedings. Anger or a feeling of victimization may occur.

I have seen cases drag on over 10 years. Various procedural delays and changes in counsel can be to blame.  At time passes the litigants can developed more problems with their eyes, some relating to the initial injury and others merely the end products of aging. Generally case delays favor the defendants.

Informed Consent

Surgical mishaps generate disappointment when things do not go as planned. Informed consents can protect a physician in case of a mishap.

If a complication occurs, the old saw is that if the patient was told ahead of time, it is his problem, if he is told afterwards, it is YOUR problem.  One never wants to hear a patient say that had that know THAT, they would not have had the procedure done.

If there is something particularly challenging about a case, additional concerns can be expressed. I was at a very skilled surgeon’s office who was seeing a patient with a rock-hard cataract.  He explained to the patient that there was a likelihood of needing a second procedure and added this to his consent form.

Emergency cases

Emergency cases can be problematic.

I had one case recently of a 90-year-old woman (AB) who fell and hit her eye on a hard surface.   She was examined an ED physician and was diagnosed with a corneal abrasion.  (Visual acuity and eye pressure were not recorded). He was working in an ED without ophthalmology backup or call.  ED doctors are not competent to do ophthalmoscopy or slit lamp examinations and often rely on MRI’s, CT scans and ultrasounds to assess posterior pole (retina and optic nerve) problems.

She was given the name of an ophthalmologist who saw her a three days later.    At his office, he found a ruptured globe, vitreous hemorrhage, and a near total RD.

A retinal specialist was contacted by phone and the case described to him. He advised enucleation (removal of the eye).  He said it would be heroic to try to save the eye.

Would the eye have been treatable with an immediate referral from the ED to a tertiary care center?

Is it advisable for the “not- on- call” ophthalmologist to avoid seeing patients referred from the ED who are many times “non-diagnosed” or misdiagnosed?